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[2018] ZALCJHB 427
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Sibanye Gold Limited t/a Sibanye Still Water v Association of Mineworkers and Construction Union and Another (J4552/18) [2018] ZALCJHB 427; [2019] 6 BLLR 578 (LC) (21 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 4552/18
In
the matter between:
SIBANYE
GOLD LIMITED t/a
SIBANYE
STILL
WATER Applicant
and
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION First
Respondent
MEMBERS
OF THE FIRST RESPONDENT EMPLOYED
BY
THE
APPLICANT Second
Respondent
Heard:
18 December 2018
Delivered:
21 December 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
This urgent application represents the sixth round in an on-going
battle between the parties before this Court, since the first
respondent (AMCU) and its members commenced protected industrial
action at the applicant on 21 November 2018.
[2]
Immediately upon the commencement of the strike, the applicant
approached this Court on 22 November 2018 under case
number
J4217/18 and obtained a
rule nisi
interdicting the respondents
and NUM from
inter alia
, inciting/engaging in any unlawful
conduct, violence and intimidation. Upon the issuing of picketing
rules by the CCMA, the applicant
again approached this Court on an
urgent basis under case number J4390/18 to vary the picketing rules
after alleged breaches. On
12 December 2018, the applicant
yet again approached this Court on an urgent basis under case number
J4518/18 for an
order calling upon AMCU and its members to appear
before the Court to show cause why they should not be found to be in
contempt
of court for failing to comply with its orders under case
numbers J4217/18 and J4390/18.
[3]
AMCU for good measure, also
brought their own application under section 69(12) of the Labour
Relations Act (LRA)
[1]
under case number J4522/18 to vary the picketing rules, which matter
has since by agreement been removed from the roll. A further
application followed on 28 November 2018 when AMCU sought
an order that the applicant comply with its common law duty
to
provide a safe working environment to all the employees at the
applicant’s workplace.
[4]
With the current urgent application, the applicant seeks a
rule
nisi,
for an order declaring the continuing strike that commenced
on 21 November 2018 to be unprotected as contemplated in
sections
65(1)(a) and 65(3)(i) of the LRA with effect from
13 December 2018; interdicting and restraining AMCU and its
members
from participating in and promoting the strike; and
interdicting and restraining AMCU from calling its members out or
inviting
them to participate in the strike or conduct in furtherance
of the strike. The application is as expected, vehemently opposed.
Brief
history:
[5]
The applicant operates a number of gold mines which are divided into
three separate business units,
viz
, Driefontein and Kloof in
Gauteng, and Beatrix in the Free State. These individual mines
consists of various shafts and plants.
The applicant also has various
divisions which constitutes its workplace.
[6]
NUM, Solidarity, UASA and AMCU are all recognised for collective
bargaining purposes by the applicant. AMCU has a majority
representation at Driefontein mine. It however disputed that NUM has
majority representation at Kloof, and from the answering affidavit,
it does not appear that it disputes that NUM also has majority
representation at Beatrix. It is common cause however that there
is
intense rivalry between AMCU and NUM, which is exacerbated by the
close proximity of the Driefontein and Kloof mines.
[7]
AMCU alleges that its members have been subjected to violence by
members of NUM, that the applicant has failed to prevent such
attacks
and had instead displayed a propensity to favour NUM by seeking to
entice or pressurise its members to change allegiances,
thus
worsening the inter-union rivalry and tensions.
[8]
Negotiations in regards to wages, terms and conditions of employment
for the period 1 July 2018 to 30 June 2021
between the recognised unions, the applicant and other companies in
the business of gold mining commenced on 11 July 2018
at
the Mines Council of South Africa (previously known as Chamber of
Mines). A collective agreement was concluded on 14 November 2018
between the Council on behalf of the applicant and other companies,
and NUM, UASA and Solidarity. AMCU was however not party to
the
collective agreement, and despite further negotiations with it, an
agreement remains elusive.
[9]
Following a strike notice issued on 19 November 2018 by
AMCU, industrial action commenced on 21 November 2018.
It
is common cause that as at 14 November 2018 when the
collective agreement was concluded, NUM, UASA and Solidarity
acting
together, did not have as their members, a majority of the employees
employed at the workplace. Collectively, they enjoyed
48% (out of
30245 employees) representation at the workplace.
