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[2019] ZALCJHB 240
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Independent Municipal and Allied Trade Union (IMATU) v South African Local Government Bargaining Council and Others (JR2462/18) [2019] ZALCJHB 240 (12 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR2462/18
In
the matter between:
INDEPENDENT MUNICIPAL
& ALLIED
TRADE
UNION (IMATU)
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
LORRAINE
MARTIN N.
O Second
Respondent
MUNICIPAL
AND ALLIED TRADE UNION
OF
SOUTH AFRICA
(MATUSA) Third
Respondent
SOUTH
AFRICAN MUNICIPAL WORKERS’
UNION
(SAMWU) Fourth
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
ASSOCIATION
(SALGA) Fifth
Respondent
MATJHABENG
LOCAL MUNICIPALITY
Sixth Respondent
Heard
:
10 September 2019
Delivered
:
12 September 2019
Summary:
Union rivalry - right to represent members at disciplinary
hearings is not a right that can be usurped using collective
bargaining.
It is a right consonant with the right to join a trade
union and freedom of association. Interpretation of a collective
agreement
must be one that is consistent with the Constitutional
rights. Any interpretation that does not impair the rights entrenched
in
the Bill of Rights is to be favoured. Held: (1) The application
for review is dismissed. (2) No order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
One of the
objectives that a commissioner dealing with a dispute about
organisational rights seeks to achieve is to minimise the
proliferation of trade union representation in a single workplace and
where possible to encourage a system of a representative
trade union
in a workplace.
[1]
The Labour
Relations Act
[2]
(LRA) is based
on majoritarian principle. There is no doubt that the Local
Government sector is continually suffering a proliferation
of trade
unions, an act inimical to the majoritarian principle. This case is a
perfect example of trade unions fighting for turf.
Before me is a
review application in terms of which, the applicant trade union
(IMATU) seeks to review and set aside an award issued
by the second
respondent under the provisions of section 24 of the LRA. The
application for some unclear reasons stands unopposed
[3]
.
Background
facts
[2]
On February
2018 and at the South African Local Bargaining Council (SALGBC) a
collective agreement (known as Disciplinary Procedure
(DP) was
concluded between the South African Local Government Association
(SALGA); Independent Municipal and Allied Trade Union
(IMATU) and
South African Municipal Workers Union (SAMWU). Suffice to mention
that these parties to the collective agreement are
members of the
SALGBC. A dispute arose with regard to the interpretation and
application of clause 15 of the DP. A non-party, MATUSA,
on 6 August
2018 referred the dispute to the SALGBC. The second respondent was
appointed to resolve the dispute through arbitration.
In the
referral, MATUSA did not join IMATU; SAMWU and SALGA to the dispute.
A joinder application was brought by MATUSA but was
turned down by
the second respondent on 28 August 2018
[4]
.
[3]
Subsequent
thereto, an arbitration process was undertaken on or about 18
September 2018. The parties to the arbitration proceedings
was MATUSA
on behalf of its three members and the sixth respondent, the
Municipality. What ignited the dispute was that MATUSA
was denied
representation of its members at a disciplinary hearing after the
coming into effect of the DP. On or about 1 October
2018, the second
respondent issued an award allowing the members of MATUSA to be
represented by it at the disciplinary hearing
[5]
.
Aggrieved by the award, on 19 November 2018, IMATU launched the
present application. As pointed out above, the application stands
unopposed.
Grounds
of review
[4]
It is apparent from the founding papers that the applicant raises an
error
of law and excess of power as grounds for review. In a
supplementary affidavit, the applicant added as grounds of review
non-joinder,
extension in terms of section 32 of the LRA, absence of
jurisdiction, wrong interpretation of a Constitutional Court
judgment.
Evaluation
[5]
The first
issue to be addressed is whether this Court has jurisdiction to
entertain a review application brought by a non-party
to the dispute.
In its founding papers, the applicant alleged that this application
is brought in terms of section 145 of the LRA
[6]
.
[6]
Section 145 of the LRA provides thus:
“
Any
party to a
dispute
who alleges a defect in any arbitration award
proceedings…may apply to the Labour Court for an order setting
aside the arbitration
award…”
[7]
It is clear to me that only parties to a dispute may approach this
Court
for an order setting aside any arbitration award proceedings.
