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[2018] ZALCPE 41
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Auto Industrial Group (Pty) Ltd and Others v CCMA and Others; MIBCO v CCMA and Others (PR3/18;PR50/18) [2018] ZALCPE 41; [2019] 4 BLLR 371 (LC); (2019) 40 ILJ 550 (LC) (1 November 2018)
the
labour court of South Africa, PORT ELIZABETH
reportable
CASE NO: PR 3/18
In
the matter between:
AUTO
INDUSTRIAL GROUP (PTY) LTD
First
Applicant
AUTO
INDUSTRIAL FOUNDRY DIVISION
Second
Applicant
AUTOCAST
SOUTH AFRICA (PTY) LTD
Third
Applicant
AUTOCAST
SOUTH AFRICA (PTY) LTD ALUMINIUM
Fourth
Applicant
BORBET
SA (PTY) LTD
Fifth
Applicant
DANA
SPICER AXLE SOUTH AFRICA (PTY) LTD
Sixth
Applicant
MW
WHEELS SA (PTY) LTD
Seventh
Applicant
SP
METAL FORGINGS BOKSBURG (PTY) LTD
Eighth
Applicant
SP
METAL FORGINGS UITENHAGE (PTY) LTD
Ninth
Applicant
TORRE
AUTOMOTIVE (PTY) LTD
Tenth
Applicant
ZF
LEMFORDER SA (PTY) LTD
Eleventh
Applicant
MALBEN
ENGINEERING CC
Twelfth
Applicant
and
CCMA
First
Respondent
COMMISSIONER
FEIZAL FATAAR,
N.O.
Second
Respondent
NUMSA
Third
Respondent
SOLIDARITY
Fourth
Respondent
UASA
Fifth
Respondent
MEIBC
Sixth
Respondent
MIBCO
Seventh
Respondent
WIDNEY
TRANSPORT COMPONENTS (PTY) LTD
Eighth
Respondent
RAMSAY
ENGINEERING (PTY) LTD
Ninth
Respondent
EURO
METAL FINISHES (PTY) LTD
Tenth
Respondent
AUTO
INDUSTRIAL MACHINING DIVISION
Eleventh
Respondent
ISANDO
FOUNDRY DIVISION
Twelfth
Respondent
HUBCO
FORGINGS DIVISION
Thirteenth
Respondent
and
Case
No. PR 50/18
In
the matter between:
MIBCO
Applicant
and
CCMA
First Respondent
FEIZAL
FATAAR,
N.O
.
Second Respondent
NUMSA
Third Respondent
SOLIDARITY
Fourth Respondent
UASA
Fifth Respondent
MEIBC
Sixth Respondent
SAACSA
Seventh Respondent
AUTO
INDUSTRIAL GROUP (PTY) LTD
Eighth
Respondent
AUTO INDUSTRIAL
FOUNDRY DIVISION
Ninth Respondent
AUTOCAST SA (PTY) LTD
Tenth
Respondent
AUTO CAST SA (PTY) LTD
ALUMINIUM
Eleventh
Respondent
BORBET SA (PTY)
LTD
Twelfth Respondent
DANA SPICER AXLE SOUTH
AFRICA (PTY) LTD
Thirteenth Respondent
MW WHEELS SA (PTY)
LTD
Fourteenth Respondent
SP METAL FORGINGS
BOKSBURG (PTY) L
Fifteenth Respondent
SP METAL FORGINGS
UITENHAGE (PTY) LTD
Sixteenth
Respondent
TORRE AUTOMOTIVE (PTY)
LTD
Seventeenth
Respondent
ZF LEMFORDER SA (PTY)
LTD
Eighteenth Respondent
MALBEN ENGINEERING
CC
Nineteenth Respondent
WIDNEY TRANSPORT
COMPONENTS (PTY) LTD
Twentieth Respondent
RAMSAY ENGINEERING
(PTY) LTD
Twenty-First Respondent
EURO METAL FINISHES
(PTY) LTD
Twenty-Second Respondent
AUTO INDUSTRIAL
MACHINING DIVISION
Twenty-Third
Respondent
ISANDO FOUNDRY
DIVISION
Twenty-Fourth Respondent
HUBCO
FORGINGS DIVISION
Twenty-Fifth Respondent
Date
heard: 17 October 2018
Date
of judgment: November 2018
JUDGMENT
______________________________________________________________________
VAN
NIEKERK J
Introduction
[1]
On 31 July 2017, the second respondent in each of the above
applications (‘the
commissioner’) issued an arbitration
award in a dispute where he was required to determine whether vehicle
component manufacturers
fall within the scope of the Metal and
Engineering Industries Bargaining Council (MEIBC), or the Motor
Industries Bargaining Council
(MIBCO). The result was mixed –
the commissioner decided that the twelve applicants in matter PR3/18
(‘the demarcation
applicants’) fell within the MEIBC’s
scope, where they were registered. Others, cited as the eighth to
thirteenth respondents
in the same matter, were held to be employers
within MIBCO’s scope.
[2]
The arbitration award has generated three review applications. The
first is the application
filed by the demarcation applicants in case
PR 3/18. They contest the finding that they are to remain demarcated
within the MEIBC.
Secondly, there is a review application by MIBCO
(case PR 50/18), with essentially the same objectives as the
application filed
by the demarcation applicants in PR 3/18. The third
is a review application filed by NUMSA, in which it seeks to review
and set
aside that part of the award that concludes that the eighth
to thirteenth respondents in PR 3/18 fall within MIBCO’s scope,
coupled with a conditional cross-review aimed at broadening the basis
on which the demarcation applicants are to be considered
employers
within the scope of the MEIBC. The parties agreed that the matters
should be heard together and a single judgment delivered.
The regulatory
framework and its history
[3]
The current scope of registration of the MEIBC is the ‘
iron,
steel, engineering and metallurgical industries
’. These
industries are defined to mean,
inter alia
, ‘
[t]he
general engineering and manufacturing engineering and metallurgical
industries
’. These industries are defined expressly to
exclude ‘
the motor industry
’.