[10]
The applicant’s contention is that between 22 November 2018
and 13 December 2018, the membership
figures have since
changed due to normal attrition and movement of employees between the
unions during that period. It contends
that as at 13 December 2018,
NUM, UASA and Solidarity acting jointly now have 51.2% of the
membership. The figures as
obtained from the applicant’s
‘Symplexity HR System’ are to be gleaned from a spread
sheet compiled by the applicant’s
Human Resources
Superintendent: HR Management Information Systems, Mr. Wayne Brits.
[11]
According to the figures, there was a total of 1591 movements of
employee membership into and out of the recognised unions
and
non-unionised category, showing a losses of 134 by AMCU and 802 in
the non-trade union category; gains of 602 by NUM, 119 by
Solidarity,
and 215 by UASA. These figures took into account 86 employees who
left the applicant’s employ, and the recruitment
of 25 new ones
during the period. To confirm these figures, the applicant then
engaged the services of Sekela Xabiso Inc to verify
trade union
membership movements during 23 November 2018 and
13 December 2018.
[12]
On 13 December 2018, NUM, UASA, Solidarity and the
applicant concluded an agreement to amend the Main Wage Agreement
(Extension Agreement), and thus by virtue of the provisions of
section 23(1)(d) of the LRA, extending that agreement to all
employees
employed by the employers, whether or not they are members
of the Unions, who are employed in the category 4-8 miners, artisans
and official recognition units in the workplace of each
representative employer.
[13]
On the same date that the extension agreement was concluded, the
Council addressed a letter to AMCU advising it of that agreement,
and
that its effect was to extent the Wage Agreement to its members
by virtue of the provisions of section 23(1)(d) of the
LRA. AMCU was
further advised that the strike action embarked upon by its members
was unprotected, and that it was required to
cease the strike, and
that its members were to report for duty by Saturday
15 December 2018, failing which they may be
dismissed. The
applicant on the same date also addressed a letter to AMCU referring
to the letter of Council, and also informed
it of the extension of
the wage agreement and its consequences. AMCU’s response in its
letter of 14 December 2018
was to deny that its strike was
unprotected.
Evaluation:
[14]
The Notice of Motion was brought before the Court on 18 December 2018
and the matter was set down for a hearing on
the same day. It appears
that the application was served on AMCU on or about 15 or
16 December 2018, it being a long
weekend. AMCU had
promptly filed its notice of opposition on 16 December 2018,
and an extensive answering affidavit was
filed and served on
18 December 2018. The applicant did not file a replying
affidavit and elected to proceed on its founding
papers.
[15]
The urgency of the matter cannot for all intents and purposes be
placed in dispute. The strike action had been on-going since
21 November 2018 with devastating consequences for both
parties, and the fact that this is the sixth application before
this
Court related to that strike can only underscore that urgency.
[16]
To the extent that the
applicant seeks a
rule nisi,
the requirements to be met
are known. These are that the applicant must establish a
prima
facie right;
a reasonable
apprehension of irreparable harm if the
interim
interdict is not granted; that it has no alternative satisfactory
remedy available to it; and further that the balance of convenience
is in favour of granting the
interim
relief
[2]
.
[17]
It has been
repeatedly stated that the Court would be prepared to grant the
interdict upon a lesser degree of proof than that required
for a
final interdict
[3]
.
The applicant is thus only required to establish a
prima
facie
right,
albeit
open
to doubt
[4]
.
[18]
Whether that
prima
facie
right, even if open
to doubt has been established requires a determination of whether the
provisions or requirements of section
23(1)(d) of the LRA
[5]
have been met in this case, for the purposes of declaring that the
strike action that commenced as protected, has since become
unprotected, for the purposes of the application of sections 65(1)(a)
and 65(3) (a) (i) of the LRA.
[19]
The constitutional
validity of the principle of extensions in terms of section 23(1)(d)
of the LRA having been upheld in
AMCU
and others v Chamber of Mines of South Africa and others
[6]
,
Mr Kennedy SC for the respondents was correct in pointing out that
because of the impact that these provisions have on the
concomitant constitutional right to strike
[7]
,
it is of importance that the Court is satisfied that indeed the
requirements set out in that section are met. In essence, the
extension of a collective agreement in terms of section 23(1)(d) LRA
cannot escape judicial scrutiny.
