IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO:
J115/99
In the matter between:
NATIONAL POLICE SERVICES UNION First
Applicant
NATIONAL SECURITY AND ESSENTIAL
SERVICES UNION Second
Applicant
NATIONAL POLICE, PRISONS AND CIVIL
RIGHTS UNION Third
Applicant
and
THE NATIONAL NEGOTIATING FORUM First
Respondent
JUDGMENT
______________________________________________________________
VAN NIEKERK, A:
[1] This is an application for urgent interim relief against the First
and Second Respondents. The First Applicant seeks an interim order
calling on the Respondents to show cause why an order should not
be made :
1.1 As against the First Respondent -
1.1.1 declaring invalid a decision taken at a meeting of the
First Respondent on 11 April 1997 to set a threshold
of representativity for qualification as an employee
organisation in terms of the South African Police
Service Labour Regulations at 10 000 members.
1.2 As against the Second Respondent -
1.2.1 declaring the de-registration of the First Applicant to
be null and void;
1.2.2 interdicting and restraining the Second Respondent from
withdrawing the registration of the First Applicant as an employee
organisation; and
1.2.3 declaring the application on behalf of the First, Second and
Third Applicants to be registered as an employee organisation to
have complied with the statutory requirements for registration as an
employee organisation.
[2] Only the Second Respondent, to whom I will refer as “the
National Commissioner” opposes the application. I will refer to
the First Respondent as “the NNF”, and to the First Applicant
as “the Union”.
BACKGROUND
[3] The Union was a member of the NNF. Its effective expulsion
from that body and the consequent loss of certain rights, and
in particular, the right to have the dues of its members
deducted by way of a stop order against their salaries, gives
rise to this application.
[4] These developments are the consequence of a decision taken
by the NNF to apply a threshold of 10 000 members for registration
as an employee organisation. Although the use of the word
"registration" in the Notice of Motion and the affidavits filed by the
parties utilises the nomenclature adopted in the South African Police
Service Labour Regulations, in this context, registration effectively
means recognition by the SAPS for the purposes of collective
bargaining. Registration in terms of the Regulations should not be
confused with registration in terms of section 96 of the Labour
Relations Act, 66 of 1995 ("the LRA"). As it happens, the union is
registered in terms of section 96, but its status in that respect is
unaffected by any of the decisions of the National Commissioner or
the NNF, or by these proceedings.
[5] To understand the context within which the application is
brought, some appreciation of the institutions and practices of
collective bargaining in the South African Police Services is
necessary.
[6] The South African Police Service Labour Regulations (“the
Regulations”) were made by the Minister of Safety and Security on
27 September 1995, and published in Government Notice R1489 on
the same date. Despite their imperious form and tone, the
Regulations deal with many issues that in other sectors would be
governed by an agreement in terms of which a trade union is
recognised by an employer as a collective bargaining agent.
Employee organisations that are registered in terms of the
Regulations are accorded various rights, including the right to have
the employer (the SAPS) deduct membership fees from the salaries
of employees.
[7] Regulation 6 provides that an employee organisation must
apply to the National Commissioner to be registered as such,
despite its registration in terms of any other law. Regulation
6(4) sets out the conditions for registration, one of which is
that the employee organisation must be sufficiently
representative of SAPS employees. The Regulations do not
define "sufficiently representative" but "employer" is defined
to mean the SAPS. The Regulations also provide for the loss of
recognition, inter alia, if the employee organisation concerned
is no longer sufficiently representative of SAPS employees.
(See Regulation 6(6)).
[8] The Regulations also establish the NNF. The employer (the
(See Regulation 6(6)).
