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[2018] ZALCJHB 380
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Solidarity v South African Police Service and Others (J 3750/18) [2018] ZALCJHB 380; [2019] 2 BLLR 187 (LC); (2019) 40 ILJ 448 (LC) (15 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE
NO: J 3750/18
In the matter between:
SOLIDARITY
Applicant
and
THE SOUTH AFRICAN POLICE
SERVICE
First Respondent
THE SOUTH AFRICAN POLICE
UNION
Second Respondent
POLICE AND PRISONS CIVIL RIGHTS
UNION
Third Respondent
Heard: 14 November 2018
Judgment
delivered: 15 November 2018
JUDGMENT
VAN
NIEKERK J
[1] The applicant is a registered trade union. In these proceedings,
brought on an urgent basis, it seeks a final order declaring
that it
is entitled to represent its member, Col B Janse van Vuuren, in a
grievance hearing that she has initiated, and directing
the first
respondent to permit an official of the applicant to represent Col
Janse van Vuuren in the hearing.
[2] The material facts are not in dispute. On 19 February 2018
Warrant Officer Mohlahlo, then a sergeant and subordinate of Col.
Janse van Vuuren, lodged a grievance against Janse van Vuuren,
accusing her of racism. It is common cause that on 26 March 2018,
W/O
Mohlahlo submitted an affidavit to the investigating officer of a
disciplinary investigation,
inter alia
stating that he had
opened a case of “
discrimination and racism against Colonel
Van Vuuren”
and that his complaint had been sent to the
SAPS National Commissioner, the Minister of Police, the Portfolio
Committee on Police
and the Human Rights Commission. W/O Mohlahlo’s
grievance was the seventh grievance or complaint regarding alleged
“
discrimination and racism”
lodged by him against
Col. Janse van Vuuren since 2015. Col Janse van Vuuren then lodged an
official complaint against W/O Mohlahlo.
The applicant came on
record on 22 May 2018 and wrote to the Divisional Commissioner of
Operational Response Services, Lt
Genl. E Mavela, requesting that the
matter be properly investigated and that the necessary steps be
instituted by the SAPS, as
required by s 60(2) of the Employment
Equity Act, Act 55 of 1998 (“the EEA”). On or about 5
June 2018, a senior officer
from Durban, Brig Gopaul, was appointed
to investigate both W/O Mohlahlo’s grievance and Col Janse van
Vuuren’s complaint.
Brig Gopaul released a report of his
findings and drew the following conclusions:
6.1 The allegations of Warrant
officer M.P Mohlahlo had been previously investigated and were found
to have had no basis and was
unfounded.
6.2 The use of the grievance
procedure by warrant officer Mohahlo irrespective of the number of
complaints and provided that it
did not repeat the previous grievance
is the only recognised method to raise concerns formally is and
should not be seen as harassment
if it is used correctly.
6.3 Warrant officer M. P.
Mohlahlo’s cry for assistance to different officers in
institutions outside of the grievance procedure
was misconduct in
itself.
6.4 Warrant officer M.P
Mohlahlo’s repeated complaints simultaneously to various
institutions outside of the grievance procedure
was driven by an
intention to achieve the impact of placing Colonel B. Janse Van
Vuuren in a position where she looked tainted
and branded as a
racist.
6.6 Warrant officer M.P.
Mohlahlo’s allegation that Colonel CB Janse van Vuuren was
racists was to take the attention away
from him in the fraudulent
submission of his subsistence and travel claim.
6.7 In view of the above it is a
finding that all of the complaints of warrant officer Mohlahlo
against Colonel C.B. Janse van Vuuren
are only the member’s
perceptions and not facts and are therefore unfounded.
6.8 In view of the above
findings, it can be concluded that W/O Mohlahlo’s repeated
complaints to various institutions outside
of the grievance procedure
was not only false and unfounded but harassment and defaming towards
Col B Janse van Vuuren and constitutes
to various misconduct under
regulation 5(3)(a) and (g).”
[3] In
paragraph 7 of the report, under the heading “
RECOMMENDATIONS”
the brigadier concluded as follows:
It
is recommended that:
7.1
Despite the findings above which reflects false accusation and
defamation against a senior officer of the SAPS, it will not
serve
any good or progress to the SAPS, Warrant Officer M.P Mohlahlo or Col
B Janse van Vuuren to be stuck on a journey of emotions
of perceived
racism or harassment in any departmental hearing and as such it is
recommended that the complaints of Warrant officer
M.P Mohlahlo be
dismissed as unfounded.