[20]
From the operative words in the provisions section 23(1)(d) of
the LRA, the implications in this case are that NUM, UASA and
Solidarity
must have as their members, the
majority of
employees
employed by the applicant in the
workplace.
The most natural interpretation of
section 23(1)(d) is that, it is the union membership figures at the
time the agreement is extended
which matters.
It cannot
therefore be correct for Mr Masher on behalf of the applicant, to
argue that the figures as disputed by AMCU are not
relevant for the
purposes of granting
interim
relief. Those figures are the
very basis upon which AMCU’s constitutional right to strike is
sought to be curtailed by virtue
of the extension of the wage
agreement in accordance with the provisions of section 23(1)(d) of
the LRA.
[21]
What then are the facts that were placed
before the Court to justify the extension of the wage agreement? From
the onset, it needs
to be stated that the figures relied upon by the
applicant in claiming majority on behalf of the other three unions
were vigorously
contested by AMCU. Whilst the figures up to
22 November 2018 were common cause, the figures between
that date and 13 December 2018
when the agreement was
extended are placed in dispute.
[22]
It has already been stated as to how the
applicant arrived at its trade union membership figures between
22 November 2018
and 13 December 2018. The
figures come from the applicant’s own system and as further
verified by Sekela Xabiso
Inc, a professional services firm. In my
view that are inherent difficulties which the applicant must surmount
in regards to the
manner and approach with which these figures were
arrived at.
[23]
The obvious difficulty is that it is not
stated as to who Sekela Xabiso Inc is. Their credentials are unknown
even if it cannot
be doubted that they are a reputable
professional services firm as averred by its Director, Ms Zoliswa
Ntombela in her confirmatory
affidavit. Be that as it may, it is not
known how they came to be appointed, and what their expertise was in
matters that they
were required to investigate and verify.
[24]
Several concerns were raised in regards to
their findings and methodology in verifying the figures that
dramatically changed over
the period in question. These include that;
(a)
The affected unions were not engaged when
the verification exercise was done. That on its own raises questions
as to the legitimacy,
transparency or validity of that process. The
applicant’s contention that the engagement was not possible or
practical due
to the nature of the on-going strike, or that it was
not aware that AMCU would dispute the figures, can hardly be a
reasonable
excuse given the far-reaching implications of that
exercise, especially on AMCU’s constitutional right to continue
with the
strike. The adherence to a fundamental right to be heard is
or was clearly paramount in such an exercise, and AMCU clearly
deserved
to be engaged in the light of its own interests that were at
stake.
(b)
Two fundamental flaws are immediately
discernible form the report. The first is highlighted under paragraph
1.5.1 Engagement Scope
,
of the report, where it is recorded that;
“
The
engagement covered the verification of union application forms
processed from 23 November 2018 until
13 December 2018
(11h30AM).
In
relation to the representation before 23 November 2018, SKX
has relied on the information provided by the Company and
no
verification was done on those numbers
.
The last monthly payroll was on 23 November 2018 and was
based on information up to 22 November 2018”
(c)
The second can be found under paragraph
1
.5.3
Scope Exclusions/Limitations
of
the report, where it is recorded
inter
alia
that;
“
The
following do not form part of this engagement;
…
Verification
of application forms received prior to November 2018
[25]
Other than the above which point to
fundamental lapses, AMCU in its answering affidavit raises various
factors which creates doubt
as to the veracity of the figures relied
upon by the applicant. The applicant having set this application down
on an urgent basis
and electing not to file a replying affidavit, it
took a risk as correctly pointed out on behalf of the respondents,
and it is
trite that
interim
relief cannot simply be granted for the purposes of allowing a party
to supplement its papers at a later stage. It is either the
requirements for the relief sought are met or not, and fundamental
being a
prima facie
right to that relief. If uncontested averments in the answering
affidavit creates doubt,
interim
relief ought to be declined.
[26]
In the answering affidavit, AMCU contends
that the applicant’s figures are wrong, inflated, skewed and
unreliable, and that
the claim that the three other unions now
represents a majority by the slightest margin is flawed for the
following reasons;
i.