[8] The Regulations also establish the NNF. The employer (the
SAPS) and all recognised employee organisations are parties
to the NNF, and may participate in the proceedings of the
NNF. The primary function of the NNF is to negotiate matters
of mutual concern, which are defined to include terms and
conditions of employment. Importantly for the purpose of
these proceedings, the NNF is also required to determine from
time to time the threshold of representativity for the purposes
of registration as an employee organisation. (See Regulation
4(3)). Voting rights in the NNF are equally divided between the
SAPS on the one hand and recognised employee organisations
jointly on the other hand. The employee organisations enjoy a
number of votes in direct proportion to the number of
members of each in relation to the overall membership of
recognised associations. In matters other than unfair labour
practice disputes and other disputes of right, a vote of the
employer together with a majority vote of the employee side
of a meeting constitutes a binding decision of the NNF.
Disputes about the interpretation of agreements concluded by
the NNF must be referred to arbitration (see Regulation 13).
[9] The enactment of the LRA affected the nature and status of
the Regulations. Item 18 of Schedule 7 of the LRA provides that the
NNF will continue to exist, subject to item 20(2)(d). That paragraph
deems the NNF to be bargaining council established in terms of
Section 37(3)(b) of the LRA, for the SAPS.
[10] Item 19 of Schedule 7 provides that the Regulations have the
effect and status of a collective agreement binding on the State, the
parties to the NNF and all employees within its registered scope. In
other words, the enactment of the LRA had the effect of a
metamorphosis- the NNF became a bargaining council, and the
Regulations assumed the character of a collective agreement
concluded by a bargaining council.
[11] It is obvious from the provisions of Regulation 6 that
membership of the NNF is not open to all comers. Employee
organisations are required to establish and maintain their
organisations are required to establish and maintain their
credentials in the form of a sufficient degree of representativity. The
sufficiency of representativity, as I have noted, is a matter, which
the NNF is required to determine. On 18 and 19 March 1997, the
NNF had a meeting at which the question of a threshold was
discussed. The Union was not represented at the meeting. The
reason for its non-attendance is not entirely clear; the minutes
record its absence and the fact that no apologies were received.
The minutes also record agreement amongst those parties present
on a threshold of 10 000 paid up members. The SAPS undertook to
draw up an agreement to this effect.
[12] On 22 and 23 April 1997, the NNF met again. The Union was
represented at the meeting. The minutes of the meeting confirm
that agreement was reached on the threshold, and record that a
written agreement was signed by two unions (neither of whom are
party to these proceedings) and who from the membership figures
stated in the minutes, clearly represent the vast majority of SAPS
employees. The Union made something of the fact that the
agreement as drafted made no provision for signature by its
representative. Although this may amount to a breach of industrial
relations etiquette, it takes matters no further. It is clear that the
Union and at least one other minority union for reasons that remain
undisclosed refused or failed to sign the agreement. It was not
contested though that in terms of the Regulations, the agreement
had the support of the employer party and the majority union
parties to the NNF and that it was in this sense at least a valid
collective agreement, binding on all parties to the NNF.
[13] The Union does not have 10 000 members. At the time that
agreement was reached in the NNF on the threshold, it appears to
have had less than 2000 members. Its inability to meet the
threshold posed an immediate and serious problem. The effect of
the implementation of the threshold is not only the derecognition of
the Union for collective bargaining purposes, but also the forfeiture
the Union for collective bargaining purposes, but also the forfeiture
of organisational rights enjoyed by recognised unions. In particular,
de-recognition means the loss of status as a party to the NNF, and
forfeiture of the right to have membership fees deducted by the
South African Police Services from the salaries of members, the
right of access during working hours, and the right to information.
[14] For reasons never satisfactorily explained, the decision taken
on 11 April 1997 was not immediately implemented.
[15] A little less than a year later, on 24 and 25 March 1998, the
matter of the threshold was once again placed on the NNF's
agenda. The Union was represented at this meeting. The
minute of the meeting reads as follows -
"THRESHOLD FOR REPRESENTIVITY : [EMPLOYER]
Management stated that an agreement in this regard
has been reached in April 1997 and that discussions
have taken place in the Constitutional Committee. A
threshold of 10 000 members was agreed upon.
PSA stated that if management was prepared to revisit the
agreement that it should be re-negotiated.
SAPU stated that they were not ready to revisit the agreement and
that they wanted it implemented.