[4]
The ‘
motor industry
’ is defined to mean:
(aa)
Assembling, erecting, testing, remanufacturing, repairing, adjusting,
overhauling, wiring, upholstering,
spraying, painting and/or
reconditioning carried on in connection with –
(i)
chassis and/or bodies of motor vehicles;
(ii)
internal combustion engines and transmission components of motor
vehicles;
(iii)
the electrical equipment connected with motor vehicles, including
radios;
(ab)
automotive engineering;
(ac)
repairing, vulcanising and/or retreading tyres;
(ad)
repairing, servicing and reconditioning batteries for motor vehicles;
(ae)
the business of parking and/or storing motor vehicles;
(af)
the business conducted by filling and/or service stations;
(ag)
the business carried on mainly or exclusively for the sale of motor
vehicles or motor vehicle
parts and/or spares and/or accessories
(whether new or used) pertaining thereto whether or not such sale is
conducted from premises
which are attached to a portion of an
establishment wherein is conducted the assembly of or repairs to
motor vehicles;
(ah)
the business of motor graveyards;
(ai)
the business of assembly establishments;
(aj)
the business of manufacturing establishments wherein are
fabricated motor vehicle parts and/or spares and/or accessories
and/or
components thereof
;
(ak)
vehicle body building. (Own emphasis.)
[5]
The current scope of registration of the MIBCO contains the following
preamble:
“
Motor
Industry
” or “
Industry
”,
without in
any way limiting the ordinary meaning of the expression
(own
emphasis)
and subject to the provisions of any demarcation
determination made in terms of
section 62
of the
Labour Relations
Act, 1995
, includes –
(a)
…
Thereafter,
the definition is cast in identical terms to the definition of ‘motor
industry’ in the registered scope
of the MEIBC, save for the
addition of a sub-paragraph (l), which is of no consequence in these
proceedings.
[6]
Given the basis of the commissioner’s findings, a brief
overview of demarcations under
the Industrial Conciliation Act, 28 of
1956 is necessary. That Act came into operation in 1957, with its
long title having been
changed in 1988 to the
Labour Relations Act. I
shall refer to this statute as ‘the 1956 LRA. That statute
inherited from its predecessor the model of a vertical rather
than
horizontal system of wage regulation. In effect, wage regulating
measures had application on an industry basis i.e. they had
application in a particular industry as defined in the measure.
Whether an employer and its employees were associated together
in a
particular industry was (and remains) a matter of some importance.
[1]
As far back as 1926, in
R
v Seligson
1926 TPD 27
, the Supreme Court recognised the dual objective of
demarcation - to protect employees from receiving lower wages than
those laid
down in wage regulating measures applicable to the
industry concerned, but also to protect other employers in the
industry against
competition on the basis of lower labour standards.
[7]
Section 76
of the 1956 LRA dealt with the demarcation between
undertakings, industries, trades and occupations. Subsection (1)
provided
that the minister may, if he deemed it expedient to do so,
refer any demarcation question to the industrial court (previously
the
industrial tribunal) for determination. Subsection (6) empowered
the industrial court to investigate the issue and make a
determination.
Subsection (7) provided, in turn, that if the minister
was of the opinion that the determination was of sufficient
importance,
the determination would be published in the Gazette.
[8]
What was then the Industrial Council for the Iron, Steel, Engineering
and Metallurgical
Industries (NICISEMI) had an industry scope that
specifically excluded the manufacture of automotive components.
MIBCO’s
predecessor, the National Industrial Council for the
Motor Industry (NICMI), had a registered scope that specifically
included
the manufacture of those components, but for the manufacture
of motor vehicle parts or components in establishments laid out for
‘
and normally producing metal and/or plastic goods of a
different character on a substantial scale
’.
[9]
The business of motor vehicle ‘assembly establishments’
was also excluded from
the scope of both industrial councils. These
were defined to mean:
…
an
establishment or portion thereof wherein motor vehicles and/parties
thereof are completely or partially assembled from new components
on
an assembly line or otherwise, and includes the manufacture and
fabricating of any motor vehicle parts or components when carried
on
in such establishments.
[10]
In summary then, prior to November 1962, motor vehicle assembly
establishments were excluded
from the scope of the iron, steel and
engineering and motor industrial councils in respect of their
activities, while the automotive
component manufacturers fell within
the motor industry, provided that they did not qualify as an assembly
establishment and were
not laid out for and did not produce metal
and/or plastic components on a substantial scale.
[11]
On 30 November 1962, the minister published a demarcation
determination made by the then industrial
tribunal under
section 76
of the 1956 LRA (the 1962 determination). The 1962 determination
assumed some significance during the proceedings under review,
and is
referred to in the award as ‘Annexure K’. The 1962
demarcation reads as follows:
An
employer who is associated with his employees for the purpose of
manufacturing motor vehicle
parts and/or spares and/or
accessories and/or
components
of motor vehicles
is subject
to the provisions of sub-clause (2)
in respect of such
manufacturing activities
engaged in the ‘Motor Industry’
as defined by Government Notice No. 596 of the 24 April, 1959. [This
is the 1959 main agreement for the motor industry.]
(2)
An employer who is associated with his employees for the purpose of
manufacturing
–
(a)
motor vehicle
parts and/or spares and/or accessories and/or
components
of motor vehicles –
(i)
by any casting process
;
(ii)
from steel plate of one-eighth of an inch thickness or thicker in an
establishment laid out for
and normally engaged in the manufacturing
and/or maintenance and/or repair of civil and/or mechanical
engineering equipment on
a scale which is substantial in comparison
with the scale on which motor vehicle parts and/or spares and/or
accessories and/or
components of motor vehicles are manufactured in
such establishment;
(iii)
in an establishment laid out for and normally producing metal and/or
plastic goods of a different
character on a scale which is
substantial in comparison with the scale on which motor vehicle parts
and/or spares and/or accessories
and/or components of motor vehicles
are manufactured in such establishment;
(iv) in
an establishment laid out for and normally concerned with structural
metal work on a scale which is substantial
in comparison with the
scale on which motor vehicle parts and/or spares and/or accessories
and/or components of motor vehicles
are manufactured in such
establishment;
(b)
components or parts of the transmission system of a motor vehicle
;
(c)
motor vehicle wheels and/or axles and/or brake drums
;
is
in respect of such manufacturing activities engaged in the ‘Iron,
Steel, Engineering and Metallurgical Industries’
as defined
by Government Notice No. 2008 of the 9
th
December,
1960. [This is the 1960 main agreement for the aforesaid industry.]
[12]
On 13 March 1964, a clarification notice was published in the Gazette
in terms of which the industrial
tribunal clarified the provisions of
clause 3(2) (a) (i) of the determination quoted above as follows:
Manufacturing
of motor vehicle parts and/or spares and/or accessories and/or
components of motor vehicles
by any casting process includes any
machining necessary for the completion of the article
(own
emphasis) so manufactured whether or not the casting and machining
are done in the same establishment.