The applicant before me never attempted to become a party to the
dispute. It was only MATUSA who attempted and failed to join the
applicant and others. It must follow that the applicant before
me
lacks the necessary
locus standi
to challenge the award issued
by the second respondent. On this basis alone, this Court lacks
jurisdiction and must dismiss the
application for want of
jurisdiction. The applicant for some unexplained reasons failed to
attack the ruling allegedly made on
28 August 2018.
[8]
This Court in terms of section 158(1)(g) is empowered to review the
performance
or purported performance of any function provided for in
the Act on any grounds that are permissible in law. Instead, the
applicant
supplemented its grounds by mentioning how wrong and
unreasonable was the ruling made against MATUSA. This, in my view,
the applicant
cannot do. Yet again, it was not a party to the dispute
that led to the ruling that is considered by it to be unreasonable
and
erroneous. The ruling was made on 28 August 2018 and has not been
attacked by MATUSA, being the affected party. It can only follow
that
MATUSA somewhat perempted its right of review of the ruling. Advocate
Van der Westhuizen, appearing for the applicant submitted
that the
applicant did attack the ruling. I disagree. In the notice of motion
presented in support of this application no reference
is made to the
ruling of 28 August 2018. Only the award allowing MATUSA to represent
its members is being attacked, which award
is dated 1 October 2018.
Assuming that I am wrong in the above conclusion, I continue to
consider the merits of the review
before me.
[9]
The role of
an arbitrator in any matter involving interpretation and application
of a collective agreement is to consider an interpretation
of the
collective agreement and/or consider its application
inter
partes
.
I mention in passing though that MATUSA is not a party to the
collective agreement, therefore in my view, it lacked the
locus
standi
to refer a dispute in terms of section 24 of the LRA
[7]
.
This point was not raised nor addressed at the arbitration
proceedings. It does seem to me that the true nature of the dispute
is one of mutual interest – the ‘right’ to
represent members at a disciplinary hearing. However, it is
understood
why the matter ended as being labelled as one involving
interpretation and application of the collective agreement. When
MATUSA
sought to exercise the right of representation, the
Municipality flagged the collective agreement in denying MATUSA the
right.
Properly considered, the application of the collective
agreement to MATUSA and its members became an issue in a dispute as
opposed
to the dispute itself.
[10]
Turning to the merits of the review. As always, the starting block is
the Constitution
of the Republic of South Africa. For the purposes of
this judgment, a good place to start is section 23. In terms of
section 23(2)
every worker has the right to form and join a trade
union. Building on that, it is clear that the right to join a trade
union is
an individual worker right. Allied to this individual worker
right is the right to freedom of association. Yet again, the right
to
associate freely is an individual right. The last place to look at is
section 23(5) which affords every trade union the right
to engage in
collective bargaining. A national legislation may be enacted to
regulate collective bargaining.
[11]
Having established that, the next place to turn to is the LRA,
section 3 commands
that whenever the provisions of the
LRA are to be interpreted there is an obligation to interpret them in
compliance with the Constitution
of the Republic. In expatiation of
the right to freedom of association, section 4 (1)(b) provides that
an employee has the right
to join a trade union subject to its
constitution. Section 213 defines a trade union to mean an
association of employees whose
principal purpose is to regulate
relations between employees and employers. In terms of section 8
(a)(i), a trade union has a right
to determine its own constitution
and rules. Section 23 gives collective agreements legal effect and
force. The LRA provides for
the establishment of Bargaining Councils.
Section 28 (1)(a) and (b) grants the Bargaining Councils powers to:
(a) conclude collective
agreements and (b) to enforce those
collective agreements. Subject to the provisions of section 32 and
the constitution of the
bargaining council, a collective agreement
concluded in a bargaining council binds parties to the bargaining
council who are also
parties to the collective agreement.
[12]
What can be discerned so far is that a collective agreement concluded
in a bargaining council
binds only parties to the bargaining council
who are also parties to the collective agreement. In
casu
the
collective agreement involved is: (a) concluded in the South African
Local Government Bargaining Council (SALGBC) and (b) the
parties
thereto are the SALGA, IMATU and SAMWU. Therefore, it is binding only
on the parties to the council and to the collective
agreement. MATUSA
is not a party to the bargaining council nor a party to the
collective agreement involved herein. In terms of
section 31, this
collective agreement is not binding on MATUSA and its members.
