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[2019] ZALCJHB 108
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Association of Mineworkers and Construction Union v UASA the Union and Others (J1250/2018) [2019] ZALCJHB 108 (3 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No:J 1250/2018
In the matter between:
ASSOCIATION OF
MINEWORKERS AND
CONSTRUCTION
UNION Applicant
and
UASA THE
UNION
First
Respondent
SOLIDARITY
Second
Respondent
NATIONAL UNION OF
MINEWORKERS Third
Respondent
WESTERN PLATINUM (PTY)
LTD Fourth
Respondent
EASTERN PLATINUM (PTY)
LTD Fifth
Respondent
THE COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION Sixth
Respondent
COMMISSIONER E
HAMBRIDGE N O Seventh
Respondent
Heard:
26 March 2019
Delivered:
3 April 2019
Summary: Urgent
application to review arbitrator’s award in respect of a
dispute concerning organisational rights.
JUDGMENT
GUSH, J
[1]
The applicant in this matter seeks an order
to review the award of the seventh respondent (the arbitrator) in
which award the seventh
respondent granted organizational rights to
the first second and third respondents and determined the manner in
which these organizational
rights were to be implemented.
[2]
The matter was first enrolled as an urgent
application on 13 December 2018 at which stage the presiding judge
struck the matter
from the roll due to lack of urgency; ordered that
the costs were to be costs in the review and set the matter down to
be heard
on 26 March 2019.
[3]
The fourth to sixth respondents did not
oppose the application. I shall refer to the fourth and fifth
respondent collectively as
“Lonmin”.
[4]
In its notice of motion, the applicants
sought an order firstly reviewing and setting aside the seventh
respondents arbitration
award; alternatively referring the matter
back for determination
de novo
and
secondly staying the execution and enforcement of the award pending
the outcome of the review application.
[5]
Regarding the first part of the order, the
parties agreed that in the event the Court should find that the award
was reviewable,
the dispute was to be referred back to the sixth
respondent to be heard by a Commissioner other than the seventh
respondent (arbitrator)
and not simply be set aside.
[6]
As far as the second part of the order was
concerned, I indicated to the parties that I would expedite the
judgment so as to obviate
the necessity for argument regarding
whether the execution or enforcement of the award should be stayed.
[7]
Despite
the voluminous record and bundles of documents, the issue in question
is relatively straightforward. The pertinent background
to the
application is that the first, second and third respondents, all
registered trade unions, together as a coalition notified
Lonmin that
they sought to exercise the organizational rights as set out in
sections 12, 13 and 15 of the Labour Relations Act
(the Act).
[1]
I shall refer to the first, second and third respondents as “the
coalition”. All these unions had previously enjoyed
a measure
of recognition by Lonmin. Lonmin had terminated its collective
agreements with the coalition and this had led to the
section 21
notification by the coalition that it was seeking to exercise the
above organizational rights.
[8]
These sections deal with “trade union
access to the workplace” (s12); “deduction of trade union
subscriptions
or levies” (s13) and “leave for trade union
activities” (s15). The parties were unable to resolve the issue
and
the sixth respondent appointed the seventh respondent at the
request of “the coalition” to arbitrate and determine the
dispute.
[9]
At the arbitration, the request for
organizational rights by the coalition was opposed by both Lonmin and
the applicant in this
matter.
[10]
Prior to the commencement of the
arbitration, the parties entered into a pre-arbitration agreement and
recorded the agreement in
a minute. In this minute, the parties
specifically agreed that for purposes of the arbitration that
commenced on 18 October 2018,
the membership of the coalition was
determined agreed and recorded in the minute. In particular, it was
specifically agreed between
the parties that the membership figures
as at 31 October 2017 would be accepted for the purposes of the
arbitration.
[11]
The seventh respondent in her award
concluded that the Coalition had established that it represented a
“substantial number
of employees in the workplace, who fall
within categories C and D. This is especially so relative to the
number of employees in
those categories are represented by [the
Applicant].