7.2 The conduct of Warrant
officer M.P Mohlahlo although mischievous be regarded as non-serious
and be dealt with through remedial
steps.
7.3 Warrant officer Mohlahlo be
transferred out of the SCM environment of Division: ORS pending his
transfer to PSS or any other
environment as relationship between the
member and the SCM commander Col B. Janse van Vuuren has completely
broken down.
[4]
After consideration of Brig Goupaul’s recommendations, Col
Janse van Vuuren, with the assistance of Solidarity, lodged
a formal
grievance, seeking to review the recommendations. Col Janse van
Vuuren requested that she be represented by an official
of the
applicant in the grievance hearing. The SAPS refused that request, on
the basis that the definition of ‘representative’
in the
grievance procedure is limited to the following:
‘
Representative‘means
a co-employee or an office-bearer, or shop-steward or official of an
employee organization or trade union
that is admitted to the SSBC,
but excludes a legal practitioner, unless the legal practitioner is
employed by the trade union.
[5] It
is common cause that the applicant is not admitted to the SSBC, and
that its officials accordingly have no right in terms
of the
procedure to represent its members at grievance hearings.
[6] The applicant seeks final relief, and must accordingly establish
a clear right to the relief sought, an injury actually committed
or
reasonably apprehended, and the absence of similar protection by
other ordinary remedy.
[7] The relevant statutory provisions are to be found in Part A of
Chapter III of the LRA. That section regulates the acquisition
of
organisational rights. Certain rights (the right of access in s 12,
the right to check-off in s 13 and leave for trade union
activities
in s 15) may be claimed by representative unions, defined to mean
unions that are ‘sufficiently representative’
of the
employees employed by an employer in a workplace. Other
organisational rights (the right to trade union representatives
conferred by s 14 and the right to disclosure of information
conferred by s 16) may be claimed by unions that meet a higher
threshold,
unions that have as members the majority of employees
employed by an employer in a workplace.
[8] Section 21 regulates the exercise of organisational rights. In
broad terms, a union meeting the required threshold may seek
to agree
with the employer that the rights sought should be extended; in the
absence of a collective agreement conferring organisational
rights,
these may be acquired through arbitration.
[9] In
National Union of Metalworkers of SA v Bader Bop (Pty) Ltd
(2003) 24
ILJ
305 (CC), the Constitutional Court had to decide
whether s 20 permitted minority unions to conclude collective
agreements affording
them organisational rights, and in particular,
whether a minority union and its members are entitled to take lawful
strike action
to persuade an employer to recognise its shop stewards.
The court held there is nothing in s 20 to preclude an employer from
entering
into an agreement with an unrepresentative union to confer
organisational rights, provided that the agreement does not prevent
the exercise of statutory organisational rights by a representative
union.
[10] In the course of its judgment, the court reflected more broadly
on the nature and extent of the right to freedom of association.
In
the course of specific reference to the two key ILO conventions
(Conventions 87 and 98) the court said the following, at paragraph
34
of the judgment:
Of importance to this case in
the ILO jurisprudence described is firstly the principle that freedom
of association is ordinarily
interpreted to afford unions the right
to recruit members and to represent those members at least in
individual workplace grievances;
and secondly, the principle that
unions should have the right to strike to enforce collective
bargaining. The first principle is
closely related to the principle
of freedom of association entrenched in s 18 of our Constitution,
which is given specific content
in the right to form and join the
trade union entrenched in s 23 (2) (a), and the right of trade unions
to organize in s 23 (4)
(b).
These rights will be impaired where
workers are not permitted to have that union represent them in
workplace disciplinary and grievance
matters that are required to be
represented by a rival union that they have chosen not to join.
(Own
emphasis).
[11] In the more recent case of
Police and Prisons Civil Rights
Union v South African Correctional Services Workers’ Union and
others
[2018] 11 BLLR 1035
(CC) the Constitutional Court had to
determine whether s 18 of the LRA has the effect of prohibiting a
minority union from engaging
in collective bargaining with an
employer in circumstances where there is a collective agreement
between the employer and a majority
union that determines the
threshold of representativeness. (Section 18 provides that an
employer and a majority union may conclude
a collective agreement
establishing a threshold of representativeness required in respect of
one or more of the organisational
rights referred to in sections 12,
13 and 15.) The majority of the court answered the question in the
negative, and held that s
18 does not preclude a minority union from
concluding a collective agreement that confers organisational rights
with an employer
in circumstances where that employer is party to a s
18 agreement with a majority union.