[13]
At the time that the industrial tribunal made the 1962 determination,
the scope of registration of the NICISEMI
contained the same
exclusionary definition of the ‘
motor industry
’ as
is contained in the current scope of registration of the MEIBC; and
it accorded with the definition of the motor industry
in the NICMI’s
scope of registration at the time, as it currently does.
[14]
As appears from the heading,
[2]
the 1962 determination dealt with paragraph (j) of the exclusionary
definition of motor industry, which excluded from the iron,
steel,
engineering and metallurgical industry (as it does today) ‘
the
business of manufacturing establishments wherein are fabricated motor
vehicle parts and/or spares and/or accessories and/or
components
thereof
’.
In summary, the effect of the 1962 demarcation was to establish that
these businesses were engaged in the motor industry,
with the
exception being,
inter
alia
,
businesses involved in the manufacturing of:
(i)
motor vehicle components by way of a casting process;
(ii)
components of a transmission system; and
(iii)
wheels, axles or brake drums.
[15]
At the arbitration hearing, only two witnesses testified. The first
was a Mr Ken Manners, who is the owner of the
eighth and ninth
applicants in PR 3/18. He explained the nature and extent of the
changes to the motor industry over the last few
decades. He stated:
The
process by which motor vehicles are built, globally, has evolved over
the last 20 to 30 years very extensively. Such that the
OEMs, the
original equipment manufacturers, actually make very few components.
They are fundamentally assemblers of motor vehicles.
[16]
Manners testified further that the component manufacturing industry
was consequently no longer dominated
by the OEM ‘assembly
establishments’ who had historically been organised beyond the
scope of the MIBCO and MEIBC. He
continued:
What
that means is that by implication they [the OEMs] will purchase body
parts and subassemblies from what we call first tier suppliers
and
first-tier suppliers evolved very dramatically and massively so
around the globe into organisations if I could drop names like
Bosch,
for instance, or large companies which are often bigger than the OEMs
themselves.
And
who specialize in manufacturing sub-assemblies and assemblies which
are then supplied on what is known as a JIT, Just-In-Time
basis, to
the OEMs for assembly on a continuous production line. Now those
first tier suppliers obviously then are sourcing the
components for
their assemblies and sub-assemblies in a lower tier, which is
commonly referred to as the second tier.
The
second tier is really where the automotive component industry lies.
Inasmuch as that its membership or the participant of the
component
sector are predominantly manufacturers of components as opposed to
assemblies or sub-assemblies …. What’s
so important is
that the auto industry is defined as a value chain or supply value
chain. So regardless of where a participant
is placed in the value
chain, they are all nevertheless vital to the entire process.
And
further, under cross-examination, Manners described how he had
changed the nature of the business after he purchased it in 1993,
from a fastener manufacturer to a manufacturer of tow bars and towing
equipment:
The
automotive industry itself has also changed very dramatically. There
are companies that in the 80’s and 90’s may
have been
supplying into the automotive sectors such as it was in those days
but the sector at that time, bears very little resemblance
to the
sector as such today. It has become inextricably part of that global
mechanism associated with all the motorcars and so
those companies
that found themselves in the MEIBC perhaps 10 years ago may have had
some relevance to their specific manufacturing
processes or reasons
why they would have bargained under those structures. I think it’s
the fundamental point that we have
to deal with in this matter. We
are looking to align ourselves into an industry which is relevant
today. Not 20 years ago and not
in 1962.
[17]
Manners expressed the view that the demarcation applicants found
themselves in the MEIBC by dint
of history. Further, he considered
that the MEIBC was an entirely unsuitable collective bargaining forum
for issues concerned with
the motor industry. Automotive component
manufacturers found themselves without a voice in the bargaining
structures of the MEIBC.
He cited the example of having to bargain
with MEIBC employers who manufacture wheelbarrows, hand tools and
taps.
[18]
An official from the MIBCO, Mr Pauw, testified that he had conducted
inspections of the applicants
in the arbitration proceedings. His
view was that the end product was more relevant than the process by
which a component was manufactured,
that the applicants manufactured
motor vehicle components and that they all ought to resort within the
scope of the MEIBC.
[19]
Manners and Mr Pauw, were the only witnesses who testified. There is
no evidence of any cross-examination
of either witness regarding
Annexure K (the 1962 determination), nor was any evidence led on it.
[20]
Also before the commissioner was a copy of an email, to which he
makes reference in his award,
addressed to a Mr. Chaplin at MIBCO
from a Mr. Horn, regional manager of the MEIBC. The email is dated 13
July 2015 and attaches
a copy of the 1962 determination. The email
records that the 1962 determination ‘
served as the basis on
which the applicant companies were found to result under and be
registered with MEIBC’
.
The
arbitration award
[21]
What the dispute before the commissioner boiled down to was whether
the businesses of the 17 applicant component
manufacturers fell
within the motor industry definition. If they did, then they fell
outside the scope of the MEIBC, and into the
MIBCO. What this
required was a determination whether, without limiting the ordinary
meaning of the expression ‘motor
industry’, the
businesses of the applicant component manufacturers included ‘
the
business of manufacturing establishments wherein are fabricated motor
vehicle parts and/or spares and/or accessories and/or
components
thereof…
’.
[22]
This determination was required to be made in respect of an
undisputed set of facts, including the common
cause fact that all of
the applicants are involved in the manufacture of motor vehicle
components of various types. It was also
not disputed that they
supply original equipment manufacturers (described as OEMs) directly
and/or supply those who supply them.
In this sense, the applicants
are part of what was referred to as the motor vehicle value chain, or
supply value chain. The OEMs
set the exact specifications for the
components, including the materials that should be used and their
strength. While some of
the applicants are also involved in the
manufacture of non-motor components, this involvement is minuscule.
Insofar as bargaining
structures are concerned, the MEIBC does not
have a separate negotiating chamber for component manufacturers. By
way of contrast,
the MIBCO is structured to provide for separate
negotiations for component manufacturing establishments, referred to
in the MIBCO
main agreement as ‘Chapter III establishments’.
[23]
The main findings made by the commissioner are reflected in the
following extract from his award:
40.
With regards to Annexure K, in hindsight and given that Annexure K is
a determination published in a government
Gazette by direction of the
then Minister of Labour, section 5(2) of the Civil Proceedings Act is
applicable and that there was
no need to lead evidence on the said
document. Annexure K is therefore admissible.
