About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 180
|
|
National Tertiary Education Union v Tshwane University of Technology and Another (J1500/19) [2019] ZALCJHB 180 (3 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1500/19
In
the matter between:
NATIONAL
TERTIARY EDUCATION UNION
Applicant
and
TSHWANE
UNIVERSITY OF TECHNOLOGY
NATIONAL
EDUCATION HEALTH AND
ALLIED
WORKERS UNION
First
Respondent
Second
Respondent
Heard:
03 July 2019
Delivered:
03 July 2019
EX-TEMPORE
JUDGMENT
CELE,
J
Introduction.
[1]
The
application before me is one brought on an urgent basis where the
applicant seeks an order in terms of section 158(1)(a) of
the Labour
Relations Act
[1]
(the LRA) in
the following terms:
‘
1.
That the first respondent’s notice regarding the applicant’s
membership
of the Tshwane University of Technology Bargaining Forum
(TUTBF) dated 8 April 2019 be suspended and the applicant be allowed
to
remain a member of the said bargaining forum, pending the steps
set out in prayer 3 and 4 below and the outcome thereof.
2.
That the council of the first respondent be ordered to concede a
ratification
of an agreement reached at the said forum on 14 March
2019 and to do so at its next meeting.
3.
That should the first respondent’s council fail to ratify the
agreement
as aforesaid, the applicant will within the working days’
institute a dispute procedure provided for in clause 14 of the
recognition and procedural agreement dated 21 February 2013.
4.
Costs of the application only in the event of opposition which costs
are to be
paid jointly and severally, the one paying the other to be
absolved in the event of opposition by both the respondents opposing
the application.’
[2]
This application has been opposed by both respondents.
Background
[3]
The first
respondent is the Tshwane University of Technology (TUT). It is
a registered tertiary institution in terms of the
Higher Education
Act
[2]
(HEA) with its principal
place of business situated at Staatsartillerie Road, Pretoria.
[4]
There are trade unions that operate within the first respondent.
These include the second respondent, which has for some time been the
majoritarian union, the applicant and NUMSA. The applicant
for
some time had a membership which went beyond 30% plus 1.
Currently it has dropped to about 26.9%. NUMSA has a membership
which is in the region of about 20%. The university and the
unions have formed a bargaining forum (TUTBF). Both respondents
and the applicant are members of this forum.
[5]
The threshold that was in existence for some time, has been that a
union
had to have a minimum of 30% plus 1. In this respect then
the second respondent was the majority union. However, it
would
seem that gaining membership in this institution is fairly difficult,
because it remains common cause that the second respondent’s
membership dropped, just as it has happened for the applicant, to a
percentage below 30% plus 1.
[6]
For this reason, the members of the bargaining forum held a meeting
on
14 March and amongst others, discussed the threshold and agreed
that there was to be a proposal to be made to council, which proposal
would then recognise the difficulty of having membership by the
unions, to then drop the threshold to 25% plus 1.
[7]
Both respondents and the applicant participated in the meeting of 14
March
2019. It appears that at the meeting it was resolved to
have the threshold lowered, but the second respondent only agreed,
subject to this being confirmed by its members. A follow up
meeting was planned for 18 April 2019. However, it would seem
that
from the events of this meeting the applicant may have been alerted
to the fact that there might be difficulties about the
agreement
coming to fruition.
[8]
What then happened on 8 April 2019, the HR director of the first
applicant
issued a notice to the applicant to indicate to it that it
had observed that its membership had dropped to a percentage lower
than
30% plus 1, and it had three months to regain the threshold,
failing which it would lose its membership.
[9]
The applicant was not bothered so much about this notice, because it
had
assumed that the new agreement would take effect. It
assumed further even though the HR director had written this notice,
the notice would be overtaken by the ratification of the agreement by
council. However, when NUMSA came to know about the
lowering of
the threshold, it lodged an objection around 18 June 2019. Apparently
the applicant was notified about this.
[10]
When preparing the agenda for the meeting of council on 21 June, Exco
realised that there
were objections to the lowering of the threshold.
It then remitted the matter to the bargaining forum for further
discussions in
order to give a reason why there was a need to drop
the threshold. I do not quite understand the rationale for
remitting
the matter to the bargaining forum. If one has a look at
the institutional rules on recognition and threshold for
representativeness
by unions, there is an objective that was to be
achieved. It is not clear if that objective fell short of giving the
rationale
or the reason why there was to be a drop in the threshold.
[11]
Be that as it may, the proposed agreement did not see the light of
day as it could not
be debated or presented to council, therefore it
was not ratified. In law what this effectively means is that
the status
quo remained as it was. That meant that the applicant had
failed to reach the set threshold. The applicant feels that it has
been
prejudiced by the attitude of the executive in failing to
present the proposed agreement to lower the threshold for
ratificatio,
because if this had been done, then that event would
have overtaken the three months’ period consequent to the
notice given
b the HR Director.
[12]
However, the applicant’s approach in this respect seems to have
made a number of
presumptions. Firstly, it brings an
application to this Court on an urgent basis and therefore has to
demonstrate that the
matter is indeed urgent, and yet it knew as far
back as 8 March 2019 that its membership was under attack.
[13]
Even though the applicant has submitted to Court that it assumed that
the right hand did
not know what the left hand was doing in relation
to the first respondent, from the deliberations I had with Mr
Ackerman, it would
seem that the right hand very well knew what the
left hand was doing. The HR Director knew what the University was
doing The HR
Director took part and went to all of these meetings
with the applicant. The applicant failed to immediately challenge the
notice,
seeing that the time was slowly running out for it. The
applicant therefore lost the first opportunity to attack this notice
as early as April. It allowed the time to go.
[14]
I assume that urgency exists today, because the three month period is
about to lapse. This
is self-created urgency. Come next week, if the
applicant is not rescued by this Court through the order that it
seeks, it will
cease to be a member of the forum. I am alive to the
fact that this will not be the first time, if it will happen, that it
is going
to lose representability.
[15]
When considering the dispute resolution measures that are in place,
it would appear that
the applicant has an alternative relief that it
could but did not resort to. I think it was an effective alternative
relief that
was open to the applicant. It now seeks an
intervention from this Court to give it time to revert to these
remedies, but
they were always available to it.
[16]
In my view, the applicant has failed to sufficiently demonstrate to
this court that this
application is urgent. When I deliberated this
matter with Mr Ackerman, I asked, even if the applicant saw that
there was potentially
a new agreement in its favour, in the event
that it did not materialise, why there was no alternative plan, the
plan B. I do not
know really what Mr Ackerman said plan B was, but it
seems he thought there was no need for plan B. However, there
was a
need for it, because the clock was ticking. There was a dispute
resolution mechanism that should have been resorted to; and in my
view, it would have been effective and sufficient enough.
[17]
On the basis of urgency alone the Court cannot come to the assistance
of those who sleep
on their rights, which is what the applicant did.
I find that this application is not properly before me and the
application should
accordingly be struck off the roll with no order
as to costs.
[18]
In the premises the following order is made:
Order
The
urgent application is struck off the roll for lack of urgency.
There
is no order as to costs.
____________________
H. Cele
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate M. F. Ackermann
Instructed
by:
Len Dekker Attorneys Inc
For
the Respondent: Advocate A. Mosam SC and K. Naidoo
Instructed
by:
Zarina Walele Attorneys
[1]
Act 66 of 1995, as amended.
[2]
Act 101 of 1997.