[12]
The first ground of review raised by the
applicant relates to the acceptance by the seventh respondent that
the workplace consists
of “Eastern Platinum Limited and Western
Platinum Limited (the Marikana Operations) which excludes its Limpopo
operations
and the Brakpan Refinery.” The applicant argued that
“the workplace” did not include those workers employed in
the C and D bands.
[13]
The
Act specifically provides that “the trade union or trade unions
acting jointly” wishing to exercise organizational
rights must
give notice of this intention in respect of a “workplace”.
[2]
A “workplace” is defined in the Act as “the place
or places where the employees of an employer work”.
[3]
Despite the applicant’s argument before this Court, it is clear
from the documentation that at the time the matter was arbitrated,
the seventh respondent directly recorded what comprises the workplace
for the purposes of the arbitration.
[14]
The
second ground of review dealt with the applicant’s contention
that the arbitrator had erroneously relied on and had misapplied
the
test set out in the matter of
McDonald’s
Transport Upington (Pty) Ltd v AMCU and Others
[4]
.
The essence of the applicants second ground of review, however, was
based on the averment that the arbitrator had relied on the
membership of the coalition as at 31 October 2017 and had not taken
into account the Constitutions of the members of the coalition
that
provided that members who did not pay their subscription fees would
cease to be members of that union.
[15]
Mr. Franklin, on behalf the coalition,
argued that on a strict interpretation of the Constitution of each of
the members of the
coalition, it was not an inescapable conclusion
that the membership of each member of the Coalition had been reduced
by the number
of members who had not paid their subscriptions.
[16]
Both parties however appeared to lose
sight of the fact that in preparation for the arbitration and “
for
the purposes of the arbitration
”
they had expressly agreed that the membership numbers of both the
coalition and the applicant and had recorded those numbers
in the
agreed minute.
[17]
I am satisfied in those circumstances that
the arbitrator was entitled to take into account the employment
figures the parties had
agreed on for the purposes of determining the
dispute. It would make no sense for the parties to agree on the
membership figures,
place that agreement before the arbitrator and
then seek to deviate from it by disputing what they had expressly
agreed. It might
well have been a different proposition had the
either party disputed the number of members.
[18]
I
am satisfied that the arbitrator, in the circumstances, properly
dealt with the challenge raised by the applicant in respect to
the
figures and that this ground of review is without merit. The
arbitrator’s application of the
McDonald
[5]
judgment does not alter the relevance or importance of the agreement
the parties reached prior to the commencement of the arbitration
expressly
for
the purposes of the arbitration
.
[19]
The applicant’s third ground of
review is based on an averment that the arbitrator did not take into
account the provisions
of section 21(8)(b)(iv), viz “the
organizational history at the workplace or any other workplace of the
employer”.
Mr Hollander who appeared for the applicant
correctly in my view did not pursue this ground in argument. It is
clear from the award
and the substantial documentation placed before
the seventh respondent that she had taken into account all the
background information
which included the organizational history at
Lonmin’s workplace.
[20]
The applicant’s fourth and final
ground of review was based on an averment that the arbitrator
misunderstood the significance
of the number of employees and the
categories into which they fell as recorded in the pre arbitration
minute. This ground of review
is similar to the first ground of
review argued by the applicant. It is premised not only on the
applicant’s misunderstanding
of what constitutes a workplace,
but also the applicant’s apparent disregard of the
agreement reached concerning the
number of employees represented in
the various categories as set out in the pre-arbitration minute.
There is no doubt that the
arbitrator concluded, based on the figures
contained in the pre-arbitration minute, that the coalition had
succeeded in establishing
that it represented a substantial number of
employees within the workplace albeit specifically within categories
C and D.