41. As
to the emails between Horn and Chaplin, even though it was only given
at the argument stage, it is my view
that such emails are accepted as
relevant and admissible. Mr Pauw did not dispute the content thereof
[in his own words]. The content
of these emails gives clarity to
Annexure K in terms that it existed, and that the fourth and fifth
respondents have been applying
the determination to the state. In the
interests of fairness and justice, I have given credence to remarks
of Steenkamp J in the
National Textile Bargaining Council v De
Kock
at para 25: “the commissioner, as a specialist
decision maker entrusted with the weighty decision of social
relations policy
greatly affecting the rights and prospects of the
parties can be expected to have taken into account something more
than the registered
scope of the competing industries. The social
purpose of demarcation is to promote the objectives of the LRA (which
do not encompass
narrow interests of bargaining councils
themselves).”
42. In
my view, when we have to determine whether an employer/employers fall
within the scope of the bargaining
council, consideration must be
taken of the history of collective bargaining in either of the
bargaining councils, any determinations
already made in respect to
the issue at hand and more importantly, how the parties to the
bargaining council have interpreted the
issue at hand.
43.
From Annexure K and the emails, we can gather the following:
27.1 a determination was
made and the Gazette exists which regulates the issue at hand for the
10 applicant companies mentioned
above;
27.2 there is
no evidence before me to conclude that such determination has been
repealed and/or done away with. There
is nothing in the
Labour
Relations Act 66 of 1995
that reflects that the determination is or
was repealed. An enactment of legislation does not automatically
repeal previous determinations
and judgements unless it specifically
states that it does. In this case, there is nothing;
27.3 from 1963 up
until today, it has always been the understanding that companies
business activities that fall within the
scope of the determination,
will reside at the fourth respondent…
27.4
what is of relevance is that the councils in this case have
interpreted the business activities of companies
that fall within the
scope of the determination to reside at the fourth respondent.
44.
From the above, it is my view that we are bound by the determination
in Annexure K (sic).
[24]
Regarding the argument that the competitors of the ten applicants
bound by the determination do not currently
fall within the scope of
the MEIBC, the commissioner held that “
there was no
substantial evidence placed before me as to how these competitors are
not residing at the [MEIBC]
”. As for Mr Pauw’s
evidence about a competitor having been demarcated from the MEIBC to
MIBCO, the commissioner held
that “
[t]here was no evidence
led to determine what the facts of the case was and the reasons for
the argument
”. Furthermore, “
in the absence of
contrary demarcation rulings having been made in respect of such
competitors, the fact that they have escaped
the [MEIBC’s]
regulatory oversight to date, does not mean that they do not fall
within its jurisdiction
”.
[25]
Turning next to the submission that the nature of the applicants’
businesses are determined
by their end products (i.e. motor
components) and that they fall within the motor component value
chain, the commissioner came
to the following conclusion:
47. In
my view, the activities of a company are not determined by the end
product it manufactures but ‘by
the nature of the enterprise in
which employees and employer are associated for a common purpose’.
… I might add here,
that the nature of the enterprise is one
determined by the process whereby an end product is made. If the
process leading up to
the end product is one of engineering, it
cannot be argued that because the end product is a motor component
and together with
other motor components not using an engineering
process, fall within the motor component value chain, that a company
should reside
at the [MIBCO].
48. As
I have already concluded that
we are bound by
the
determination in annexure K, which effectively means that the
ten applicants’ business activities are engineering.
It is my
conclusion, that said applicants have no position in the value chain
of motor components for purpose of determination.
49.
Given the above, the ten applicants mentioned supra should reside
within the scope and ambit of the [MEIBC].
[26]
Dealing separately with Torre Automotive (the tenth applicant in
these proceedings) the commissioner
held that its business activities
fell squarely within the scope of the MEIBC.
[27]
In the result, the commissioner demarcated the ten applicants he had
referred to as covered by
the 1962 determination (as well as Torre
Automotive), as falling within the scope of the MEIBC, and the
remaining six applicants
as falling within the scope of the
MIBCO.
NEDLAC’S
objections
[28]
In terms of
s 62
(9), NEDLAC is involved in the initial demarcation
of bargaining councils, and must be consulted by commissioners in
respect of
demarcation disputes. The factors that NEDLAC ought to
take into account were described by the 1996 Commission to
Investigate the
Development of a Comprehensive Labour Market Policy.
These are also obviously relevant to any demarcation made by a
commissioner,
and to NEDLAC’s consultation with commissioners
when demarcation awards are discussed. In its report, the Commission
said
the following, at paragraph 170:
170.
The new labour law envisages a role for NEDLAC and the social
partners in demarcating industries…
This imposes an obligation
to discuss the type of industry-level bargaining arrangements
envisaged. The Commission believes a number
of principles should
inform a rational approach to demarcation. First, the aim should be
to bring together in one bargaining forum
broadly similar producers
or service providers. The product market must be assessed to ensure
that the industry scope is neither
too broad nor too narrow. Second,
it is particularly important to take into account the
labour-intensity of the component parts
of the industry to ensure
that the same minimum conditions do not automatically apply to vastly
different situations, possibly
acting to discourage job creation.
Third, account should be taken of the actual or planned structure of
training arrangements in
the industry concerned. Fourth, the number
of employees covered should be sufficiently large to allow economies
of scale in relation
to, for example, benefit funds, while not being
too large such that sub-sectors with little in common are bunched
together.
[29]
Section 62
(9) of the LRA contemplates that NEDLAC, the
decision-maker which initially demarcated the sector, should furnish
the commissioner
with its views concerning any demarcation decision.
(See
SA
Municipal Workers Union v Syntell (Pty) Ltd & others
(2014) 35
ILJ
3059 (LAC) at paragraphs 19, 25 and 27.) In that matter, the
LAC reviewed the nature of proceedings in terms of
s 62
at some
length. In short, the court held that a
s 62
process contemplated
more than a conventional arbitration contest between interested
parties, and presupposed a ‘broader
investigative role’
[3]
The LAC referred to two decisions by this court
[4]
where the court had held that in demarcation disputes, there is
likely to be a broad range of approaches and outcomes, and that
the
court ought to adopt a deferential approach, recognising the
expertise of commissioners engaged in demarcations, and intervening
only if the boundary of reasonableness is crossed.
