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[2018] ZALCJHB 379
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NUMSA obo Members v MEIBC and Others (JR565/16) [2018] ZALCJHB 379; (2019) 40 ILJ 399 (LC) (18 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JR
565/16
In
the matter between:
NUMSA
OBO
MEMBERS Applicant
and
THE
MEIBC First
Respondent
LOUIS
KRUGER N.
O
Second
Respondent
IEAB
Third
Respondent
AUTO
INDUSTRIAL MACHINING (PTY)
LTD
Fourth
Respondent
Heard
:
11 October 2018
Delivered
:
18 October 2018
Summary:
A review in terms of the provisions of section 158 (1) (g) of the
LRA – The function to be reviewed must be one provided for
in
the LRA. The jurisdiction of the Labour Court depends on whether the
function performed or purported to be performed is one
provided for
in the LRA. The grounds upon which the function, if one provided for
in the LRA, is to be reviewed is one permissible
in law. Held (1) The
application for review is dismissed for want of jurisdiction,
alternatively on its merits. Held (2) Each party
to pay its own
costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This application is brought in
terms of section 158 (1) (g)
[1]
of the Labour Relations Act
[2]
(LRA). The applicant seeks to review and set aside a resolution made
by the third respondent and the exemption licence so issued.
The
application is opposed by the fourth respondent.
Background
facts
[2]
To a
large degree the facts pertinent to this application are common
cause. Briefly, they are: The applicant and the fourth respondent
are
parties to a collective agreement (Main Agreement). Following a
national strike over wages, a collective agreement was concluded
in
terms of which a wage increment was to happen over a period of three
years in staggering percentiles. The fourth respondent
applied for
exemption from the wage agreement to the first respondent. The
exemption was refused. Aggrieved thereby, the fourth
respondent
lodged an appeal to the third respondent. Clause 23 of the Main
Agreement, provides for exemptions.
[3]
The third respondent, after considering the appeal, resolved to grant
exemption and duly issued an exemption license. Aggrieved
by the
resolution and the duly issued license, the applicant launched the
present application.
Grounds
of Review
[3]
The applicant chose to launch a review
application. The allegation is that the third respondent failed to
apply its mind in that
its conclusion is not logically connected with
the overall assessment and impact of the evidence that was placed
before it. The
decision reached by the third respondent is not one
that a reasonable decision maker can arrive at.
Evaluation
The
issue of jurisdiction
[4]
Almost a
century ago, Innes CJ in
Johannesburg
Consolidated Investment Co v Johannesburg Town Council
[4]
distinguished only three types of judicial reviews in South Africa.
Those are, review of decisions of inferior courts; the common-law
review of decisions of administrative authorities and a wider form of
statutory review. The review before me is alleged to be the
third
type – one contemplated in terms of section 158 (1) (g) of the
LRA. The precise and extent of the power in this type
always depend
on the particular statutory provision concerned. The standard of
review for this type was set out by the Court in
Simelane
v Minister of Justice and Constitutional development
[5]
thus:
‘
The
test to be employed in reviewing the substance of a decision of the
committee
is
an enquiry into the presence of rational connection between the
decision taken and the facts on which the decision is based,
as well
as the reasoning of the decision…’
[5]
Thus, before a court of law exercises its judicial
review powers regard must be had to the provisions of the enabling
section. To
my mind the review is limited to the functions provided
for in the LRA. The phrase “
provided
for
” means amongst others to set
down as a stipulation or requirement. In other words, the function
must be one stipulated in
the LRA. Powers and functions of a
bargaining council are stipulated in section 28(1) (a)-(l) of the
LRA. My closer reading of
the provisions suggests that the function
to enforce those collective agreements and to prevent labour disputes
come closer to
the matter before me. However, it is my reading of the
Main Agreement that it is not the power and function of the third
respondent,
whose decision is sought to be impugned, to conclude
collective agreements. The power and the function resides with the
first respondent.
Therefore, only the first respondent is empowered
to enforce the concluded collective agreements and/or to prevent and
resolve
labour disputes.
[6]
The dispute resolution functions are to be
performed by the first respondent. Those functions are stipulated in
section 51 of the
LRA. In terms of the Main Agreement, the second
respondent is an independent body. It is not a committee of the first
respondent.
Its functions are stipulated in the Main Agreement. The
Main Agreement is a collective agreement in terms of the LRA. Section
23
deals with the legal effect of collective agreements. Section 24
makes provision for dispute resolutions. Primarily, a collective
agreement is obligated to provide for a procedure to resolve any
dispute about interpretation or application of the collective
agreement. The Main Agreement does provide for such a procedure. A
review in terms of section 158 (1) (g) is not one such procedures.