Management undertook to give employee organisations notice of
the process to de-register.
The item remains on the agenda.”
[16] On 27 March 1998, an attorney acting on behalf of the union
wrote to the National Commissioner. She advised him that
neither the LRA nor the regulations stipulated a requirement
of 10 000 members as a condition for recognition. The
National Commissioner was requested that Regulation 6(b) be
referred to the President of the Labour Court for
interpretation. The question that it was proposed to put to the
Court was whether "sufficiently representative" in Regulation
6 meant 10 000 members. This request was obviously based
on a misreading of Regulation 13, which provides for disputes
about the terms of reference of an arbitration to be referred to
the president of the industrial court, or another agreed
person.
[17] The National Commissioner was invited to submit the letter to
the NNF for consideration. The letter stated further that should the
matter not be referred to the Labour Court within 60 days, the union
would adopt the attitude that the decision to de-register the union
had been withdrawn. The National Commissioner did not respond to
the letter.
[18] On 28 and 29 April 1998, a further meeting of the NNF was
held. Again, the matter of the threshold for recognition was raised.
The Union was represented at this meeting. Again, the issue of the
threshold for representativity was discussed. The SAPS
representative at the meeting noted the agreement reached in April
1997 on a threshold of 10 000 members, and stated that the
National Commissioner would give notice of withdrawal of
registration where necessary. Certain of the unions present at the
meeting made comments, the majority of which were to the effect
that the agreement should be enforced. The representatives of the
Union stated that they were “still consulting with their Legal
offices”.
[19] At the conclusion of the discussion on this issue, it was
recorded that the relevant employee organisations would be notified
within 90 days of the withdrawal of their registration if they did not
meet the required level of 10 000 members.
[20] After the April meeting of the NNF, there could have been no
doubt in anybody’s mind that the threshold had been fixed at 10
000 members and that it was about to be enforced.
[21] The National Commissioner alleges that on 3 June 1998, a
letter was addressed to the union in which it was advised that if it
did not meet the required threshold within 90 days, its registration
would be withdrawn. The Union alleges that it did not receive the
letter, and counsel for the National Commissioner conceded that he
could not establish that it had in fact been sent. The parties are
agreed however that by 21 September 1998, the Union had
received written notice of the National Commissioner’s intention to
implement the threshold.
[22] In the latter half of 1998, the Union adopted a different tactic
in order to meet the new threshold. It sought to invoke the
assistance of other unions in a similar predicament. In September
1998, it entered into an agreement with the Second and Third
Applicants. In terms of that agreement, the parties agreed to co-
operate extensively for the purpose of acting jointly in terms of
section 11 of the LRA for the purpose of meeting the threshold
established by the NNF. On 9 September 1998, the Union submitted
established by the NNF. On 9 September 1998, the Union submitted
an application for registration, requesting the National
Commissioner to take into account the membership of the Second
and Third Applicants in determining whether the Union met the
requirement posed by the Threshold of 10 000 members.
[23] The united front presented by the agreement between the
three unions concerned did not persuade the National Commissioner
to change his mind. The National Commissioner adopted the view
that regulation 6 referred to a single employee organisation, and did
not permit, as Chapter III of the LRA does, two or more unions acting
jointly to meet a threshold for sufficient representativity. He noted
too that the Unions constitution did not provide for membership
other than members of the Union itself, and that the registration of
the Union “working together” with the Second and Third Applicants
would lead to a proliferation of union representation within the
SAPS. On 23 September 1998, a letter to this effect was addressed
to the Union.
[24] On 26 October 1998 the head of the South African Police
Services Labour and Industrial Relations addressed a letter to the
Union's attorneys in which the refusal of the application based on
the co-operation agreement was confirmed. The same latter advised
the union that its organisational rights had been withdrawn with
effect from 8 October 1998.
[25] The Unions attorneys responded to this letter on 2 November
1998. The terms of that letter reflect the Union’s primary complaint
as one relating to the period of notice within which it was to be
granted an opportunity to rectify the shortfall in its membership.
