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[2018] ZALCD 3
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Lufil Packaging (Isithebe), A division of Bidvest Paperplus (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (D459/16, D722/15) [2018] ZALCD 3; (2018) 39 ILJ 1786 (LC) (20 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: D459/16 and
D722/15
In
the matter between:
LUFIL
PACKAGING (ISETHEBE), A DIVISION
OF
BIDVEST PAPERPLUS (PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
LEON
PILLAY
N.O.
Second Respondent
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA (KWAZULU-NATAL
REGION
Third Respondent
Heard:
23 November 2017
Delivered:
20 April 2018
Summary:
Unions right to organisational rights. Unions constitution and scope.
JUDGMENT
GUSH J
[1]
This
matter involves two applications by the applicant to review:
a.
firstly,
a ruling by the second respondent regarding a challenge raised by the
applicant, prior to the arbitration, to the first
respondent’s
“jurisdiction” to hear a dispute regarding organisational
rights referred by the third respondent
and the third respondent’s
locus
standi
to
refer such dispute; and
b.
secondly,
the arbitration award handed down by the second respondent in respect
of the dispute regarding organisational rights referred
to
arbitration.
[2]
The
ruling handed down by the second respondent relating to the
preliminary issue raised by the applicant dismissed this preliminary
point raised by the applicant; ruled that the third respondent was
entitled to claim organisational rights from the applicant in
terms
of the provisions of the Labour Relations Act 66 of 1995 (LRA) and
directed the first respondent to set the matter down for
arbitration.
[1]
[3]
Pursuant
to this ruling be handed down by the second respondent, the applicant
filed an application to review the ruling under case
number D722/15.
[4]
Prior
to the arbitration commencing, the parties entered into a
pre-arbitration minute in terms of which the second respondent was
required in accordance with the referral by the third respondent, to
determine:
i.
whether
the [third respondent] is entitled to the organisational rights it
seeks;
ii.
whether
the [applicant] is entitled to refuse organizational rights that the
[third respondent] seeks;
iii.
whether
the terms and conditions proposed by the third respondent were
reasonable, and if not, to set out terms and conditions
that are
fair;
iv.
determine
the date of implementation of the organizational rights that the
[third respondent] seeks.
[2]
[5]
At
the conclusion of the arbitration, the second respondent handed down
the award that forms the subject of the review under case
number
D459/16. The second respondent in the award concluded that the third
respondent was entitled to enjoy organisational rights
and set out in
the award the nature of those rights.
[3]
[6]
At
the commencement of the review hearing, the parties agreed that the
ruling (the subject of D722/15) lay at the heart of the matter.
The
crisp issue to be determined was whether the LRA entitled the third
respondent to represent its members in an application for
organisational rights and whether it was entitled to those rights.
[7]
Counsel
for the applicant conceded that in the event that its application to
review the ruling did not succeed that would dispose
of the matter.
Should the applicant be successful in reviewing the ruling, it would
follow that the review of the award by the
second respondent should
also succeed. Counsel for the third respondent agreed that the matter
should be dealt with on this basis.
[8]
The
essence of the applicant’s case was, as was recorded in the
second respondent’s ruling:
i.
that
the operations of the [applicant] do not fall within the registered
scope of the [third respondent]; and
ii.
that
consequent thereupon, the [third respondent] does not have the
required
locus
standi
to bring the above dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA); and
iii.
that
the [third respondents’] referral should be dismissed on this
basis.
[4]
[9]
The
applicant contended that the provisions of the third respondent’s
constitution that set out the third respondent’s
scope of, and
the industries in which it is entitled to organise, do not entitle
the third respondent to those organisational rights
contained in
Chapter 4 of the LRA. The applicant avers that the operations of the
applicant do not fall within an industry in which
the third
respondent may organise or fall within the third respondent’s
scope.
[10]
In
addition, the applicant avers that the employees’ right to join
the third respondent is limited by its constitution. Section
4 by the
of the LRA records the employees’ right to freedom of
association and includes the right to join a trade union “subject
to its constitution”.
[5]
[11]
The
relevant part of Chapter 3 of the LRA (part A) deals with Collective
Bargaining and in particular Organisational Rights. The
overarching
premise in this part that determines the entitlement to
organisational rights is, apart from registration, the unions
“representativeness”. The term representative trade union
is defined as meaning a trade union that is “sufficiently
representative of the employees employed by an employer in a
workplace”.
[6]
[12]
Other
than requiring a commissioner dealing with a dispute over
organisational rights to “minimise a proliferation of trade
union representation in a workplace” there is no reference to
the scope or constitution of the trade as a prerequisite to
organisational rights. What appears to be the determining factor is
sufficient representation.