[30]
In the present matter, NEDLAC addressed a letter to the CCMA on 21
November 2017, noting that it had
received the award under review,
which was the subject of a meeting held with the commissioner on 7
September 2017. The standing
committee expressed the view that it
could not support the award since the commissioner had failed
satisfactorily to address key
areas of concern. These included what
were referred to as
i.
an overwhelming reliance on the 1962
determination in arriving at the final determination;
ii.
a complete rejection of the value chain
argument presented by the applicants;
iii.
inappropriate and unnecessary weight being
attached to the history and different collective bargaining practices
and structures
as between the two bargaining councils;
iv.
a rejection of the argument that a
company’s product is relevant to determining its industry and
not necessarily the nature
of the enterprise in which employees and
the employer are associated for a common purpose; and
v.
inconsistency in the final demarcation of
the 18 applicants ‘even on the basis of the arbitrator’s
own reasoning and
rationale’.
[31]
But for the demarcation in respect of Torre Automotive (the tenth
applicant in PR 03/18), NEDLAC’s
standing committee expressed
the unanimous view that the demarcation was ‘
unconvincing,
inconsistent and in all likelihood open to challenge
’
and that it could not support the award. These observations obviously
impact on the assessment of the award under review,
having regard to
the grounds for review raised by both the demarcation applicants and
MIBCO.
The
grounds for review
[32]
The demarcation applicants raise six grounds of review. The first is
that the commissioner committed
a material error by regarding himself
as bound by the 1962 determination, and that the error amounted to a
material mistake of
law, a gross irregularity in the proceedings,
administrative action that fell foul of the principle of legality and
resulted in
the award being unreasonable in its result. Secondly, the
applicants contend that the commissioner’s rejection of the
applicants’
value chain argument (which it contends points
ineluctably to the conclusion that the applicants’ enterprises
fell in the
motor industry and thus MIBCO’s scope) constitutes
a gross irregularity. Thirdly, the applicants contend that
inappropriate,
incorrect and/or unnecessary weight was attached to
the history and different bargaining practices and structures as
between the
MEIBC and MIBCO. Fourthly, the demarcation applicants
submit that the commissioner erred in concluding, as he did, that the
relevant
enterprises were not to be determined by or with reference
to the value chain argument and their end products, compared with the
registered scope of the MEIBC and the MIBCO, but instead with
reference to the fact that engineering processes were required to
produce the metal automotive components produced by the applicants,
and that the applicants thus fell within the MEIBC’s
scope. Put
another way, the demarcation applicants contend that the
commissioner’s view that the nature of the industry is
determined by the manufacturing process (in this case, engineering)
and not the end product (in this case, a motor vehicle component),
is
entirely misconceived. Fifthly, the demarcation applicants contend
that the commission was inconsistent in the final demarcation,
even
on the basis of his own reasoning and that he thus acted
irrationally. Finally, the applicants raise certain flaws in relation
to the delays occasioned and procedure followed by the
commissioner.
[5]
[33]
MIBCO raises three main grounds – a material error of law in
regard to the status of the
1962 demarcation, the contention that the
commissioner attached inappropriate and unnecessary weight to the
evidence of the history
and different collective bargaining practices
and structures of the MIBCO and MEIBC, and that the demarcation is
inconsistent and
contradictory.
[34]
In summary, the primary grounds for review that emerged from the
argument presented at the hearing
relate first to the status of the
1962 demarcation; secondly, the commissioner’s assessment of
the collective bargaining
history and structures; and thirdly, his
rejection of the significance to be attached first to the value chain
of which the demarcation
applicants are an integral part and
secondly, the outcome of a production process as opposed to the
nature of that process. I deal
with each of these after a
consideration of the applicable law.
Relevant
legal principles
[35]
The applicants refer to the most recently decided case by the LAC on
demarcation reviews,
SBV Services (Pty)
Ltd v National Bargaining Council for the Road Freight and Logistics
Industry & others
(2017) 38 ILJ
1978 (LAC). In that case, the LAC referred to
NUMSA
v Assign Services
[2017] 10 BLLR 1008
(LAC), where the same court had said the following:
26. An
incorrect interpretation of the law by a commissioner is, logically,
a material error of law which will result in both an
incorrect and
unreasonable award. Such an award can be either attacked on the basis
of its correctness or for being unreasonable.
[36]
That a demarcation award can be set aside on the basis of correctness
is not a principle that
until
SBV
had been expressly acknowledged as a ground for review in demarcation
disputes.
[6]
The basis for the
review of a demarcation award has historically been one of
reasonableness.
[7]
A correctness
test recognises that a demarcation dispute admits a single correct
answer and the enquiry on review is limited to
whether the
commissioner’s conclusion was right or wrong. A reasonableness
test on the other hand presupposes that there
will inevitably be no
single correct judgment, but a wide range of approaches and outcomes
to which reasonable decision-makers
could come.
[37]
There is a line of judgments by the LAC that establish that an
arbitration award may be set aside
as constituting a gross
irregularity when a commissioner commits an error of law, provided
the error of law was material, in the
sense that it materially
affected the commissioner’s ultimate decision.
[8]
Put in the negative, an error of law is not material if the
commissioner would have reached the same decision on the facts,
despite
the error of law.
[9]
[38]
The prevailing authority on the effect of an error of law in review
proceedings under
s 145
of LRA remains Head of the Department of
Education v
Mofokeng & others (2015)
36 ILJ 2802 (LAC)
, where Murphy AJA
said the following:
[30]
The failure by an arbitrator to apply his or her mind to issues which
are material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
have held that before such an irregularity will result in the
setting aside of the award, it must in addition reveal a
misconception
of the true enquiry or result in an unreasonable
outcome…
[32]
…Mere errors of fact or law may not be enough to vitiate the
award. Something more is required. To repeat: flaws in
the reasoning
of the arbitrator, evidenced in the failure to apply the mind,
reliance on irrelevant considerations or the ignoring
of material
factors etc. must be assessed with the purpose of establishing
whether the arbitrator has undertaken the wrong enquiry,
undertaken
the enquiry in the wrong manner or arrived at an unreasonable result.
Lapses in lawfulness, latent or patent irregularities
and instances
of dialectical unreasonableness should be of such an order
(singularly or cumulatively) as to result in a misconceived
inquiry
or a decision which no reasonable decision-maker could reach on all
the material that was before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the inquiry.
In the final analysis, it will depend on
the materiality of the error or irregularity and its relation to the
result. Whether the
irregularity or error is material must be
assessed and determined with reference to the distorting effect it
may or may not have
had upon the arbitrator’s conception of the
inquiry, the delimitation of the issues to be determined and the
ultimate outcome.
(Own emphasis.) If
but for an error or irregularity a different outcome would have
resulted, it will
ex hypothesi
be material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable result. The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant
factors informing the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable
equilibrium has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the
arbitrator, a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the issues, with the
result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted from the correct
path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.