The letter records that the Union was notified on 21 September
1998 of the implementation of the threshold, and that the 90-day
notice period would therefore terminate only on 20 December 1998.
The attorney then demanded an undertaking that the National
Commissioner accepted that the union had until 20 December to
meet the threshold, and that no action would be taken that would
prejudice the rights of the Union both generally and in relation to
check-off.
[26] On 5 November 1998 the National Commissioner replied, and
confirmed that he would extend the union’s registration until 20
December 1998. The Union’s attorney responded on 21 December
1998, this time challenging the de- recognition of the Union on the
basis that it had not been notified of the threshold agreement and
that it had not been afforded the opportunity to participate in the
meeting of the NNF that concluded the agreement. The response
relies too on a draft agreement for the restructuring of the NNF
which contemplated the admission to a proposed bargaining council
of two or more unions acting jointly. For these reasons, it was
alleged that the National Commissioner’s actions were unlawful and
premature. The National Commissioner replied the next day,
reiterating its position that the Union was deregistered with effect
from 20 December 1998.
POINTS IN LIMINE
[27] At the commencement of the proceedings, Mr Ram,
representing the National Commissioner, raised three points in
limine.
representing the National Commissioner, raised three points in
limine.
[28] First, it was argued that in so far as the Union relied on certain
provisions of both the LRA and the Constitution, this Court did not
have jurisdiction to grant the relief sought. In support of this
contention, it was argued that while the LRA protects and gives
effect to fundamental labour rights, the Act prescribes the
procedure for the resolution of disputes concerning those rights. In
particular, the LRA requires that disputes in respect of
organisational rights be referred to the CCMA for conciliation, and if
unresolved, to arbitration in terms of Section 21(7). Similarly, those
disputes that concern the interpretation and application for
collective agreements are required to be resolved either in terms of
the agreement itself through conciliation and arbitration, or in the
absence of such a provision in the collective agreement, by the
CCMA. It was submitted that the dispute between the parties was
required to be determined in accordance with one or the other of
these provisions, and that this precluded the Court from hearing this
application.
[29] All of the submissions made by counsel overlook the nature of
these proceedings. The Union seeks an interim order. The
Court is not precluded from granting such an order only
because the Court may not in the final instance have
jurisdiction in respect of the dispute between the parties.
Section 158(1)(a) empowers the Court to grant urgent interim
relief and interdicts, and there is nothing in that section or in
section 157, which regulates the jurisdiction of this Court, that
expressly or impliedly places a limitation on the Courts powers
to the extent that Mr Ram suggested. The authority on which
he relied, NEWU v LMK Manufacturing (Pty) Ltd & others (1)
[1997] 7 BLLR 896 (LC) does not support his submission.
Despite the broad wording of the head note to the report, the
LMK Manufacturing judgment is concerned with the existence
or otherwise of a clear right in circumstances where a union
claims a right to deduction of subscriptions or levies from an
employee’s wages. The Court did not hold that it was deprived
of jurisdiction because the right to deduction of subscriptions
was a matter ultimately to be determined by arbitration.
Indeed, there is authority to the contrary. In National Union of
Metalworkers of South Africa v Nissan South Africa
Manufacturing (Pty) Limited (unreported) J3659/98 , Basson J
held that -
" It is an accepted principle that, even though the
Labour Court itself does not have the jurisdiction to deal
with disputes in regard to the application and
interpretation of such collective agreements, (this being
the jurisdictional domain of the CCMA in terms of the
Act) the Labour Court may in appropriate
circumstances, grant interim relief pending the
arbitration of such disputes in terms of the Act ." (at p8
of the unreported judgment).
[30] I agree. There is no merit in the objection to the Court’s
jurisdiction. I would note however that many of the
submissions made by both counsel in this regard have a
bearing on the respective rights of the parties, and in
particular, whether the Union has established a prima facie
right to the relief it seeks. I deal with this matter later in this
judgment.
