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[2019] ZALCCT 1
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National Bargaining Council for the Road Freight and Logistics Industry v CCMA and Others (C 855/15) [2019] ZALCCT 1 (6 February 2019)
The
labour court of South Africa, cape town
judgment
Not reportable
Of interest to other
judges
case
no: C 855/15
In
the matter between:
NATIONAL
BARGAINING COUNCIL FOR THE ROAD FREIGHT AND LOGISTICS INDUSTRY
Applicant
and
CCMA
First
Respondent
Hilary
mofsowitz n.o.
Second
Respondent
rocket
trading 117 cc
Third
Respondent
Heard
:
21 November 2018
Delivered
:
6 February 2019
Summary:
Review of demarcation award. LRA s 62.
judgment
STEENKAMP
J
Introduction
[1]
This is an application to have a demarcation award reviewed and set
aside.
Background facts
[2]
The
applicant is the National Bargaining Council for the Road Freight and
Logistics Industry (NBCRFLI). The second respondent, Ms
Hilary
Mofsowitz, is a commissioner of the CCMA
[1]
.
She found that the third respondent, Rocket Trading 117 cc, does not
fall within the registered scope and jurisdiction of the
Bargaining
Council.
[3]
The company (Rocket Trading) manufactures a sand and stone product
that
it sells and delivers to its customers. It rents out containers,
building huts and earth moving equipment. It is involved in the
demolition of buildings. It also collects rubble from building sited
by transporting “v-bins” or skips. The Bargaining
Council
sought jurisdiction over that part of the business, arguing that it
falls within the transport industry.
The evidence
[4]
A member of the cc, Rynard Swanepoel, testified that the company
previously
transported goods for gain but no longer does so. The
disputed aspect of the business involves the collection of rubble
using the
company’s vehicles. They collect rubble in skips or
V-bins from customers’ premises, process it and convert it into
a further product to be sold or they simply dump the rubble. The
customer the renting out of containers is the essence of the business
transporting the rubble is not the dominant aspect of the activity.
[5] A
driver, Nicholas Johannes Huysamen, testified in support of the
Bargaining
Council’s submissions. He testified that he
would deliver v-bins or skips to customers and collect the full
containers
from customers’ sites and transport them back to the
business premises or to other sites such as landfill tipping sites.
He would transport 5 to 7 bins a day and there were 12 drivers
carrying out the same job
The award
[6]
The arbitrator correctly set out the issue to be determined whether
the
activities of fall within the ambit and scope bargaining
Council’s certificate of registration, constitution and main
collective
agreement. The dispute was referred in terms of section 62
of the LRA.
[7]
The arbitrator referred to the following definition contained in the
main
collective agreement:
The
Road Freight and Logistics Industry means the sector in which
employers and employees are associated carrying out one of the
following activities hire or reward:
a)
transportation of goods by means of transport.
[8]
And “goods” is defined as follows:
“
Goods” means
any movable property, including but not limited to any article,
commodity or substance such as sand, soil, gravel,
stone, coal, water
or other liquid, gaseous or solid matter and includes containers or
containerised goods.”
[9]
The
arbitrator noted that the activities of the company were not placed
in dispute. Neither was the content of the main collective
agreement.
She had to determine the true nature of the business. And in this
regard she referred to
Coin
Security
[2]
where
it was held that the character of the business is determined not by
the occupation of the employees engaged in the employer’s
business, but by the nature of the enterprise in which the employees
and the employer are associated for a common purpose.
[10]
The arbitrator compared the activities of the company against the
definition in the main
agreement. She correctly identified the
material dispute as being whether the company transported its own
goods or that of its
customers. There was no dispute that rubble is
classified as “goods” in the definition.
[11]
The arbitrator concluded that once the rubble is collected, the
customer has no further
interest in it. The company elects whether to
dump the rubble or to process it and then to on-sell it. In essence,
the company
transports its own goods. Its main profit is not made
from transporting goods, but from the rental of containers and the
selling
of processed products. Whilst it is so that the rubble is
collected, the containers are loaded on to the company’s
vehicles
and it takes them away, the transporting of goods is not its
primary business activity. That activity is the business of the
rental
of containers.
[12]
The
arbitrator also had regard to
Greatex
Knitwear
[3]
:
“
The meaning of
‘industry’ had to be determined, and the definition
thereof was often restrictively interpreted; the
activities of the
employer had to be determined; and the activities of the employer had
to be compared with the definition, as
interpreted. If some of the
activities of the employer fell under the definition, the next
question was whether those activities
were separate from or ancillary
to the other activities. If the activities were ancillary to the
employer’s other activities,
the employer was not engaged in
the industry (unless the activities were of such magnitude that it
could be said to be so engaged)”.
[13]
Applying those two judgements, the arbitrator was satisfied that the
activities of the
company did not fall within the definition of the
road freight and logistics industry. The main business of the company
was the
rental of skips and V-bins; transportation of the rubble is
merely ancillary to this function.