[12] At paragraph [102] of the judgment, Jafta J said the following:
When properly construed Chapter
III of the LRA reveals that a minority union may access
organisational rights in sections 12, 13
and 15 in a number of ways.
First, it may acquire those rights if it meets the threshold set in
the collective agreement between
the majority union and the employer.
In that event, a minority union does not have to bargain before
exercising the rights in question.
Second, such union may bargain and
conclude a collective agreement with an employer, in terms of which
it would be permitted to
exercise the relevant rights. Third, a
minority union may refer the question of whether it should exercise
this right to arbitration
in terms of section 21 (8C) of the LRA. If
the union meets the conditions stipulated in that section, the
arbitrator may grant
it organizational rights in the relevant
provisions.
[13] The nature of the right in issue in these proceedings requires
clarification and definition, if only because of the different
thresholds that apply to different organisational rights. Although
the founding affidavit is not entirely unambiguous, the notice
of
motion makes clear that what the applicant seeks is for one of its
officials to represent Col Janse van Vuuren at the grievance
hearing.
In other words, this dispute does not concern the application of s14
of the LRA, which regulates the appointment and role
of trade union
representatives (usually referred to as shop stewards). The applicant
does not seek to have one of its shop stewards
(assuming there to be
any), represent its member. By seeking to have one of its officials
represent Col Janse van Vuuren, the applicable
right would appear to
be that conferred by s 12, which amongst other things, entitles trade
union officials and office bearers
to enter an employer’s
premises to serve the members’ interests. This would extend to
representation of members at
disciplinary and grievance hearings.
[14]
However, as I understood Mr Goosen, who appeared for the applicant,
while the applicant appreciates that the nature of the
right sought
to be enforced finds reflection in s 12, the applicant does not rely
on s 12
per se
to secure the relief that it seeks. The applicant concedes that it
does not meet the threshold established by the existing s 18
collective agreement (which it in any event contends is not a valid
collective agreement for the purposes of that section since
the union
parties do not comprise a majority), nor does it seek to ground its
right in s 12 itself (it does not contend that it
is a
‘representative’ union). The applicant further
acknowledges that it is not the beneficiary of any arbitration
award
issued in terms of s 21. Mr Goosen, who represented the applicant,
sought to establish a fourth means by which a minority
union may
acquire organisational rights and in doing so, relied particularly on
Bader Bop
to contend that a union’s right to represent a member at a
disciplinary or grievance hearing was a discrete, substantive
right
that was not the subject of any of the options identified in the
POPCRU
judgment.
As I understood his submission, the right of representation in this
sense is an element of the right to freedom of association,
derived
ultimately from the ILO Convention 187, embodied in s 23 of the
Constitution and acknowledged in specific terms by the
Constitutional
Court in
Bader Bop
.
[15] There are a number of difficulties with this argument. The first
is related to context. The
Bader Bop
and
POPCRU
judgments were concerned with the rights of minority unions to
acquire organisational rights by means of collective bargaining
(and
in the case of
Bader Bop
, to the point of industrial action),
where the employer was party to a s 18 collective agreement with a
majority union. The
ratio
of both cases extends no further
than an affirmation of the right of a minority union to seek to
negotiate the terms of a collective
agreement conferring
organisational rights, and to strike in support of such a demand.
Neither case establishes as an unequivocal
principle that an official
of any trade union, regardless of its level of representativity, is
entitled to access to a workplace
for the purpose of representing a
member in a grievance or disciplinary hearing.
[16] The second objection is one that goes to the source of the right
contended for by the applicant. Generally speaking, ILO conventions
are binding only on those member states that have ratified them.
Member states are required to ensure that the terms of a ratified
convention are reflected in the national law and practice. South
Africa has ratified Convention 187, the Freedom of Association
and
Protection of the Right to Organise Convention. At its core,
ILO Convention 187 provides that workers and employers,
without
distinction, have the right to establish and, subject only to the
rules of the organisation concerned, to join organisations
of their
own choosing and participate in their activities.
[17] Section 18 of the Constitution affords everyone the right of
freedom of association. In the labour context, this right is
affirmed
in s 23 (2), which affords every worker the right to form and join a
trade union, to participate in its activities and
programmes, and to
strike. Section 23 (4) confers on every trade union and employers’
organisation the right to determine
its own administration,
programmes and activities and to organise.