[13]
It
is also so that the rights contained in part A of chapter 3, (other
than the right of access in section 12(1)) are all exercised
by
employees in the workplace who are members of the union and act in
that capacity.
[14]
Section
200 of the LRA regulates a unions rights of representation. It
provides:
‘
(1)
A registered trade union or registered employers' organisation may
act in any one or more
of the following capacities in any dispute to
which any of its members is a party -(a)
in its own interest;
(b)
on behalf of any of its members;
(c)
in the interest of any of its members.
(2)
A
registered trade union or a registered employers' organisation is
entitled to be a party to any proceedings in terms of this Act
if one
or more of its members is a party to those proceedings.
[15]
The
regulation of the union’s exercise of the rights in part A of
chapter 3 is set out in section 21, it provides:
‘
21. Exercise
of rights conferred by this Part 4
(1)
Any registered trade union may notify an employer in writing that it
seeks to exercise
one or more of the rights conferred by this Part in
a workplace.
(2)
The notice referred to in subsection (1) must be accompanied by a
certified copy of the
trade unions certificate of registration and
must specify-
(a)
the workplace in respect of which the trade union seeks to exercise
the rights;
(b)
the representativeness of the trade union in that workplace, and the
facts relied upon
to demonstrate that it is a representative trade
union; and
(c)
the rights that the trade union seeks to exercise and the manner in
which it seeks to exercise
those rights.
(3)
Within 30 days of receiving the notice, the employer must meet the
registered trade union
and endeavour to conclude a collective
agreement as to the manner in which the trade union will exercise the
rights in respect
of that workplace.
Conspicuous by its
absence in this section, is any reference to the union’s
constitution or scope.
[16]
The
exercise of organisational rights essentially governs and regulates
the manner in which the unions right to represent is members
is
exercised. The right to organise is on behalf of its member and at
their instance and as their representative.
[17]
The
issue of the unions right to represent its members has been dealt
both by this Court and the Labour Appeal Court.
[18]
In
Bidvest
Food Services (Pty) LTD v Numsa and Others
,
(
Bidvest
)
[7]
the applicant sought to interdict a strike. The respondent had, as in
this matter referred a dispute to the CCMA over organisational
rights
in terms of section 22(1) of the LRA. The applicant in
Bidvest
matter
(as in this matter) challenged the
locus
standi
of
the union to refer such dispute and the jurisdiction of the CCMA to
deal with the referral on the grounds that the scope and
constitution
of the union did not include its operations.
[19]
In
the
Bidvest
matter, the members elected to embark on industrial action. Bidvest
sought to interdict the strike on the grounds that the strike
was in
pursuit of an unlawful demand. Whilst the Court did not deal with the
issue of whether the demand was unlawful with regard
to the Union’s
scope and constitution, the court essentially upheld the right of the
employees to embark on strike action
as they had complied with the
provisions of the LRA in so far as it was required in order to
exercise their right to strike. It
does not appear as if Bidvest ever
appealed against this judgment or sought to review and set aside the
commissioner’s acceptance
that the union had
locus
standi
and that the CCMA had jurisdiction to deal with the dispute.
[20]
In
the matter of
Macdonald's
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union (AMCU) and Others
,
[8]
the Labour Appeal Court had occasion to consider what right an
employer had in challenging the right of a union to represent its
members where the employer averred that the employees membership of
the union had lapsed.
[21]
In
that matter, the employer had dismissed employees for embarking on a
strike in support of a demand for organisational rights
by and for
their union.
[22]
At
the CCMA arbitration regarding the dismissals, the employer had
challenged the right of the union to represent its members on
the
grounds that their membership of the union had lapsed as they had not
paid their membership dues.
[23]
In
dealing with the appeal, the Labour Appeal Court considered
inter
alia
“Whose rights are at issue?” and “What right, if
any, does any employer have to concern itself with the membership
status of individuals who wish to be represented by a particular
union?”
[9]
[24]
As
regards the issue of the rights, the Court held:
‘
[32] Both
the Arbitrator and the Labour Court, on the premise of the parties'
presentation of their cases, treated the matter as
if the
representation issue was solely about the union's right to
"represent" its members. However, it is also, and moreover,
primarily, concerned with the rights of the individual workers who
were parties to the dispute before the forum, to choose their
representatives.
[35] Certainly,
when a union demands organisational rights which accord to it a
particular status as a collective bargaining agent
vis à vis
an employer, it asserts and must establish it, itself, has a right to
speak for workers by proving they are its
members; sections
11-22 of the LRA regulate that right.’
[10]
[25]
The
second issue the court in
MacDonald’s
considered was the employer’s right or
locus
standi
to
challenge the employees’ membership status of the union.
‘
What is an
employer's locus standi to concern itself with the union membership
status of an employee?