[7]
Effectively,
I am of a view that considering and finalizing an appeal against a
refusal or granting of an exemption is not a function
provided for in
the LRA. In
Shimange
v Bonitas Medical Fund and others
[6]
,
Landman
J had the following to say:
‘
[5]
In my opinion the reference to a function or an act or omission is
reference to any person or body exercising an “official
activity”. An exercise of administrative power such as where
the CCMA decides on the condonation of a late referral to it.
A
dismissal although it may correctly be described as an act is not an
official act. It is private law act which is governed by
the LRA. It
follows that an employer who dismisses an employee is not performing
a function, act or omission which is susceptible
to review under s
158 (1) (g).’
[8]
I am in full
agreement with the above statement. I venture on to say, in
considering and finalizing an appeal, the second respondent
was not
performing a function as contemplated in section 158 (1) (g) of the
LRA. Thus, in my view, the resolution and the issuing
of the
exemption certificates are not susceptible to review under section
158 (1) (g) of the LRA. I raised the issue of jurisdiction
with the
representative of the applicant. He placed reliance on
Ncungana
& others v Bargaining Council for the Liquor Catering &
Accommodation Trades, South Coast, Kwazulu Natal &
another
[7]
.
In this matter, my sister Pillay J did not deal with the question
whether granting of exemption from any part of the Fund Agreement
was
a function as contemplated in section 158 (1) (g). Unlike in the
matter before, the exemption decision was taken by the Bargaining
Council itself. However, the court remarked as follows:
‘
[21]
It is not clear from the pleadings whether the applicants were
members of a trade union that was party to the Council …
This
issue is also relevant to deciding whether the refusal of exemptions
ought to have been referred to the independent exemptions
body
established in terms of section 32 (3) (e) of the LRA. If they were
not members of a trade union that was party to the Council,
then the
dispute about the refusal of the exemption had to be referred to the
exemptions body and this Court would have no jurisdiction.’
[9]
It is apparent to me that my sister was more
concerned with the binding nature of the collective agreements
concluded within the
bargaining council. Such agreements bind only
parties to the council unless so extended to non-parties by the
Minister. Section
32 (3) (e) deals with one of the requirements to be
satisfied before a Minister may extend a collective agreement
concluded in
the bargaining council. It is unclear to me why the
provisions of section 32 (3) (e) were relevant for the determination
of jurisdiction.
[10]
The Minister is empowered to extend collective
agreements to non-parties. If the Minister is not satisfied that
provision has been
made in the collective agreement to be extended
for an independent body to hear and decide an appeal against refusal
for exemption
from the provisions of the collective agreement, the
Minister may refuse to extend. The application that served before
Court, in
Ncungana,
was a review of a decision by the bargaining council to refuse
exemption from the provision of the fund agreement. It does seem
that
the jurisdiction issue was more on the issue that internal remedies
of appeal would need to be exhausted by non-parties. As
I see it, if
a collective agreement to be extended does not contain provisions for
appeal by an independent body, the Minister
would simply not extend
such a collective agreement. The net effect thereof would be that the
collective agreement so concluded
in the bargaining council would not
bind non-parties.
[11]
It may be so that the function performed in that
matter was that of enforcement of a collective agreement within the
contemplation
of section 28 (1). In other words, in refusing the
exemption from the fund agreement, the bargaining council was
enforcing the
fund agreement. In
casu
,
the second respondent, in my view cannot conclude a collective
agreement, thus it cannot have powers to enforce a collective
agreement. To my mind, this authority does not assist the applicant.
I was unable to find any other judgment that may have followed
Ncungana
.
[12]
My brother,
Lagrange J, in
Argent
Steel Group t/a Sentech Industries v MIBCO and others
[8]
,
referred to
Ncungama
without necessarily elevating it to being an authority that
jurisdiction arose. On the issue of jurisdiction, my brother simply
concluded thus:
[1]
…Consequently, the application concerns both a review of the
dismissal of the appeal against original decision and the
original
exemption ruling itself.
The court’s jurisdiction to hear
the reviews is derived from s158 (1) (g) of the LRA…
[13]
My brother did not state why jurisdiction derives
from the section. He did not say because the dismissal of appeals
against exemptions
amounts to a function contemplated in the section.