Analysis
[39]
Mr Euijen SC, who represented NUMSA, conceded that the commissioner
had committed a material
error of law, to the extent that he regarded
Annexure K as binding on him. This is obviously so. I fail to
appreciate how it can
be said that a determination made by the
industrial tribunal under the 1956 LRA retains binding effect
notwithstanding the repeal
of the 1956 LRA. Under the LRA, NEDLAC
demarcated the registered scope of bargaining councils afresh. In
that process, the terms
of the 1962 determination were not
incorporated into the MEIBC’s scope of registration, nor that
of the MIBCO. Further,
s 76
(6) of the 1956 LRA made clear,
demarcation decisions were dependent on the circumstances of each
case. This is fundamentally at
odds with the notion that the 1962
determination constituted a binding precedent either in respect of
any subsequent demarcation
proceedings under the 1956 LRA or for the
purposes of the present case. In any event, Annexure K, being a
determination of the
industrial tribunal, was always capable of
variation by the tribunal in term s of
s 76
(6) of the 1956 LRA. That
being so, there is no basis on which it remained binding on a
commissioner performing the function of
a demarcation in terms of
s
62
of the LRA.
[40]
The status of a demarcation determination similar to that under
consideration in the present
instance was dealt with extensively by
commissioner Marcus in
National Union of
Metalworkers of SA & another v Henfred Fruehaf Trailers &
others
(2008) 29
ILJ
468 (CCMA). In his award, the learned
commissioner rejected a submission to the effect that he was bound to
follow a determination
issued by the industrial tribunal in 1977,
issued in terms of
s 76(3)
of the 1956 LRA. Commissioner Marcus went
on to say (at p 471):
Even
if I were to accept Mr van der Riet’s submission that the form
of the determination adopted by the tribunal which is
expressed in
general terms to apply to the class of work/employer activities
concerned with the manufacture of tankers and trailers,
renders it
res judicata on these issues which would preclude me from determining
same otherwise than in accordance with the ruling,
I believe I cannot
be barred from deciding these matters afresh in as much as such
determinations are not seen by the empowering
statute (the 1956 Act)
as being cast in stone. Section 76 (8) some of that act envisages
such determinations as being subject to
variation by the tribunal
when appropriate. Presumably this would apply where, for example, the
facts and circumstances informing
and underlying the determination
had changed. If the tribunal was itself empowered by its empowering
statute to very its previous
rulings on these matters, surely the
CCMA, an entirely new institution charged with performing
demarcations under entirely new
legislation in the form of the 1995
Act, informed by different terms of reference in the form of s 62 (1)
and other relevant provisions
thereof, cannot be precluded from doing
so when appropriate. In the case of the 1977 ruling, it seems to be
no limitation can or
should be placed on the CCMA’s powers to
deviate from that reading inasmuch as the tribunal’s reasoning
informing its
decision in the underlying facts and circumstances
giving rise the two are unknown, a lacuna which renders it quite
impossible
for this forum to determine the continued appropriateness
today (some 30 years down the line) are the general or, more
relevantly,
with reference to the enterprises engaged by the second
applicant and the first respondent in common purpose with their
employees.
[10]
[41]
In short, the 1962 determination was never binding on the
commissioner. At most, the 1962 determination
is of historical
interest, and perhaps serves to explain no more than why the
demarcation applicants find themselves located within
the scope of
the MEIBC.
[42]
For the above reasons, I am satisfied that in so far as the
commissioner regarded the 1962 determination
as having a binding
effect, he committed an error of law. The error was obviously
material since it was the primary basis on which
he came to the
result that he did. Indeed, the 1962 determination was the primary
basis on which the demarcation was made.
[43]
Mr Myburgh SC, who appeared on behalf of the demarcation applicants,
submitted that in view of
NUMSA’s concession that the
commissioner had committed an error of law when he regarded the 1962
determination as binding
on him, it was not open to NUMSA to contend
that the award was nonetheless capable of reasonable justification.
In other words,
a test of correctness applied – if the
commissioner erred (as he did) it was not open to NUMSA to ‘reverse
into reasonableness’
in defence of the award.
[44]
There is merit in this submission, especially in a case (such as the
present), where what is
primarily at issue is the application of a
definition of scope to an agreed set of facts. This is not one of
those cases such as
S
v Morningside Nursing Home (Pty) Ltd
(1989)
10
ILJ
1150,
where the certificate of registration made reference to an industry
in which ‘
employer
and employee are associated for the purpose of
… [e.g. building, manufacturing footwear, and the like]. A
determination of this nature obviously calls for an enquiry
into
duration and scale and often resolves itself into a question of
degree - thus an assessment of the reasonableness of the
commissioner’s conclusion. In the present instance, given
MIBCO’s definition of scope, the commissioner was required
to
determine whether the demarcation applicants’ businesses were
manufacturing establishments in which motor vehicle parts,
spares,
accessories or components were fabricated. In other words, what was
at issue was the application of a definition to an
agreed set of
facts, not unlike a jurisdictional dispute where a commissioner is
required to determine whether an applicant is
an ‘employee’
as defined, or whether he or she was dismissed.
[11]
[45]
Had the commissioner conducted the enquiry on that basis, he would
have concluded that the definition
of ‘motor industry’ in
MIBCO’s scope of registration clearly extends to the business
of the demarcation applicants,
since they conduct the business of
manufacturing establishments ‘wherein are fabricated motor
vehicle parts and/or spares
and/or accessories and/or components
thereof’. The commissioner appears to have been alive to
the inevitable outcome
of the application of the definition to the
undisputed facts. At paragraph 27 of the award, he says:
On
face value, if we compare the common cause facts relating to the
applicants, as to their business activities and that they manufacture
motor components, and if we apply a literal interpretation, with the
Certificate of Registration of the [MEIBC] and [MIBCO], it
may be
possible to interpret that the applicants fall within the scope of
the [MIBCO].
Quite
why the commissioner did not choose to apply a literal interpretation
(or the ordinary meaning) of the definition of scope
and arrive at
the foreshadowed result is not apparent from the award. Viewed thus,
the commissioner’s award was clearly wrong,
and stands to be
reviewed and set aside on that basis.
[46]
In the present instance, even if I were to apply a threshold that
acknowledged the possibility
of an obviously wrong but reasonable
decision,
[12]
in my view, the
result would be no different. In terms of
Mofokeng
,
the material error of law committed by the commissioner points to a
result that is
prima
facie
unreasonable. In other words, the commissioner’s flawed
reasoning aside, the court must nonetheless consider whether the
result of the proceedings under review could nevertheless reasonably
be reached in the light of the
general
nature of the decision in issue; the range of relevant factors
informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of
the
LRA.