[39] Although this matter can be
decided on the interpretation issue alone, as did the Labour Court,
the conduct of the appellant
is so egregious that it is appropriate
to deal with the tactic adopted by it, ie to challenge the right of
its dismissed employees
to demand in dismissal proceedings before an
arbitration forum to be represented by a union of their choice of
which they claimed
to be members.
[40] Bluntly, what business is it of
an employer, in such circumstances, to concern itself with whether
membership dues are up to
date or any other aspect of the
relationship between individual employees and their union? In my
view, there is no basis at all.
[42] Moreover, except as regards the
need for a union to prove membership for collective bargaining
purposes, the relationship between
a union and its members is a
private matter. To interfere with the private contractual
relationship of other persons, a stranger
would have to demonstrate
some sort of delictual harm. None exists to justify the appellant
seeking to pierce the veil of AMCU's
internal affairs in relation to
the dismissal dispute. If regard be had, for example, to the
requirements for an interdict, the
appellant, on these facts, can
demonstrate neither a right nor a harm. The appellant's legitimate
interest in the validity of membership
for another purpose, relating
to it incurring an obligation to accord AMCU a representative status,
is quite distinct from any
legitimate concerns it might conceivably
have in relation to arbitration proceedings about misconduct.
[43] Moreover, a
constitution is a no more than contract between an institution and
its members. Provisions of such a contract/constitution
relating to
the termination of membership by lapsing, are conditions for the
benefit of one party only, ie the union. The union
ought to be able,
at its election, to decide whether to invoke them or not. Excluding
the possibility of a union not enforcing
its rights for an extraneous
ulterior purpose, the union ought not to be obliged to invoke its
rights, least of all mechanically.
Even in such circumstances
involving ulterior motives, it would still be a complaint that only
fellow members would have the right
to raise, not a third party.
[11]
[26]
When
the dispute regarding the organisational rights was due to be
arbitrated by the CCMA, the applicant filed an application in
terms
of rule 31 of the rules of the CCMA challenging the jurisdiction of
the first respondent to deal with the dispute and the
locus
standi
of the third respondent.
[27]
Quite
clearly, the first respondent has jurisdiction. In fact, the LRA
specifically empowers the CCMA, in terms of section 22, to
deal with
“disputes about organisational rights.
[28]
As
far as
locus
standi
is concerned, the conditions precedent to a union wishing to exercise
organisational rights, in accordance with the LRA, need only
satisfy
two conditions:
a.
Firstly,
the union must be registered (see section 11 14 16 18 and 21). It is
common cause that the third respondent is a registered
union;
b.
Secondly,
that the union must be sufficiently representative (sections 11, 12,
13, 15, 16, 18 and 21). It appears from the papers
that the third
respondent is sufficiently representative of the applicant’s
employees. (70% of the applicant’s employees
are members of the
third respondent.)
[29]
Had
the legislature intended the scope of registration or the union’s
constitution t be determinative of the right to organisational
rights, it would have said so. The essence of the organisational
rights contained in part A of Chapter 3 are rights enjoyed
essentially
at the instance of the employees as members of the union.
[30]
In
so far as this matter is an application to review and set aside the
ruling, the parties were
ad
idem
that the outcome of that application depended solely on whether the
LRA precluded the third respondent from representing its members
in
applying for organisational rights. I am not persuaded that the
provisions of the LRA do that. The LRA sets out specifically
what is
required for a union to seek organisational rights and it is beyond
any doubt that the third respondent has satisfied those
requirements.
[31]
For
the reasons set out above, I am not satisfied that the ruling of the
second respondent in Case number D772/15 is reviewable.
That being so
the review of the award in D459/16 also fails.
[32]
As
far as costs are concerned, the parties agreed that no order as to
costs should be made.
[33]
I
make the following order:
a.
The
applicant’s applications to review and set aside the ruling in
D722/15 and the award in D459/16 are dismissed;
b.
There
is no order as to costs.
D H Gush
Judge of the Labour Court
of
South Africa
APPEARANCES:
FOR THE APPLICANT:
Mr E Ellis; ENS Attorneys
FOR THE RESPONDENT:
Adv. Pillay
Instructed by Harkoo
Brijlal and Reddy
[1]
Ruling paragraphs 53-54 page 25 of
the pleadings in D722/15.
[2]
Arbitration award paragraph 6 page 17
of the pleadings in D459/16.
[3]
Arbitration award paragraph 48 page
22 of the pleadings in D459/16.
[4]
Ruling paragraph 15 page 19 of the
pleadings in D722/15.
[5]
section 4(b).
[6]
Section 11.
[7]
(2015) 36 ILJ 1292 (LC).
[8]
[2017]
2 BLLR 105
(LAC) (
MacDonald’s
).
[9]
At page 109.
[10]
At pages 118/119.
[11]
At
paras 39-43.
.