In my judgment, determining the true nature of the function to be
reviewed,
is a jurisdictional fact to be established before
exercising jurisdiction. It is one of the functions of this court to
determine
what the true dispute is before exercising jurisdiction.
However, in his judgment, my brother made reference to a clause in
the
MIBCO agreement dealing with enforcement. He first referred to
the requirements for a constitution of a bargaining council. Section
30 (1) (k) provides that the constitution must provide for a
procedure for exemption from collective agreements. A constitution
that does not provide for exemption in not compliant. A non-compliant
constitution may lead to a refusal to register a bargaining
council.
Before applying for registration, parties must in terms of section 27
(1) (a) adopt a constitution that meets the requirements
of section
30.
[14]
A constitution of a bargaining council is not a
collective agreement. It is simply a founding document. In the
Argent
matter, reference to section 30 (1) (k) was made in order to set out
the legal framework. Such reference has nothing to do with
the
jurisdiction question that concerned me in this matter. Like in this
matter, an employer –
Argent
applied for exemption from paying wage increases. After its exemption
was refused by the exemption board,
Argent
appealed to an exemption appeal board. The procedure for exemption
and appeal was provided for in the MIBCO agreement.
[15]
I am yet again of a view that the
Argent
judgment is not authority for the proposition that refusal of an
exemption or an appeal of the refusal is a function contemplated
in
section 158 (1) (g). If it is, for reasons spelled out above, I
choose not to follow it. Instead, I agree with Landman J in
Shimange.
I do find that in granting or refusing
an exemption the relevant body, in this instance, the second
respondent, did not perform
a public function, thus not a function
contemplated in section 158 (1) (g). I therefore conclude that
section 158 (1) (g) cannot
be invoked to find jurisdiction.
Accordingly, this court lacks jurisdiction.
Is
the true nature of the dispute not one involving interpretation and
application of a collective agreement?
[16]
The issue of exemptions is provided for in the
Main Agreement. It is clear that in the applicant’s view, the
exemption ought
not to have been granted since the requirements of
granting an exemption were not met – evidence of financial
hardship. Differently
put, the applicant laments non-compliance with
the provisions of the Main Agreement. Therefore, does that not make
the dispute
one of application and interpretation of a collective
agreement to be dealt with in terms of section 24 (1) of the LRA.
[17]
The meaning
of the phrase
interpretation
and application
of a collective agreement has received the attention of the judiciary
and academics. Revelas J concluded that a situation of non-compliance
with a collective agreement constitutes a dispute of application of a
collective agreement thus justiciable in the Commission for
Conciliation, Mediation and Arbitration (CCMA).
[9]
In
Hospesa
obo Tshambi v Department of Health: Kwazulu Natal
[10]
,
Sutherland JA writing for the majority had the following to say:
‘
[25]
In my view, the phrase interpretation or application are not
disjunctive terms, and ought to be read as being related, i.e.,
disputes about what the agreement means and what it is applicable to.
This fits appropriately with an understanding of the section
as a
device which is ancillary to collective bargaining.’
[18]
Sutherland
JA disagreed with an understanding that any alleged breach of a term
of a collective agreement means the dispute is automatically
one that
falls within section 24 of the LRA. In an earlier decision, the
Labour Appeal Court held that if the real dispute between
the parties
was about an interpretation and application of the collective
agreement, the Labour Court lacks power to determine
the matter.
[11]
In this matter, it is required of this Court to consider whether the
provisions of clause 23 were properly applied. In order to
do so,
this court may be required to interpret the Main Agreement in order
to establish proper application.
[19]
For reasons as set out above, I am of a firm view
that the real dispute is about application and interpretation of
clause 23 of
the Main Agreement. For this reason, too, this court
lacks jurisdiction.
Merits
of the review.
[20]
If I am wrong on the jurisdiction issue, I
continue to consider the merits of the review hereunder. In motion
proceedings, a party
stands and fall by its founding papers. Failure
to apply one’s mind entails considering irrelevant
considerations and ignoring
the relevant ones. In performing its
task, the third respondent was guided by the provisions of clause 23
of the Main Agreement.
The first thing to be considered is the
recommendations of the Council. It was not pointed out to the Court
where such recommendations
occur in the record of the proceedings
sought to be reviewed. It is the duty of the applicant to place
before this Court a record
of the proceedings sought to be reviewed
and set aside. For the purposes of this judgment, I can only assume
that the recommendation
of the Council was not to grant exemption
since the third respondent was considering an appeal against its
refusal to exempt. The
second thing is to consider the submissions
made by employers or employees. It is not the applicant’s
complaint that any
of its submissions were not considered.