[31] The second point in limine raised by the National
Commissioner relates to the lack of authority on behalf of the
deponent to the Union's affidavit. The deponent, who
describes himself as the duly appointed President of the
Union, states that he is duly authorised to make the affidavit
and bring the application on behalf of the Union. In the
answering affidavit filed on behalf of the National
Commissioner, the deponent to that affidavit states - " I have
no knowledge of the allegations as set out herein and cannot
admit or deny same".
[32] Mr Ram relied on NUM v Freegold Consolidated Mines (1998)
BLLR 712 (LC) to submit that the failure by the Union, in its replying
affidavit, to respond to the National Commissioner's challenge in
respect of his authority, was fatal to the application. Mr Dorfling
contended that the terms of the answering affidavit did not amount
to a challenge of the deponent's authority, and that no response
was required in this regard from the Union in its replying affidavit.
[33] The terms of the National Commissioner’s challenge are not
sufficiently bold for me to entertain a point in limine on the basis
suggested by Mr Ram. The answering affidavit filed on the National
Commissioner’s behalf simply denies any knowledge of authority.
The consequences of a challenge to authority, as the Freegold
judgment demonstrates, can be both inconvenient and costly. If a
challenge is made, it should be made on terms that are sufficiently
unequivocal to alert the party to whom the challenge is directed
that a response is necessary. In this instance, the answering
affidavit does not specifically deny the authority of the deponent to
the replying affidavit, nor does it put the Union to proof of authority.
That being so, there was no obligation on the Union to prove
authority, and the point in limine based on a lack of authority cannot
be sustained.
[34] Finally, it was argued that the application is not urgent. In its
founding affidavit, the Union noted the following factors in support
of its contention that the matter was one of urgency. First, it is
submitted that although the NNF decided to set the threshold at
10 000 members on 11 April 1997, this decision only came to the
knowledge of the Union by way of written notification on 21
September 1998. Secondly, it is submitted that between 12
October 1998 and 22 December 1998, there "was constant
negotiations and correspondence between the attorney of record for
the First Applicant and the First Respondent's representatives
the First Applicant and the First Respondent's representatives
pertaining to a possible settlement in this matter which failed to
materialise on 22 December 1998 when the Minister's
representative refused any further postponement of the deductions
from the NAPOSU members' salaries". Thirdly, it is submitted that
there were very few working days between 22 December 1998 and
the time that papers were finally settled, making it impractical to
bring the application on an urgent basis in that period of time.
Finally, it is submitted that the First Applicant had been involved in
other extensive litigation, which precluded it from urgently pursuing
its rights after receipt of the letter dated 22 December 1998. The
National Commissioner has denied that the matter is urgent, and
submitted that the application should be dismissed on that basis.
[35] None of the submissions made by the Union are particularly
compelling. The Union knew in April 1997 that a threshold was to
be established, and it was aware of the consequences of a threshold
of 10 000 members for its status as a collective bargaining agent. It
was aware too during March that pressure was mounting to
implement the threshold. Its concerns were such that an attorney
was instructed to put the National Commissioner on terms. At the
April meeting of the NNF, it was clear to all present that the axe was
about to fall on those unions that had insufficient members to meet
the threshold. Even though the correspondence misconceived the
exact nature of the Union's remedy, the letter demonstrates an
awareness of a right of recourse in response to the NNF's proposed
course of action. Even assuming that the Union did not receive the
notification of 3 June 1998, it was aware, on its own version, by 26
September 1998, of the attitude adopted by the National
Commissioner.
[36] I am unable to find any evidence on the papers of "constant
negotiations" that may have justified delaying the application.
There is no record of any meetings in which possible
compromises were explored. The correspondence referred to
takes the matter no further- on both sides, it amounts to a
restatement of previously held positions.
[37] On its own version, and irrespective of receipt or otherwise of
the letter of 3 June 1998 and the delays in implementing the
threshold, the Union was aware on 21 September 1998 of moves to
implement the threshold and what the consequences of
implementation would be. By 23 September 1998 the Union was
aware that its strategy of seeking strength in numbers by forming
alliances with other minority unions had not found favour. When the
notice period relating to its derecognition expired, the threat to the
Union’s pocket became a reality, and it was only then, the day after
its derecognition became effective, that the Union was galvanised
into action.