A total of 149 AMCU members, who were
previously NUM members employed in the applicant’s Protection
Services were wrongly
accredited as NUM members despite having
resigned from the latter and having signed up with AMCU between 2017
and 2018.
ii.
A total of 442 of employees at Driefontein
and Kloof mines have moved from NUM and UASA to AMCU, and despite
various engagements
with the applicant and the handing over of
membership forms, their processing had not been done.
iii.
A total 167 employees at Beatrix joined
AMCU during the course of the current strike after having resigned
from NUM and, and there
is no evidence that this was taken into
account
iv.
A total of 100 AMCU members at Beatrix mine
are not reflected in management’s records, and 70 of them are
wrongly reflected
as members of NUM and other unions.
v.
Members of AMCU performing essential
services at the three mines, and who are not permitted to join the
strike, have been unlawfully
induced by management to resign from it
and join NUM. This was done through ‘parades’ at various
shafts between 11
and 12 December 2018, where they were
told to join NUM if they wished to continue working or be paid, or
avoid retrenchments
in the new year. Various instances of inducements
and threats made by management towards AMCU members in this regards
were cited
in the papers.
vi.
AMCU further contends that even if its
members are said to have recently resigned from it and joined other
unions, in accordance
with its constitution, those members could not
immediately effect the resignation as they were required to give four
weeks’
written notice. It was contended that no such notices
were received, and that even if there were such resignations, no
proof had
been provided in that regard. To that end, AMCU disputed
that it had lost 473 members during the period in question as alleged
by the applicant, and that the other unions could have achieved
majority representation during that period.
[27]
Flowing from the above, the following conclusions can be readily
made;
27.1 It follows that serious doubt has
been cast by the answering affidavit in regards to clearly
unsubstantiated versions in the
founding affidavit in regards to how
the figures were arrived at. The Sekela Xabiso Inc verification
report may be helpful to the
applicant, but in the light of the
fundamental flaws pointed out in this judgment, inclusive of its
apparent lack of transparency,
it is of little consequence to the
Court in the determination of this application.
27.2 The applicant has not provided
source documents to back up the verification process and its
conclusions, whilst AMCU has tendered
an inspection of the documents
it relied upon. It is accepted that some of the documents relied upon
by AMCU, especially in regards
to membership application forms may
fall outside of the period in question as correctly pointed out on
behalf of the applicant.
Whether the figure of 149 AMCU in the
applicant’s Protection Services was relevant to the issues or
not as contended on behalf
of the applicant does not in any event
detract from the fundamental flaws in the verification process.
However, it cannot on the
whole, be concluded that the doubts created
or disputed versions averred in the answering papers are lacking in
merit. This is
so particularly in the light of the spectacular manner
with which the verification process breached the fundamental
principle of
audi alteram partem
, or at worst solely relied on
management’s unverified figures as pointed out in the Sekela
Xabiso Inc report.
27.3 There can be no merit in the
applicant’s contentions that no serious doubts have been
created in regards to the figures
as alleged in the answering papers.
The fact that AMCU had not also independently verified its figures
does not make the applicant’s
figures any better or correct.
27.4 If the AMCU’s figures are
backed up by source documents which were tendered and readily
available, something which the
applicant had failed to do despite
approaching the Court on an urgent basis, I fail to appreciate why
this Court should ignore
the fact that those figures, even if
unverified, indeed raises serious doubts for the purposes of
determining whether the wage
agreement was validly extended to AMCU
and its members for the purposes of declaring their strike
unprotected.
[28]
Flowing from the accepted test
for a
prima facie
right as restated in
Simon
N.O v Air Operations of Europe AB and Others
[8]
, the Court having had regard to the facts averred by the applicant,
the common cause facts and those facts that remain undisputed
as set
out in the answering papers, serious doubts have been thrown upon the
applicant’s case. I am accordingly not satisfied
that the
applicant has established a
prima
facie
right to the relief
it seeks, or let alone a clear right to the enforcement of the
provisions of sections 23(1)(d); 65(1)(a) and/or
65(3)(a)(i) of the
LRA. There is clearly no basis, let alone even on a
prima
facie
one, for any
conclusion to be reached that the three other unions could have
between the period 22 November 2018 and
13 December 2018
dramatically increased their membership to enjoy majority
representation for the purposes of extending
the wage agreement.
