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[2019] ZALCJHB 235
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Bidair Services (Pty) Ltd v Makgoba NO and Others (JR2413/16) [2019] ZALCJHB 235; (2020) 41 ILJ 169 (LC) (1 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE
NO: JR2413/16
In the matter between:
BIDAIR
SERVICES (PTY) LTD
Applicant
and
COMMISSIONER
ALBERT MAKGOBA N.O.
First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
AMCU
obo MEMBERS
Third
Respondent
Heard: 31 July 2019
Judgment
delivered: 1 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by first respondent,
to whom I shall refer as ‘the
commissioner’. The award was issued consequent on the referral
of a dispute by the third
respondent (the union) in March 2016
characterised as one concerning organisational rights. The remedy
sought is ‘
That the Commissioner
be appointed to assist parties to conclusion of the Recognition
Agreement
’. In his award,
the commissioner found that the union was the most representative
union at the applicant’s workplace
in all four of what are
referred to variously as its divisions or departments (grooming
services, ramp handling services, passenger
handling services and
executive concierge) and that the applicant should engage the union
to conclude a collective agreement in
terms of s 20 of the LRA that
covers ‘the entire departments’ (sic).
[2]
The context in which the dispute was referred to arbitration is set
out in the award.
The evidence by the union’s witness, the
deputy president of the union, confirmed that the applicant’s
business comprised
four departments and that the union enjoyed all
the organisational rights in terms of sections 12 to 16 of the LRA in
respect of
all of all four departments. What the union sought to do
was to enter into a single ‘collective/recognition agreement’
with the applicant to cover all four departments. The applicant’s
attitude, conveyed through its witnesses, was that each
of the
departments were independent entities and that any
collective/recognition agreements should appropriately be entered
into
with each department.
[3]
In his award, the commissioner recorded that it was common cause that
the union enjoys
all of the rights enshrined by sections 12 to 16 of
the LRA and that union sought to conclude a collective/recognition
agreement
with respondent. He noted that the union was the most
representative union, and it was the only union that qualified to
negotiate
wages and conditions of employment with the applicant.
[4]
The commissioner came to the following conclusion:
[63]
The applicant is the most representative union at the respondent
workplace in all four departments,
and the respondent should engage
the applicant to conclude collective/agreement in terms of section 20
of the LRA, that covers
the entire departments
.
[5]
When the present matter was called, I enquired from counsel whether
the CCMA had jurisdiction
to consider the dispute referred to it. I
did so on the basis that it seemed to me, on the papers, that the
parties (and the commissioner)
had confused the concepts of a
‘workplace’ for the purposes of a union acquiring
organisational rights, and the concept
of a ‘bargaining unit’
for the purposes of collective bargaining. In essence, it seemed to
me that the dispute between
the parties was in reality a dispute
about the determination of the bargaining unit for the purposes of
the recognition of the
union as a collective bargaining agent.
[6]
There are a number of indications that what the union sought to be
determined by way
of arbitration was to have the arbitrator rule that
the universe for which it should be recognised for collective
bargaining purposes
comprised a single unit encompassing all four of
the applicant’s departments. The first is the terms in which
the dispute
was referred to the CCMA – what the union sought
was the CCMA’s assistance in concluding a recognition
agreement. Prior
to the referral of the dispute to arbitration, it is
apparent from the papers that the parties were engaged in discussions
on what
was termed the ‘recognition’ of the union by
certain of the departments that comprise the applicant. For example,
the
terms of a draft agreement compiled in November 2015 in respect
of the ramp handling department, for example, propose that the
department recognise the union as the representative of its members
in relation to ‘all employment matters’. Further,
the
applicant agreed to recognise the union as entitled to represent its
members in order to negotiate wages and conditions of
employment of
those employees in a defined ‘bargaining unit’. The draft
agreement further contemplated the tabling
of demands by the union in
relation to matters of mutual interest, and then a process of
negotiation between the parties on the
basis of those demands.
Further provision was made for the election of shop stewards,
time-off for shop stewards, access to workplaces
and training for
shop stewards. The ramp handling division ultimately recognised the
union and entered into wage negotiations with
it in respect of that
division.