[21]
The record reveals that the appeal was considered
by the third respondent at its meeting held on 16 February 2016. The
minutes and
the verbatim transcript of the meeting were placed before
Court. The third thing is to take into account the set criteria. In
its
founding papers the applicant did not set out criteria to be
taken into account nor did it allege that a specific criterion was
not taken into account. In its supplementary affidavit, the applicant
alleged that the fourth respondent did not present any financial
grounds. The applicant does not allege that presenting financial
grounds is one or any of the set criteria. However, what was placed
before Court was an application for exemption questionnaire, which
was apparently completed in July 2015. Clause 3.13 of the
questionnaire
deals with financial motivation. Such motivation was
made supported by annexures. With that information at hand, it is
unclear
what the applicant means by stating that there were no
financial grounds presented. If anything, this allegation of lack of
financial
grounds is not properly supported by anything before me.
[22]
The applicant makes a bald allegation that the
conclusion is not logically connected with the overall assessment and
impact of the
evidence. I am saying the allegation is bald because I
have not been directed to any evidence placed before the third
respondent
which was impacted one way or another. All I was referred
to was the contents of the transcript where certain members of the
third
respondent expressed views on the subject matter under
discussion. There is no case made out to support this allegation.
[23]
Further, the
applicant relies on the ground as developed in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[12]
.
In my view, since this is not an administrative review, the test does
not apply. Section 158 (1) (g), being the section upon which
this
application is pegged allows a review on grounds permissible in law.
The principle of legality, though a permissible ground
of review,
does not find application in this matter. It has not been alleged
that the third respondent acted in any unlawful manner.
Having
considered the evidence and or material placed before the third
respondent, I am unable to observe any lack of connection
between the
material and the reasoning. Even if the
Sidumo
test is to be applied, the decision of the third respondent is not
one that a reasonable decision maker cannot arrive at.
[24]
Accordingly, I am unable to fault the decision of
the third respondent. The review application is bound to fail. None
of the grounds
punted for have merit. For all the above reasons, the
application is dismissed.
[25]
In the results I make the following order:
Order
1.
The application
for review is hereby dismissed.
2.
Each party to
pay its own costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
.
Appearances
For the Applicant: Mr T Ntaka of
Phungo Inc, Randburg.
For
the 4
th
Respondent: Ms B Mokoetle, Employer’s
Organisation Official.
[1]
(1) The Labour Court may – (g) subject to section 145, review
the performance or purported performance of any function
provided
for
in this Act on any
grounds as are permissible in law. [My own underlining and
emphasis].
[2]
66 of 1995, as amended.
[3]
A copy of the relevant clause was not attached to the papers nor was
it quoted in the founding papers. Upon independent research,
a copy
sourced from the internet provides thus:
23 EXEMPTIONS
1
General
(a) Any person bound by this
Agreement may apply for exemption.
(b) The authority of the Council is
to consider applications for exemptions and grant exemptions.
(c)…
(d)…
(e) The provisions of the National
Exemption Policy as per Annexure K, as approved by the Council
shall
apply when considering exemption and appeals.
2.
Fundamental principles for
considerations
(a)…
3.
Urgent applications
(a)…
4.
Process
(a)…
5
Appeals
(a) An independent body, referred to
as the Independent Exemptions Appeal Board (the Board), shall be
appointed and shall consider
any appeal against an exemption granted
or refused by the Council, or a withdrawal of an exemption in
respect of parties and
non-parties.
(b) The Council’s Secretary
shall on receipt of an appeal against a decision of the Council,
submit it to the Independent Exemptions Appeal Board for
consideration and finalisation.
(c) In considering an appeal the
Board
shall consider the recommendations of the Council, any
further submissions by the employer or employees and shall take into
account
the criteria set out above and also any other
representations received in relation to the application.
(d)…
[4]
1903 TS 111.
[5]
2009 (5) SA 485
(C) at para 10. Own emphasis.
[6]
[2000] ZALC 53
(26 June 200) at para 5.
[7]
[2002] 8 BLLR 766 (LC).
[8]
PR 150/14 delivered on 30 January 2018
[9]
See NUCW v Oranje Mynbou en Vervoer Maatskappy Bpk [2000] 2 BLLR 196
(LC)
[10]
(2016) 37 (ILJ) 1839 (LAC).
[11]
Ekurhuleni Metropolitan Municipality v South African Municipality
Workers Union (2015) 36 ILJ 624 (LAC).
[12]
(2007) 28 ILJ 2405 (CC).