[14]
The
arbitrator was also persuaded and led by the Labour Appeal Court
decision in
Richards
Rentals.
[4]
In that
case, the company (Richards Rentals) was in the business of hiring
out tipper-trucks and drivers to its clients in the mining
and
construction industries. These tipper-trucks are used to convey
landfill and aggregate rubble generally within the relevant
site
areas but occasionally to and from landfill or dumping points outside
such sites. The Labour Court and the LAC both agreed
with the
arbitrator in that case that the activity of hiring out vehicles for
rental did not fall within the road freight industry.
[15]
In this case, the arbitrator accepted – as has been set out in
case law – that
the demarcation of an enterprise or business is
a policy laden decision with far-reaching consequences. She did not
find any socio-economic
factors that would override the established
demarcation principles. She considered the undisputed evidence that
the drivers played
in the business receive the same salary rates as
those prescribed in the Bargaining Council. She did not find any
ulterior motive
in the fact that one driver from the business was
registered with the council. In conclusion she found that the
operations and
activities of rocket trading did not fall under the
registered scope and jurisdiction of the Bargaining Council.
Review grounds
[16]
The Bargaining Council submitted that the arbitrator committed a
gross irregularity when
she found that the rubble that was being
transported was the company’s own goods; and that its main
business was the hiring
out of bends and not the transportation of
the rubble. It argued that the arbitrator applied too restrictive an
approach when considering
the nature of the business. And it argued
that the case of
Richards Rentals
had to be distinguished from
the current one.
Evaluation / Analysis
[17]
In
Richards
Rentals
[5]
the LAC paid particular consideration to the following remarks made
by the court in paragraph 63 of the
Coin
Security
judgment. It referred to the court’s remarks, which appear at
paragraphs 59, 63 and 64 respectively:
‘
Under the Act
(LRA), demarcations need to be seen in the context of the system of
bargaining councils established there-under aimed
at achieving the
primary objects of the Act, including the promotion of orderly
collective bargaining at a sectoral level. These
statutory
imperatives require the demarcating tribunal to enquire, beyond
mechanistic comparison of jobs, into the relevant bargaining
practices and structures... The demarcation process is one entrusted
to a specialist tribunal in terms of the provisions of the
Act. The
demarcation decision is one involving facts, law and policy
considerations. In demarcation decisions, there will, more
often than
not, be no one absolutely correct judgment. Particularly in decisions
of this sort, and given the provisions of the
Act, there must of
necessity be a wide range of approaches and outcomes that would be in
accordance with the behests of the Act.
Due deference should
therefore be given to the role and functions and resultant decisions
of the CCMA in achieving the objects
of the Act. This approach will
not only be consistent with these principles, but also consistent
with the need for the Act to be
administered effectively. The case
for judicial deference becomes all the more compelling in this matter
given that NEDLAC agreed
to support the provisional award.’
[18]
It is with
those remarks in mind that the Court has to consider the award. And
both Messrs
Prior
and
Jacobs
also
referred to the LAC’s judgment in
SAMWU
v Syntell
[6]
where Sutherland AJA reiterated the
sui
generis
character
of an arbitration award.
[19]
In this case, the arbitrator carefully considered the evidence before
her; the applicable
jurisprudence; and the principles relating to
demarcation disputes.
[20]
On the evidence before her, the arbitrator correctly found that the
company rents out bins
and collects them from its customers. It does
not transport goods for reward. The property remains its own. And the
rubble it collects
from its customers is either disposed of or
reprocessed. Once the rubble is collected from the customer, it
becomes the property
of the company and it is undisputed that the
skips remain the property of the company.
[21]
The arbitrator’s finding that the transport of containers is
ancillary to the company’s
main business cannot be faulted. It
is an entirely reasonable factual finding on the evidence before her.
And in applying that
factual finding to the applicable jurisprudence,
she came to a carefully reasoned conclusion. It is not open to
review.
[22]
With regard to costs, the Court takes into account that there is an
ongoing relationship
between the parties. A costs order is not
appropriate when considerations of both law and fairness are
considered.
Order
The
application for review is dismissed.
_______________________
A
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
A
J Prior (attorney).
THIRD
RESPONDENT:
W
Jacobs (attorney).
[1]
Commission
for Conciliation, Mediation and Arbitration, the first respondent.
[2]
Coin
Security (Pty) Ltd v CCMA
[2005]
7 BLLR 672 (LC).
[3]
Greatex
Knitwear (Pty) Ltd v Viljoen
1960
(3) SA (T).
[4]
National
Bargaining Council for the Road Freight Industry v Marcus NO and
Others
(2013) 34
ILJ
1458 (LAC).
[5]
Above
par [22].
[6]
SAMWU
v Syntell (Pty) Ltd
(2014)
35
ILJ
3059
(LAC) par [22].