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[2020] ZALCJHB 86
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SACWU obo Sfiso and Others v MLP Distributors CC and Others (J2976/2016) [2020] ZALCJHB 86 (1 June 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J2976/2016
In the matter between:
SACWU obo MTHETHWA
SFISO AND 16 OTHERS Applicants
and
MLP DISTRIBUTORS CC
AND 1 OTHER
First
Respondent
THE WORKFORCE GROUP
(PTY) LTD
Second
Respondent
Enrolled:
14 May 2020
Decided
on the papers
Delivered:
This judgment was handed down electronically by
circulation to the parties' legal representatives by email,
publication on the Labour
Court’s website and released to
SAFLII. The date and time for hand-down is deemed to be 15h00 on
1 June 2020
JUDGMENT
TLHOTLHALEMAJE, J
Introduction:
[1]
With
this application, the applicants seek an order to have the
arbitration award dated 7 November 2016 issued under the
auspices
of the Commission for Conciliation Mediation and Arbitration
(CCMA) be made an order of Court in accordance with the provisions
of
section 158(1)(c) of the Labour Relations Act (LRA).
[1]
[2]
This application was launched on 10 January
2017. A Notice to Oppose was filed by the respondents on 24 January
2017. Thereafter,
no further steps were taken by the respondents in
opposing the matter. The matter was subsequently enrolled for a
hearing. As a
result of the current declaration of the state of
national disaster, the court issued a directive to the parties on 8
May 2020
in line with the Urgent Directive issued by the Judge
President of this Court on 28 April 2020.
[3]
In response to the Court’s directive,
the parties had responded, and agreed to have the matter disposed of
on the papers.
The Respondents’ attorneys of record had
responded on 11 May 2020, whilst the applicant’s
attorneys of record
had responded on 13 May 20120. Only
written heads of argument were previously filed on behalf of the
applicants. Both
parties had waived their right to file supplementary
heads of argument.
The section 158 (1)(c)
application:
[4]
Following the referral of a dispute to the
CCMA by the applicants, a settlement agreement was concluded on
8 September 2016
in terms of which the individual
applicants were to be reinstated into the respondents’
employ with retrospective effect
on 13 June 2016 without
any form of backpay. That settlement agreement was made an
arbitration award in accordance with
the provisions of section 142A
of the Labour Relations Act on 7 November 2016.
[5]
In
the founding affidavit, the applicants averred that the respondents
have failed or refused to comply with the arbitration award.
In the
absence of any substantial opposition to the application, I am
satisfied that in accordance with
South
African Post Office Ltd v CWU obo Permanent Part-Time Employees
[2]
,
the
Court is in a position to exercise its discretion in favour of the
applicants in that
the
arbitration award satisfies the criterion set out section 142A of the
LRA, is sufficiently clear to have enabled the respondents
to know
exactly what they were required to do in order to comply with that
award, and further
that
there has not been compliance with the terms of the award.
[6]
I have further had regard to the
requirements of law and fairness insofar as the applicants sought an
order of costs. To the extent
that the applicants were compelled to
bring this application in circumstances where the dispute between the
parties was resolved
through an agreement at the CCMA, I see no
reason in law and fairness why they should be burdened with the costs
of this application.
[7]
Accordingly, the following order is made;
Order:
1.
The settlement agreement entered into
between the parties, which was made an arbitration award in terms of
the provisions of section
142A of the Labour Relations Act, is made
an order of Court in terms of section 158(1)(c) of the Labour
Relations Act.
2.
The first respondent is ordered to pay the
costs of this application
___________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
REPRESENTATION:
For the Applicant:
Matlatle Attorneys
For
the Respondent: Hunts Attorneys
[1]
Act
66 of 1995, as amended
[2]
[2013] ZALAC 20
; (2014) 35 ILJ 455 (LAC);
[2013] 12 BLLR 1203
(LAC)
at para [21]