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[2019] ZALCJHB 68
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SATAWU obo Members v Electronic Toll Collection (Pty) Ltd (J 2590/16) [2019] ZALCJHB 68 (27 March 2019)
in
the labour court of South Africa, JOHANNESBURG
Not
Reportable
case
no: j 2590/16
In
the matter between
SATAWU
OBO
MEMBERS Applicant
and
ELECTRONIC
TOLL COLLECTION
(PTY)
LTD
Respondent
Delivered:
27 March 2019
JUDGMENT
MAHOSI.
J
Introduction
[1]
This
is an application
in
terms of section 158(1)(c) of the Labour Relations
Act
[1]
(LRA)
for
an order to make the settlement agreement entered into between the
parties on 30 May 2016 under the auspices of the Commission
for
Conciliation, Mediation and Arbitration (CCMA) under case number
GAJB2054-16 an order of this Court.
It
is the applicant’s case that this order is sought as a result
of the respondent’s failure to comply with the terms
of the
said settlement agreement.
[2]
On 30 May 2016, the applicant referred a refusal to bargain
dispute to the CCMA. The dispute was set down for conciliation
where the parties concluded a settlement agreement in terms of which
it was agreed as follows:
‘
6.10.1 The
respondent will grant the union (applicant herein) the rights as per
the LRA Sections 12,13, 14 and 15 organisational
rights.
6.10.2 The trade union
stop order authorisation will be effective from the 30
th
June 2016.
6.10.3 The issue of
access and trade union representative and the number of days for
leave will be dealt with by the parties
through a recognition
agreement to be finalised no later than 30
th
June 2016.’
[3]
The basis on which the applicant seeks an order to make the
settlement agreement an
order of court was that, despite numerous
requests, the respondent refuses to bargain in good faith and to
adhere to the terms
of the settlement agreement.
[4]
The respondent disputes that a valid and enforceable settlement
agreement came into
existence on 30 May 2016. The respondent alleged
that it was induced to conclude the agreement on the basis of a
material misrepresentation
which caused it to act to its detriment as
the applicant is not a sufficiently representative of the employees
within its workplace.
The respondent submits that it would not have
concluded a settlement agreement if it had known that the actual
membership figures
of the applicant were only some 209 members which
is 23% of its entire workforce. The respondent further submits that
the settlement
agreement is void and that the applicant was afforded
sufficient opportunity to rectify or clarify the discrepancy raised
by the
respondent, but the applicant has failed to do so.
[5]
In its replying affidavit, the applicant submits that the respondent
verified the
membership on its own without the involvement of the
trade union and other stakeholders, which is contrary to section 21
of the
LRA. The applicant further submits that the respondent’s
representative cannot claim that he was induced into signing a
settlement
agreement, he is a commissioner in the CCMA with legal
background, he is not a lay person.
[6]
The issue is whether this Court has jurisdiction to make the parties’
settlement
agreement an order of the court. Section 158 (1) (c)deals
with the powers of the Labour Court and it provides that:
‘
(1)
The Labour Court may –
…
(c)
make any arbitration award or any
settlement agreement an order of the Court.
[7]
In
South
African Post office Ltd v CWU obo Permanent Part-Time Employees,
[2]
the
Labour Appeal Court (LAC) held that:
‘
[21]
…
before the
Labour Court will grant an order sought in terms of Section 158(1)(c)
of the LRA, it must be satisfied, at the very least,
that:
i.
the agreement, is one which meets the criteria set in s 158 (1)(c)
read
with section 158(1A) of the LRA, and if it is an award, it
satisfies the criteria set in section 142A of the LRA;
ii.
that the agreement or award is sufficiently clear to have enabled the
defaulting party to know exactly what it is required to do in order
to comply with the agreement or award; and,
iii.
there has not been compliance by the defaulting party with the terms
of the
agreement or the award.
[22]
Once the Labour Court is satisfied with all of the above then it
must, nevertheless, exercise its discretion whether to grant
or
refuse the order. In exercising the discretion, the Court must take
relevant facts and circumstances into account, such as are
necessary
to satisfy the demands of the law and fairness. Necessarily, each
case must be decided on its own facts and circumstances.
There is,
otherwise, no closed list of factors to be taken into account. A
relevant factor is the time it took the party seeking
the relief to
launch the application to make the settlement or award an order of
court. The Labour Court may, for example, be more
reluctant to make
an award for reinstatement of employees an order of court where the
employees unreasonably delayed in seeking
the enforcement of the
award, yet a delay in years in seeking to make an award for payment a
sum of money may not be grounds for
refusing to make the award an
order of Court. Finally and most crucially it must be remembered that
the purpose of making an agreement
or award an order of the Labour
Court is to compel its enforcement, or enable its execution and not
for some other purpose.’
[3]
[Footnotes omitted]
[8]
Section 158(1A) of the LRA provides as follows:
‘
For
the purposes of subsection (1)(c), a settlement agreement is a
written agreement in settlement of a dispute that a party has
the
right to refer to arbitration or to the Labour Court, excluding a
dispute that a party is only entitled to refer to arbitration
in
terms of section 22(4), 74(4) or 75(7).’
[9]
In this matter, the settlement agreement relates to a dispute that
was referred to
the CCMA in terms of section 22(4). In view of
section 158(1A) and the LAC judgment in the case of
South
African Post office Ltd,
[4]
the applicant’s application to make the settlement agreement an
order of court cannot succeed because it is a matter that
cannot be
referred to arbitration as the applicant is seeking to exercise its
organisational rights. With regard to costs, I am
of the opinion that
the requirements of law and fairness dictate that there should be no
order as to costs.
[10]
In the circumstances, I make the following order:
Order
1.
The application for an order to make a settlement agreement issued by
the CCMA
under case number
GAJB2054-16
an
order of the court is dismissed.
2.
There is no order as to costs.
______________________
D.
Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant Advocate
G.Z Maphanga
Instructed
by: Mafauya
Attorneys
For
the Respondent Advocate
F. Venter
Instructed
by: Cowan-Harper
Attorneys
[1]
Act 66 of 1995 as amended.
[2]
[2013]
12 BLLR 1203 (LAC).
[3]
At
paras 21-22.
[4]
Supra
n 2.