[38] Having been so galvanised, the Union did not pursue its
interests with the degree of expeditiousness that might have
been expected. Although I am mindful of what Judge
Sutherland termed the "collective slumber" that pervades the
land from mid-December to early January (see Transport &
General Workers Union & others v Hiemstra NO & another
(1998) 19 1598 (LC), that does not excuse more than three
weeks of inactivity on the part of the Union between 22
December 1998 and 13 January 1999, when the application
was launched. The Labour Courts remain open to the public
during the holiday season. A duty Judge is available at all
times. This is one of those instances where whatever urgency
there may have been was permitted to take a break, only to
resume once the holiday season came to an end. (See
Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA
500 (WLD)).
[39] The latitude extended to parties to dispense with the Rules of
this Court in circumstances of urgency is an integral part of a
balance that the Rules attempt to strike between time limits
that afford parties a considered opportunity to place their
respective cases before the Court and a recognition that in
some instances, the application of the prescribed time limits,
or any time limits at all, might occasion injustice. For that
reason, Rule 8 permits a departure from the provisions of Rule
7, which would otherwise govern an application such as this.
But this exception to the norm should not be available to
parties who are dilatory to the point where their very inactivity
is the cause of the harm on which they rely to seek relief in
this Court. For these reasons, I find that the Union has failed
to satisfy the requirements relating to urgency.
[40] I was inclined to dispose of this application solely on the
grounds of urgency. However, in terms of the order made on 14
January 1999, the parties had filed answering and replying
affidavits, and when the application was called, extensive heads of
argument were submitted by both counsel. Since the events
surrounding the derecognition of the Union were as integral a part
of the merits as they were to any consideration of urgency, I have
considered and will deal with the application beyond the points in
limine raised by the National Commissioner.
[41] To succeed in this application, the Union must establish a
prima facie right, a well-grounded apprehension of irreparable harm
if the relief is not granted a balance of convenience in favour of
granting the relief, and the absence of any other satisfactory
remedy.
A PRIMA FACIE RIGHT
[42] Mr Dorfling relied on Section 157(2) of the LRA in response to
the objection taken by the Second Respondent in regard to
jurisdiction. It was submitted that Section 157(2), which confers on
this Court concurrent jurisdiction with the High Court -
"(a) in respect of any alleged violation or threatened
violation, by the State in its capacity as employer
of any fundamental right entrenched in chapter 3
of the Constitution; and
(b) in respect of any dispute over the Constitution finality of any
executive or administrative act or conduct, or any threatened
executive or administrative act or conduct by the State in its
capacity as employer."
[43] It was submitted on the Union's behalf that the NNF and/or the
National Commissioner had infringed the following
constitutional rights -the right to equality in terms of Section
9; the right to freedom of association in terms of Section 18;
the right to fair labour practice in terms of Section 23; and the
right to just administrative action in terms of Section 33.
[44] Mr Ram argued that the qualification “by the State in its
capacity as employer” precluded the Union from relying on section
157, and that I need not consider the infringement or otherwise of
any of the fundamental rights alluded to by Mr Dorfling. He urged
me to adopt a narrow view, limiting the application of this section
and therefore the Labour Court’s jurisdiction to instances where the
State acts as an employer in the context of an individual
employment relationship. When the National Commissioner notified
the Union of the intention to implement the threshold, and when it
refused to recognise the three unions acting jointly, it was
accordingly acting not in its capacity as an employer, but as a party
to a collective agreement that it intended to enforce.
[45] In my view, the wording of section 157 does not support this
limitation. There is no express exclusion of acts by the State in the
context of collective as opposed to individual labour matters, nor
can I find any implication in that section to that effect. When the
SAPS elects to become a party to collective agreements concluded
in the NNF does not do so in some capacity unrelated to
employment. Entering into collective agreements with trade unions
is something The SAPS is the sole employer party to the NNF. When
it concludes agreements in the NNF it does so in its capacity as an
employer. In its correspondence with the Union concerning the
enforcement of the threshold and its interpretation of Regulation 6,
it was acting in the same capacity. Its actions are therefore subject
to scrutiny in terms of section 157(2) of the LRA.