[18] However, the principle of subsidiarity requires that where
legislation is enacted to give effect to the Constitutional right,
reliance must be placed on the provisions of the specific legislation
(see
Baron and others v Claytile (Pty) Ltd & another
2017
(5) SA 329
(CC)). In
Safcor Freight (Pty) Ltd t/a Safcor Panalpina
v SA Freight and Dock Workers
[2012] 12 BLLR 1267
(LAC), Murphy
AJA said the following, at paragraph 18 of the judgment:
In
my view, the Labour Court erred in declaring the award of increased
remuneration inconsistent with section 9 (equality) and section
23
(fair labour practices) of the Constitution. Where legislation has
been enacted to give effect to a constitutional right, a
party may
not bypass that legislation and rely directly on … the
general provisions of constitutional right to fair
labour practices
in section 23 or the equality clause in section 9 of the
Constitution
.’
[19] The LRA gives expression to the constitutional right of freedom
of association. Section 4 of the LRA reads as follows:
‘
4.
Employees' right to freedom of association
(1)
Every employee has the right-
(a)
to participate in forming a trade union or federation of trade
unions; and
(b)
to join a trade union, subject to its constitution.
(2)
Every member of a trade union has the right, subject to the
constitution of that trade union-
(a)
to participate in its lawful activities;
(b)
to participate in the election of any of its office-bearers,
officials or trade union representatives;
(c)
to stand for election and be eligible for appointment as an office
bearer or official and, if elected or appointed, to hold
office; and
(d)
to stand for election and be eligible for appointment as a trade
union representative and, if elected or appointed, to carry
out the
functions of a trade union representative in terms of this Act or any
collective agreement.
(3)
Every member of a trade union that is a member of a federation of
trade unions has the right, subject to the constitution of
that
federation-
(a)
to participate in its lawful activities;
(b)
to participate in the election of any of its office-bearers or
officials; and
(c)
to stand for election and be eligible for appointment as an
office-bearer or official and, if elected or appointed, to hold
office.
[20] The applicant has not sought to locate the clear right on which
it relies in any of the provisions of s 4 directly, nor has
it sought
to challenge the constitutionality of any of the provisions of Part A
of Chapter III of the LRA on the basis that they
unjustifiably limit
the right to freedom of association, to the extent that they deny
minority unions the right to have their officials
represent members
at disciplinary and grievance hearings. Such an attack is
foreshadowed by the extract from the
Bader Bop
judgment
reflected in paragraph X above, in which the view was expressed that
a majoritarian system will not be compatible with
freedom of
association, ‘
as long as minority unions are allowed to
exist, to organize members, to represent members in relation to
individual grievances
and to challenge minority unions from time to
time’
. In
POPCRU
, the Constitutional Court observed:
90. …Any statutory
provision that prevents a trade union from bargaining on behalf of
its members or forbidding it from representing
them in disciplinary
and grievance hearings would limit rights in the Bill of Rights.
Forcing workers who belong to one trade union
to be represented by a
rival union at a disciplinary hearing seriously undermines the right
to freedom of association described
earlier.
[21] In summary, the applicant does not meet the threshold in the s
18 agreement, it is not the beneficiary of any collective agreement
concluded outside of the existing s 18 agreement and has no
arbitration award in its favour in terms of which its officials may
represent members in grievance hearings.
Bader Bop
and
POPCRU
,
read in context, do not confer a substantive right on union officials
to represent union members at grievance hearings. They do
no more
than affirm the right of a minority union to bargain for and strike
in support of a demand for organisational rights notwithstanding
the
existence of a s18 collective agreement with a majority union.
Whether s 4 confers a right on union officials to represent
union
members at grievance hearings notwithstanding the provisions of Part
A of Chapter III of the LRA, and whether the latter
provisions give
full expression to the rights contained in s 18 and s 23 of the
Constitution, were not matters canvassed in these
proceedings.
[22] For the above reasons, in my view, the applicant has failed to
establish the existence of a clear right to the relief that
it seeks.
It is not necessary for me to consider the submissions made by the
applicant in relation to the further requirements
for final relief,
and the application accordingly stands to be dismissed.
[23] Finally, in relation to costs, the court has a broad discretion
in terms of s 162 to make orders for costs according to the
requirements of the law and fairness. In my view, this is one of
those matters where there is a
bona fide
dispute between an
employer on the one hand and a union seeking to further the interests
of its members. The interests of the law
and fairness are best served
by there being no order as to costs.
I make the following order:
1.
The
application is dismissed.
André
van Niekerk
Judge
REPRESENTATION
For the
applicant: Adv. C Goosen, instructed by Serfontein Viljoen &
Swart
For the
respondent: Adv. E Richards, instructed by the state attorney