[13]
The only legal manner to bring MATUSA and its members into the
binding fold is by invoking
the provisions of section 32 of the LRA
which provides thus:
‘
32
Extension of collective agreement concluded in bargaining council
(1)
A
bargaining council
may ask the
Minister
in writing to extend
a
collective agreement
concluded in
the
bargaining council
to any non-parties to the
collective
agreement
that are within
its registered scope
and are
identified in the request,
if at a meeting of the
bargaining
council
-
(a)
One or more registered
trade unions
whose members constitute
the majority of the members of the
trade union
that are party
to the
bargaining council
vote in favour of the extension
;
and
(b)
One or more registered
employers’ organisations
, whose
members employ the majority of the employees employed by the members
of the
employers’ organisations
that are party to the
bargaining council
vote in favour of the extension
.’
[14]
A lawful
extension of a collective agreement happens if: (a) there is a
request in writing to the Minister of Labour for an extension
followed by a (b) favourable vote in the bargaining council meeting.
In the absence of the above, a collective agreement cannot
be
lawfully extended, thus non-binding to non-parties. The applicant
contends that section 32 does not apply in the Local Government
sphere. I disagree. The contention is pillared on an incorrect
reading, in my view, of section 71 (3) of the
Local
Government Municipal Systems Act
[8]
(MSA). The section provides thus:
‘
Bargaining
council agreements
71 (3).
Municipalities
must comply
with
any collective agreements
concluded by
organised local government
within its mandate on
behalf of local government in the bargaining council established for
municipalities.’
[15]
This
section properly interpreted simply means that a Municipality has an
obligation to comply with collective agreements concluded
by an
organised local government body in the SALGBC. This implies that even
if a Municipality, as a legal entity, is not a party
to a collective
agreement, a Municipality is obliged to comply and cannot avoid
compliance on the basis of being a non-party to
the collective
agreement. As an example, the Metropolitan City of Tshwane may not
refuse to comply with a collective agreement
concluded in the SALGBC
simply because it is not party to the said collective agreement. The
relevant collective agreements are
to be concluded by an organised
local government, a body established in terms of section 2 of the
Organised
Local
Government Act
[9]
(OLGA).
[16]
On the
contrary, the section is not intended to replace, as it were, the
requirements of section 32 in the Local Government sphere.
The South
African Local Government Association (SALGA) is a body established in
terms of section 2 of OLGA. One of the roles and
mandates of SALGA is
to regulate the relationship between its members and their employees
within the meaning of section 213 of
the LRA
[10]
.
SALGA is a party to SALGBC. In
casu,
the collective agreement was concluded by SALGA. Thus, section 71 (3)
of the MSA finds application in this matter only in so far
as the
sixth respondent not avoiding compliance simply because it is not a
party and or signatory to the DP.
[17]
If it is aimed at replacing section 32, then it is clearly
inconsistent with the peremptory
requirements of section 32. Section
71 (3) of the MSA does not provide for: (a) written extension and (b)
voting in favour in a
meeting of the bargaining council. The DP in
clause 4.2 do recognise the provisions of section 32. Section 210 of
the LRA provides
that if there is any conflict, which conflict this
Court does not observe in the present instance, relating to the
matters dealt
with in the LRA, arises between the LRA and the
provisions of any other law save the Constitution or any Act
expressly amending
the LRA, the provisions of the LRA shall prevail.
For this reason, too, the provisions of section 32 shall prevail. To
that extent,
the Arbitrator was correct in concluding that section 32
of the LRA finds application and its provisions were not met in order
for the terms of the collective agreement to apply to MATUSA and its
members.
[18]
It remains
the objectives of every trade union to protect and promote the
interests of its members, assist members to retain employment
and
provide assistance to its members in matters affecting their
employment. It must be a constitutional objective of MATUSA to
represent its members at disciplinary hearings or matters affecting
the employment of their members. Regard being had to the
Constitutional
imperatives; the first respondent has a right to
represent its members in a disciplinary hearing.
[11]
I already found that the terms of the collective agreement do not
apply to MATUSA and its members.
[19]
However,
recognising the fact that the arbitrator was engaged in duties
contemplated in section 24 of the LRA, this Court must amongst
others
have regard to the question whether she performed her task in a
manner consistent with the Constitution of the Republic
and the LRA.
Some of the rights implicated in the process were, the right to join
a trade union and the right to freedom of association.