[46] The question that then arises is whether the conduct of the
[46] The question that then arises is whether the conduct of the
NNF or the National Commissioner amounts to a violation or
threatened violation of any fundamental right protected by the
Constitution.
[47] Mr Dorfling submitted that both the setting of the threshold of
10 000 members in order to retain membership of the NNF, and the
refusal by the National Commissioner to recognise the Union acting
jointly with the Second and Third Applicants were actions that
amounted to an administrative act or conduct. In particular, it was
argued that the failure by the NNF and the National Commissioner
to afford the Union the opportunity to be heard before the decisions
were taken was in conflict with Section 33(1) of the Constitution,
read together with the principles of the common law pertaining to
fair administrative action.
[48] I do not agree. The decision to determine a threshold was not
an administrative act, nor did the decision to interpret
regulation 6 to exclude one or more unions acting jointly
amount to one. Although it is true that the Regulations require
the National Commissioner to give notice of any intention to
withdraw recognition, the threshold and the decision to
implement it were the product of a process of collective
bargaining, not the unilateral exercise of an administrative
function or power on the part of the National Commissioner.
The Union participated, albeit in muted fashion, in the
bargaining process. The fact that it was dissatisfied with both
the outcome and the notice by the National Commissioner
that he intended to implement that outcome, is not a
reflection on the process by which that outcome was
achieved. The decision by the National Commissioner not to
register the Union acting jointly with the Second and Third
Applicants was based on his interpretation of the collective
agreement in the form of the Regulations. The refusal to
register the Union in these circumstances was not the
outcome of the exercise of an administrative discretion or
function so much as an application of the National
Commissioner’s understanding of the terms of the collective
agreement. This understanding is of course open to challenge
ultimately by way of arbitration either in terms of the
agreement itself or in terms of the LRA. The values of
accountability, responsiveness and openness in regard to
administrative justice referred to in Carephone (Pty) Ltd v
Marcus NO &others [1998] 11 BLLR 1093 (LAC) at 1099 are
satisfied by the processes established in the LRA.
[49] Mr Dorfling submitted that another minority union had not
suffered the same fate as the applicant union, and that this
unequal treatment amounted to an infringement of the right
to equality. The letter addressed to the Union on 3 June 1998
was also addressed to the other minority union. There is
nothing in the papers which satisfactorily establishes that
notwithstanding that notice, the National Commissioner had
treated that union any differently. In any event, the right to
equality in this context finds expression in section 18(2) of the
LRA. That subsection requires a bargaining council, when it
fixes a threshold of representativity for the purposes of
acquiring the organisational rights contained in sections 12,
13 and 15, to apply the threshold equally to any registered
union seeking those rights. This provision can be enforced in
terms of section 22 of the LRA.
[50] In so far as the application of the rights to engage in
collective bargaining, to freedom of association, and to form and
join a federation are concerned, I am acutely aware of the complex
and controversial issues raised by this argument. Regrettably, the
submissions in the respective heads of argument and those made
during the proceedings did not adequately address these issues,
and the constraints under which this judgment was prepared
preclude me from doing so in any meaningful way. Suffice it to say,
however, that for the purposes of this application I am satisfied that
the LRA gives effect to the fundamental rights concerned in
Chapters II and III of the statute. The actions by the National
Commissioner were effected within the parameters of those
provisions. On this admittedly limited basis, and only for the
purpose of establishing the existence or otherwise of a prima facie
right, I find that the National Commissioner’s conduct did not
amount to an infringement of any of the fundamental rights as
alleged by the Union.