[47]
Mr Euijen SC submitted that there are such residual reasons that
underpin the award and which
serve to locate it within the band of
reasonableness. In particular, he referred to the bargaining history
between the parties
and the nature of the process undertaken to
produce the end product in each case. These submissions raise the
second and third
substantive grounds for review, i.e. that the
commissioner misdirected himself by attaching inappropriate and
unnecessary weight
to the evidence of the history and different
collective bargaining structures and practices of the MIBCO and
MEIBC, and that he
committed a reviewable irregularity by rejecting
the significance of the outcome of a production process as opposed to
the nature
of that process. I deal with these grounds for review
seriatim
.
[48]
The commissioner’s conclusion in relation to the history and
different collective bargaining
practices and structures as between
the MEIBC and MIBCO was informed entirely by the exchange of emails
between Chaplin and Horn,
and the 1962 determination. The demarcation
applicants do not dispute the relevance of bargaining history and
structures, but contend
that these are informed primarily by the 1962
determination, which no longer binds the parties. They submit further
that they fall
within the definition of ‘motor industry’
for the purposes of the MIBCO’s scope, and that changed
circumstances
in the motor manufacturing industry warrant their being
located within that scope.
[49]
NUMSA contends that the MEIBC and its predecessors have a long
history as part of the South African
industrial relations framework,
going back as far as 1944, when the NICISEMI was formed. While the
assembly of motor vehicles has
historically been excluded from the
scope of the MEIBC and its predecessors, the processing of metals has
historically formed part
of their registered scope. NUMSA makes the
point that for decades, the demarcation applicants saw no
contradiction between being
engaged in the manufacture of automotive
components, while being registered with the MEIBC. The current
initiative to seek a re-demarcation
of the applicants arises only out
of dissatisfaction with bargaining processes in the MEIBC. The
long-standing acceptance by employers
that they fell within the scope
of the MEIBC is explained both by the 1962 demarcation, and the fact
that when an automotive component
is manufactured in a forge or
foundry by way of a typical metalworking operation, it should fall
within the scope of the MEIBC
and gives rise to no anomalies. On the
contrary, all metalworkers in these circumstances could consistently
be bargained for within
a single and coherent framework.
[50]
While it may be correct that the processing of metals (excluding the
assembly of motor vehicles)
has historically been included in the
scope of the MEIBC and its predecessors, this is not a sufficient
reason in itself to find
that the demarcation applicants fall within
that scope. The fact that the 1962 determination has regulated the
position of the
demarcation applicants for almost 60 years is
similarly not in itself a basis to sustain a finding that even if the
1962 determination
is not binding, its terms should prevail.
[51]
In the present instance, Manners’ evidence regarding changes to
the motor vehicle manufacturing
industry and the component
manufacturing industry was uncontested. His evidence that
component manufacturers found themselves,
as products of history,
sitting in the MEIBC bargaining alongside employers with whom they
shared no common interest, was a matter
entirely ignored by the
commissioner. Any demarcation ought properly to take into account the
interest of the employer parties,
if only because one of the
principal purposes of bargaining at sectoral level, as I have
indicated, is to minimise competition
between employers on the basis
of wages and other conditions of employment. For this reason,
collective bargaining and collective
agreements are excluded from the
application of the
Competition Act, 89 of 1998
. What this necessarily
entails in any demarcation is the allocation of like with like. The
anti-competitive moment in the demarcation
of sectors and the
demarcation of businesses into defined sectors is lost when employers
such as Manners and the other demarcation
applicants, whose
businesses manufacture automotive components, are required to bargain
with employers who manufacture taps and
wheelbarrows.
[52]
In regard to the third ground for review, it should be recalled that
the commissioner (at paragraph
47 of the award) held:
I
might add here, that the nature of the enterprise is one determined
by the process whereby an end product is made. If the process
leading
up to the end product is one of engineering, it cannot be argued that
because the end product is a motor component and
together with other
motor components not using an engineering process, fall within the
motor component value chain, that a company
should reside at the [the
MIBCO].
[53]
What the commissioner’s reasoning amounts to is that the
activities of an enterprise are
not determined by the end product it
manufactures, but only by the nature of the enterprise in which
employees and the employer
are associated for a common purpose, in
circumstances where the nature of the enterprise is defined or
determined by the process
used to manufacture the end product.
[54]
NUMSA similarly submits that the end product of a process is not
definitive of the essential
character of the operation. Rather, it
contends that if an operation involves the processing or shaping of
metal, then the operations
are to be treated as part of the metal
industry. If metalworking processes are absent, NUMSA submits that
the character of the
operations may in principle be something else,
and that the business may potentially fall within the ambit of the
motor industry,
provided that its operations fall within the
definition of that industry. This approach would be consistent with
the approach taken
historically (as demonstrated by the 1962
demarcation) - it allows for metalworkers to be treated uniformly
within a single centralised
bargaining structure, it is consistent
with the approach taken in prior decisions
[13]
and it avoids the anomalies associated with employers switching
industries when switching production as between automotive and
non-automotive products.
[55]
What this approach ignores is the definition of scope of the MEIBC
and the MIBCO respectively.
Excluded from the jurisdiction of the
MEIBC is the motor industry, defined in paragraph (j) as ‘
the
business of manufacturing establishments
wherein
are fabricated motor vehicle parts and/or spares and/or accessories
and/or components thereof
’
.
The definition makes no reference to the form of the manufacturing
process – it is confined specifically to outcomes in
the form
of parts, spares, accessories and components, regardless of the mode
of manufacture, engineering or otherwise. For the
commissioner to
disregard the outcomes of the manufacturing process in favour of a
determination based solely on the nature of
the process, constituted
a disregard for the applicable definition and contributed to an
unreasonable result.
[56]
A related issue is that of the significance of the value chain of
which the demarcation applicants
form part. The definition of
scope aside, the demarcation applicants contend, as I have mentioned
above, that the commissioner
committed a gross irregularity and came
to an unreasonable conclusion when he rejected the applicant’s
value chain argument.
In essence, that argument is that but for the
eighth and twelfth applicants, the percentage of each demarcation
applicant’s
business that relates to the manufacture and supply
of automotive components exceeds 90%. In the case of the eighth
applicant that
figure is 80%, and 86% in respect of the twelfth
applicant. It follows, so say the demarcation applicants, that for
all intents
and purposes the entire business enterprise of each
applicant is dedicated to the value chain relevant to the motor
industry. Further,
the automotive components engineered or
manufactured must meet automotive industry specific specifications.