Section 39(1)
of the Constitution, enjoined the arbitrator to, when interpreting
the implicated rights in this matter, promote
the values that
underlie an open and democratic society based on human dignity,
equality and freedom and to consider international
law. Therefore,
reliance on
NUMSA
v Bader Bop (Pty) Ltd and Another
[12]
cannot be faulted.
[20]
The Constitutional Court in
Bader Bop
supra
expressly
held as follows:
‘
[34]
Of importance to the case in the ILO jurisprudence described is
firstly the principle that freedom
of association is ordinarily
interpreted to afford trade unions the right to recruit members and
to represent those members at least in individual workplace
grievances
…The first principle is closely related to the
principle of freedom of association entrenched in section 18 of our
Constitution,
which is given specific content in the right to form
and join a trade union entrenched in section 23(2)(a), and the right
of trade
unions to organise in section 23(4)(b).
These rights will
be impaired where workers are not permitted to have their union
represent them in workplace disciplinary and grievance
matters, but
be required to be represented by a rival union that they have chosen
not to join…
[36]
Taking these two principles together…would suggest that a
reading of the Act which permitted
minority unions the right to
strike…for the purposes of the representation of union members
in grievances and disciplinary
procedures
would
be more in accordance with the principle of freedom of association
entrenched in the ILO Conventions.
[13]
[37]
…If it is capable of a broader interpretation that does not
limit the fundamental rights,
the interpretation should be
preferred.’
[21]
The
arbitrator preferred an interpretation that shall not impair the
fundamental rights of MATUSA and its members. Such an interpretation
cannot be faulted by a court of review. Recognising that before me
there is no application to declare the provisions of the collective
agreement to be invalid, this Court is not in a position to declare
that any of the provisions are invalid and unenforceable in
law. I
disagree with a submission that the arbitrator has declared the DP or
its contentious clauses to be unlawful and as a result,
she treaded
on a territory she is not empowered to. Her conclusion was simply
that the DP cannot be applied to MATUSA and its members.
It is trite
that no law may limit any right entrenched in the Bill of Rights. Any
interpretation other than the one adopted by
the arbitrator in this
instance would impair the fundamental rights of MATUSA and its
members. The applicant placed reliance on
the judgment of this Court
in
Solidarity
v SAPS and others
[14]
.
This
judgment is distinguishable to the present matter. In the first
instance, in
Solidarity
,
the applicant by-passed the provisions of the LRA and placed direct
reliance on the Bill of Rights. In
casu
,
the second respondent, as she was entitled to, interpreted or
established the application of the collective agreement, a task,
she
was authorised by section 24 of the LRA, to perform, within the
spirit and purport of the Constitution of the Republic. Therefore,
for all the above reasons, the application for review is bound to
fail.
[22]
In the results, the following order is made:
Order
1.
The
application for review is dismissed.
2. There is
no order as to costs.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
: Advocate G Van der Westhuizen
Instructed
by :
Savage Jooste & Adams Inc, Pretoria.
For
the Respondents : No
appearance
[1]
Section 21(8)(a) of the LRA.
[2]
Act 66 of 1995, as amended.
[3]
I was advised by the applicant’s counsel that MATUSA attempted
to oppose but later withdrew.
[4]
I point out that a ruling refusing the joinder has not been attacked
and is not before me.
[5]
This Court has not been told whether the hearings did take place and
whether they were finalised at the time this Court heard
the matter.
Given the fact that the award was issued in October 2018, this Court
can safely assume that MATUSA and its members
have already reaped
the benefits of the award. Thus as an added string to the bow, this
review may have become moot.
[6]
10 This is an application in terms of section 145 of the LRA…
(paragraph 10 of the Founding Affidavit.
[7]
Arends
and others v SALGBC
[2013] BLLR 4
(LC) and
[2015] 1 BLLR 23
(LAC).
[8]
Act 32 0f 2000.
[9]
Act 52 of 1997.
[10]
Article 3.11 of the constitution of SALGA.
[11]
Recently the Constitutional Court in
AMCU
and others v Chamber of Mines and others
CCT 87/1 delivered on 21 February 2017 held that the majoritarian
system must allow minority unions to co-exist, to organise
members,
to represent members in relation to individual grievances and to
seek to challenge majority unions. (at para 2)
[12]
2003 (3) SA 513 (CC).
[13]
My own underlining and emphasis.
[14]
[2019] 40 ILJ 448 (LC).