[7]
The heads of argument filed by the parties in the proceedings under
review are also
instructive as to the nature of the dispute. The
union’s heads of argument, for example, record that the
applicant refuses
to grant organisational rights and\or to enter into
a recognition agreement that encompasses the entire company, to
include all
of its various departments. The applicant’s heads
of argument assert that the issue that commissioner is required to
decide
is whether the applicant’s departments constitute a
single workplace, and whether any recognition agreement should be
concluded
between the union and each department, or with the entire
organisation. Further, there is evidence in the form of a letter
addressed
by the union to the applicant prior to the arbitration in
which the union demands the completion of verification exercises and
that a recognition agreement be concluded by May 2016. After the
award was issued, the union addressed a further letter to the
applicant contending that consequent on the award, it was obliged to
withdraw from the contract cleaning bargaining council on the
basis
that the union’s members’ salaries and conditions of
employment should not be determined at that level. In the
answering
affidavit, the union avers that what it seeks is a ‘common
recognition agreement’ in respect of the four
departments in
dispute. The union avers further that it is in the majority, enjoys
all of the organisational rights and therefore
‘has an
advantage of negotiating wages and conditions of employment, the
Applicant is unreasonably withholding this benefit
and advantage.’
In short, the dispute referred to arbitration was one in which the
union sought to be recognised for collective
bargaining purposes
beyond the ramp handling division to a single unit comprising all of
the applicant’s divisions.
[8]
After some debate, I understood both parties to agree that this was
indeed so. In
other words, the dispute between the parties is one
that s 64(2) of the LRA refers to as a dispute that concerns a
refusal to bargain,
in the form of a dispute about a refusal to
recognise a trade union as a collective bargaining agent and/or a
dispute about the
definition of an appropriate bargaining unit. It
should be recalled that the basic structure of the LRA is one that
does not impose
a duty to bargain. Rather, the constitutional right
to engage in collective bargaining finds expression in a strong set
of organisational
rights (those referred to in sections 12 to 16 of
the LRA) and the right to strike in support of a demand that a party
be recognised
as a collective bargaining agent, or any other element
of what the LRA defines as a refusal to bargain. If the conceptual
integrity
of this structure is to be maintained (as it must), then
commissioners (and judges) must be cautious not to confuse what are
two
discrete concepts and thus run the risk of imposing a duty to
bargain. The structure of the LRA is one in which commissioners and
judges have no role in determining whether one party should bargain
collectively with another, the subject matter of any collective
bargaining, the level at which bargaining should be conducted, or the
identity of any bargaining partner.
[9]
In summary: the true nature of the dispute between the parties is one
that is contemplated
by s 64(2) and thus a dispute that does not fall
to be determined by arbitration, except by way of the advisory
arbitration procedure
referred to in s 64(2). It follows that the
CCMA had no jurisdiction to issue an arbitration award in the present
circumstances
and on that basis, the award stands be reviewed and set
aside.
[10]
Adv. Cook, who appeared for the union, urged me to find that there
were two components to the
dispute before the arbitrator, the first
of which concerned the exercise of organisational rights, and the
second the definition
of a bargaining unit for collective bargaining
purposes. He submitted that although the commissioner clearly had no
jurisdiction
in respect of the latter, his determination of the
dispute in respect of the exercise of organisational rights should be
allowed
to stand. I am not persuaded that the award under review
should be partially upheld on this basis. First, it is clear to me
from
the papers that the parties (who were represented at the hearing
by laypersons) had confused organisational rights and the right
to
bargain collectively and the manner in which each was to be
exercised. It would be difficult, if not impossible, to unscramble
the egg at this late stage and discern which elements of the award
ought to be upheld and on what basis. Secondly, to the extent
that it
was contended that at least an element of the dispute concerned the
exercise of statutory organisational rights and the
definition of a
‘workplace’ for that purpose, it is not in dispute that
the union already enjoys all of the statutory
organisational rights
in respect of each of the departments that make up the applicant. The
union’s dispute cannot therefore
be one that it has been denied
any organisational rights that it demands - it has been accorded all
of the statutory rights in
respect of all of the applicant’s
departments. In those circumstances, I fail to appreciate what the
union seeks to achieve
by having the court uphold a definition of
workplace that incorporates all four of the departments that make up
the entity that
constitutes the applicant. Counsel was unable to
point to any tangible advantage that the union might secure should
the award be
partially upheld on this basis. Finally, it is not clear
to me that all of the procedural requirements established by s 21 of
the
LRA, which regulates the enforcement of statutory organisational
rights, were met prior to the referral of the dispute to the CCMA.
For these reasons, the award ought to be set aside in its entirety.
[11]
Finally, the parties were agreed that this is a matter in which no
order for costs would be appropriate.
I agree that for the purposes
of s 162 of the LRA, the interests of the law and fairness are best
served by each party bearing
its own costs.
I make
the following order:
1.
The arbitration award issued by the first
respondent on 10 October 2016 under case number GAEK 2898-16 is
reviewed and set aside.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. L Hutchison instructed by Moodie & Robertson
For the respondent: Adv.
A L Cook instructed by Larry Dave Inc