[29]
The Court would however be remiss to ignore the irreparable harm the
on-going strike has caused. The consequences of the extension
of the
wage agreement however, and its impact on AMCU’s guaranteed
constitutional right to strike are equally factors not
to be ignored.
To this end, it is my view that in the light of the orders to be made
as below, it is within the powers of this
Court to make any further
orders that it deems prudent under the provisions of section 158 of
the LRA, that will give effect to
the primary purposes of the LRA,
paramount being the effective resolution of labour disputes.
[30]
I have further had regard to the requirements of law and fairness in
regards to the issue of costs. Even though I am mindful
of the fact
that the applicant may have had cause to approach the Court on an
urgent basis, the basis upon which it did so was
not well thought
through, causing the respondents the inconvenience of having to put
up opposing papers over a long weekend. In
my view, even though there
might be an on-going relationship between the parties, fairness
dictates that the applicant should be
burdened with the costs of this
application.
[31]
Accordingly, the following order is made:
1. The applicant’s application
is dismissed.
2. The Registrar of this Court is
ordered to forward a copy of this judgment to the Office of the
National Director of the Commission
for Conciliation, Mediation and
Arbitration (The CCMA), for it (National Director), to facilitate and
set in motion within a period
of three (3) days upon receipt of a
copy of this judgment, a union membership verification process at the
applicant’s workplace.
3. The National Director of the CCMA
is ordered to file a report on the progress made in regards to order
(2) as above with the
Registrar of this Court by no later than
7January 2019.
4. The applicant is ordered to pay to
the first respondent, the costs of this application.
____________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant: Dion Masher of Edward Nathan Sonnenberg INC
For
the Respondent: P Kennedy SC
Instructed
by: Larry Dave INC
[1]
Act 66 of 1995 (as amended)
[2]
Setlogelo
v Setlogelo
1914
AD 221
[3]
See Van
Loggerenberg, DE,
Erasmus-
Superior Court Practice
(Service 41, Juta & Co. Ltd, 2013) at E8-10).
[4]
Webster
v Mitchell
1948
(1) SA 1186
(W)
at
1189, where it was held that;
‘…
the
right to be set up by an applicant for a temporary interdict need
not be shown by a balance of probabilities. If it
is “
prima
facie
established though open to some
doubt” that is enough…
The proper manner of approach I
consider is to take the facts set out by the applicant, together
with any facts set out by the
respondent which the applicant cannot
dispute, and to consider whether, having regard to the inherent
probabilities, the applicant
could on those facts obtain final
relief at the trial. The facts set up in contradiction by the
respondent should then
be considered. If serious doubt is
thrown upon the case of the applicant he could not succeed in
obtaining temporary relief,
for his right,
prima facie
established, may only be open to “some doubt”. But if
there is mere contradiction, or unconvincing explanation, the
matter
should be left to trial and the right be protected in the meanwhile,
subject of course to the respective prejudice in
the grant or
refusal of interim relief.’
[5]
23.
Legal effect of collective agreement
(1)
A
collective
agreement
binds-
(a)
…
(b)
…
(c)
…
(d)
employees
who
are not members of the registered
trade
union
or
trade
unions
party to the agreement if –
(i)
the employees are identified in the
agreement;
(ii)
the agreement expressly binds the
employees; and
(iii)
that
trade
union
or those
trade
unions
have as their members the
majority of
employees
employed by the employer in the
workplace
.
[6]
2017 (3) SA 242 (CC)
[7]
Section
23(2)(c) of the Constitution of the Republic of South Africa (Act
108 of 1996, as amended)
[8]
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at .. where it was held that;
“
The accepted test for a prima
facie right in the context of an interim interdict is to take the
facts averred by the applicant,
together with such facts set out by
the respondent that are not or cannot be disputed and to consider
whether, having regard
to the inherent probabilities, the applicant
should on those facts obtain final relief at the trial. The facts
set up in contradiction
by the respondent should then be considered
and, if serious doubt is thrown upon the case of the applicant, he
cannot succeed”