They are not intended
or made for use in other industries. None of
the applicants’ enterprises have discrete portions dedicated to
the manufacturer
engineering of nonautomotive components will. Put
another way, of the more than 3800 employees engaged by the
demarcation applicants,
less than 1% are engaged in work activities
not related to the production of automotive components. The
demarcation applicants
contend that to the extent that the
commissioner failed to acknowledge these facts and ignored the nature
of the end product in
making his demarcation, he committed a
reviewable irregularity.
[57]
There is considerable merit in this argument, for it is one that
aligns the business activities
of the demarcation applicants with the
sector as a whole. The demarcation applicants are an integral link in
the chain or value
system between the conception and delivery of a
motor vehicle. Manners’ evidence that the value chain or system
is the mode
in which production is conceptualised and actualised in
the motor assembly industry was not challenged. The existence of a
value
chain or system locates the demarcation applicants within a set
of activities in the motor industry in which they receive raw
materials,
add value through the manufacturing process and sell the
finished product to the customer located in the next highest tier. To
ignore this evidence had the result of an unreasonable award.
[58]
In summary: the factors disclosed by the evidence indicate that the
demarcation applicants fall
within the scope of MIBCO’s
registration, the history of collective bargaining in the motor and
metal industries is based
principally on a determination that is some
60 years old and no longer binding, and the definition of scope
emphasises the outcome
of the manufacturing process rather than the
nature of that process. All of these factors, cumulatively
considered, indicate that
the only reasonable outcome of the
proceedings under review is a conclusion that all of the demarcation
applicants fall outside
of the MEIBC’s scope and within the
registered scope of the MIBCO.
[59]
For the above reasons, the commissioner’s decision to place the
demarcation applicants
within the scope of the MEIBC falls outside of
a band of decisions to which a reasonable decision-maker could come
on the available
evidence. The award accordingly stands to be
reviewed and set aside. The essence of NUMSA’s cross-review was
that the commissioner
committed a reviewable irregularity in
demarcating six of the component manufacturer into the MIBCO and
ought instead to have demarcated
them into the MEIBC. This contention
is based on the commissioner’s process/product finding. For the
reasons recorded above,
there is no merit in the commissioner’s
process/product finding. The cross-review stands to be dismissed.
Further, the conditional
cross- review, to the extent that it relies
on the submission that even if the commissioner committed a
reviewable defect by relying
on the 1962 demarcation his conclusion
is nonetheless capable of reasonable justification, for the same
reasons, stands to be dismissed.
[60]
A court will ordinarily substitute the decision of a commissioner
where all of the available
evidence is before the court and little
purpose would be served in a rehearing. The present case falls into
that category, and
the award stands to be substituted by an award to
the effect that the applicants be demarcated into the MIBCO.
Costs
[61]
Section 162
of the LRA affords this court a broad discretion to make
orders for costs according to the requirements of the law and
fairness.
The present case is one where those interests are best
satisfied by each party bearing its own costs. It is a matter of some
significance
to the parties and others active in their respective
industries.
Order
I make the following
order:
1.
That part of the award issued by the second
respondent on 31 July 2017 under case number ECPE 2470-15 in which he
found that certain
of the applicants in the proceedings under review
fall within the scope of registration of the sixth respondent, is
reviewed and
set aside.
2.
Paragraphs 59 and 61 of the award are
substituted with a ruling that the applicants fall within the scope
of the Motor Industry
Bargaining Council, and are so demarcated.
3.
The cross-review and conditional
cross-review are dismissed.
4.
There is no order as to costs.
___________________
André van Niekerk
Judge
Representation
For
the applicants: Adv. AT Myburgh SC
Instructed
by: Van Zyl
Attorneys
For
MIBCO:
Adv. J Partington
Instructed by:
Van Zyl Attorneys
For
NUMSA:
Adv. M Eujen SC, with him Adv. F le Roux
Instructed
by: Gray
Moodliar
[1]
A de Kock
Industrial
Laws of South Africa
1
st
ed., at p141
[2]
‘Determination – demarcation: manufacturing of motor
vehicle parts and/or spares and/or accessories and/or components
of
motor vehicles’
[3]
At paragraph [22].
[4]
Coin
Security (Pty) Ltd v CCMA & others
(2005) 26
ILJ
849 (LC) and
National
Bargaining Council for the Road Freight Industry v Marcus
NO
&
others
(2011) 32
ILJ
678 (LC),
[5]
This
ground for review was not seriously pursued at the hearing.
[6]
Perhaps
what the LAC sought to affirm in
SBV
(when it indicated that an applicant in a demarcation review had the
options of correctness or reasonableness as the basis for
review),
was that a decision that is obviously wrong is substantively
unreasonable. In other words, the threshold for unreasonableness
is
set at the obviously wrong award.
[7]
See
National
Bargaining Council for the Road Freight Industry v Marcus NO &
others
(2011) 32
ILJ
678 (LC), referring to
Coin
Security (Pty) Ltd. v Commission for Conciliation, Mediation and
Arbitration & others
(2005) 26 ILJ 849 (LC) and upheld on appeal in
National
Bargaining Council for the Road Freight Industry v Marcus NO &
others
(2013) 34 ILJ 1438 (LAC).
[8]
See,
for example,
Motor
Industry Staff Association & another v Silverton Spraypainters &
Panelbeaters (Pty) Ltd & others
(2013) 34
ILJ
1440 at para 42.
[9]
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal
2010
(6) SA 182
(CC).
[10]
The
award by commissioner Marcus was upheld on review (see
Hendred
Freuhauf (Pty) Ltd & another v Marcus NO & others
(2014) 35
ILJ
3147 (LC)).
[11]
See,
for example,
SA
Rugby Players’ Association (SARPA) & others v SA Rugby
(Pty) Ltd & others; SA Rugby (Pty) Ltd v SARPU & another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC), which dealt with the existence of a
‘dismissal’ as defined by
s 186
(1) of the LRA.
[12]
In
Herholdt
v Nedbank Ltd
[2012]
9 BLLR 857
(LAC), Murphy AJA suggested that ‘
few
decisions that are wrong are unlikely to be upheld as reasonable
’
(at para 55).
[13]
CWIU
v Smith & Nephew Limited
[1997]
9 BLLR 1240
(CCMA).