[21]
In
2014, the Act was amended by the inclusion of section 21(8C). This
section specifically grants the arbitrator appointed to determine
a
dispute over organizational rights, to grant “the rights
referred to in sections 12, 13, or 15 to a registered trade union
or,
two or more registered trade unions acting jointly, that does not
meet thresholds of representativeness established by a collective
agreement …”
[6]
[22]
This confers upon the arbitrator a
discretion. In exercising her discretion in terms of this section,
the arbitrator properly and
in compliance with this section took into
account the rules of interpretation in considering the extent of her
discretion and has
set out clearly the basis upon which she exercised
that discretion in her award.
[23]
At
the outset the applicant confirmed that it relied upon section 145 of
the Act in seeking to review the seventh respondent’s
award.
The test on review has been repeatedly set out by the courts. In
Goldfields
Mining South Africa (Pty) Ltd (Kloof) Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
[7]
the Labour Appeal Court (LAC) held:
‘
[17]
In short: A review court must ascertain whether the arbitrator
considered the principal issue before
him/her; evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decisions he
or she arrived at.
[20]
…The questions to ask are these: (i) In terms of his or her
duty to deal with the matter
with the minimum of legal formalities,
did the process that the arbitrator employed give the parties a full
opportunity to have
their say in respect of the dispute? (ii) Did the
arbitrator identify the dispute he was required to arbitrate (this
may in certain
cases only become clear after both parties have led
their evidence)? (iii) Did the arbitrator understand the nature of
the dispute
he or she was required to arbitrate? (iv) Did he or she
deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s
decision one that another decision-maker could
reasonably have arrived at based on the evidence’?
[8]
[24]
Applying the test enunciated by the LAC in
Goldfields it is clear that the arbitrator satisfies all the
requirements. In particular,
the arbitrator was required to exercise
her discretion and to do so reasonably. In order to find that the
arbitrator’s award
is reviewable, it would be necessary to show
that she exercised her discretion capriciously, in a manner amounting
to misconduct
or gross irregularity. I am not persuaded that the
applicant has established that the arbitrator in this matter did so.
[25]
The arbitrator’s conclusion firstly
that the coalition represented a substantial number of employees in
the workplace is eminently
one which another decision-maker could
reasonably have arrived at based on the significant amount of
evidence placed before her.
Secondly, it is abundantly clear that the
arbitrator clearly and substantially understood the nature of the
dispute before her
and the relevant issues she was enjoined by the
Act to consider.
[26]
In the circumstances and for the reasons
set out above, I am not persuaded that the award of the arbitrator is
reviewable.
[27]
There are two distinct parts to the order
granted by the arbitrator. The first finding was that the coalition
represented a substantial
number of employees in the workplace and
was accorded the organizational rights set out in sections 12, 13 and
15 of the Act. The
second part of the order concerned the manner in
which these organizational rights were to be implemented. Counsel for
the applicant
indicated that the applicant had not challenged this
part of the order in its review. That being so and having found that
the award
of the arbitrator is not reviewable; there is no need for
this Court to deal with this issue.
[28]
As far as costs are concerned, the parties
agreed that it was not necessary to deal with the issue of costs
separately and in any
event the order of Mabaso AJ made it clear that
the costs, when the original urgent application was struck from the
roll, were
to be “costs in the review”. Given the nature
of the dispute and the on-going relationship between the parties. I
am
of the view that an order for costs would be inappropriate.
[29]
I therefore make the following order:
Order
1. The applicant’s
application is dismissed;
2.
There is no order as to costs.
D
H Gush
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Advocate
L Hollander
Instructed
by: LDA
Attorneys
For the
Respondent: Advocate
A Franklin SC
Instructed
by: Bester
and Rhoodie Attorneys
[1]
Act 66 of 1995 as amended.
[2]
See: section 21 of the Act.
[3]
See: Section 213 of the Act.
[4]
(2016) 37 ILJ 2593 (LAC).
[5]
Id
n 4.
[6]
Section 21(8 ((a) –(c) of the Act
[7]
[2014]
1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC).
[8]
The
Sidumo
test.