[51] Finally, I was urged to have regard to the spirit of the LRA. In
spite of the broad terms in which the Notice of Motion is phrased,
both in its papers and during the course of argument, the Union’s
primary concern appeared to be the imminent withdrawal of the
check-off facility that it enjoyed as a recognised union. But the
terms of the relief sought by the Union effectively require the Court
to overturn a decision taken by a bargaining council, in accordance
with a binding collective agreement, which has had the effect of
derecognising the Union as a collective bargaining agent. I was
urged to find that both the implementation of the threshold and the
refusal to register the unions acting jointly were in conflict with the
spirit of the LRA. I was referred particularly to section 1 of the LRA
which provides for a framework within which unions, employees and
employer organisations can collectively bargain, the injunction in
section 1(d) to promote orderly collective bargaining and regulation
of organisational rights in terms of section 18 of the Act.
[52] All of these submissions overlook an important policy
consideration that underlies the LRA. The LRA adopts an
unashamedly voluntarist approach- it does not prescribe to parties
who they should bargain with, what they should bargain about or
whether they should bargain at all. In this regime, the Courts have
no right to intervene and influence collectively bargained outcomes.
Those outcomes must depend on the relative power of each party to
the bargaining process. That power is underpinned by the
organisational rights conferred by Part A of Chapter III of the Act,
and the right to collective action conferred by Chapter V. To set
aside the derecognition of the Union and to grant an order, even on
an interim basis, that the Union remains recognised in terms of the
collective agreement constituted by the Regulations, would be an
collective agreement constituted by the Regulations, would be an
unwarranted interference in a collective bargaining relationship.
[53] The NNF was entitled to take the decision it did. The Union
had the opportunity to influence that outcome. The National
Commissioner was entitled to give notice of the implementation of
the agreement. In so far as the Union’s real complaint is the loss of
the right to check off rather than its loss of recognition for collective
bargaining purposes, there appear to be a number of remedies
available to the Union. The rights conferred by sections 12 to 15 of
the LRA are unique in the sense that a union seeking to enforce
them may do so, at its election, either by strike action (see section
65(2)(a)) or by arbitration. In so far as the Union has a more
broadly based complaint about the refusal by the National
Commissioner to recognise or bargain with it, the Union has a
number of options at its disposal. But it has no enforceable right to
recognition, or, as matters presently stand, to check-off. This is not
an instance in which this Court is entitled to intervene, either in
terms of the letter or the spirit of the LRA.
[54] It follows that the Union has failed to establish a prima facie
right to the relief it seeks and that the application should be
dismissed on this basis.
[55] Finally, as I have noted, the Union is not without alternative
remedies. The determination of what constitutes “sufficiently
representative” for the purposes of the Regulations may be
challenged, ultimately in an arbitration. The protection against
unequal treatment is contained in section 18(2) and can be enforced
in terms of Chapter II of the Act. The decision to interpret the
Regulations so as to exclude one or more unions acting jointly is a
matter of the interpretation of a collective agreement. That
interpretation is subject to a process of conciliation and if necessary,
to arbitration. Despite the limitations inherent is the inclusion of the
SAPS in the definition of “essential services” in section 213 of the
LRA, there is nothing to preclude the Union from demanding
recognition on terms more amenable to its own interests and
pursuing those demands.
[56] For all of the above reasons, the Union has failed to satisfy the
requirements relevant to urgent interim relief.
[57] On the question of costs, the Court has a discretion that it
must exercise in terms of section 162. In the normal course, the
Union’s failure to establish urgency and the requirements for interim
relief would have the consequence of costs following the result.
However, I am mindful that this is a dispute that concerns a
collective bargaining relationship and that despite my finding, the
parties will undoubtedly pursue the remedies available to them
elsewhere, and that conciliation is an integral stage of all of the
available options. There appears in any event from a draft
agreement annexed to the papers to be some prospect of a
renegotiation of the Regulations to provide for the establishment of
a Safety and Security Sectoral Bargaining Council, perhaps on terms
that would accommodate the Union either in its own right, or acting
jointly with other minority unions. A cost order against the Union in
these circumstances may have the effect of prejudicing existing
these circumstances may have the effect of prejudicing existing
relationships, and inhibiting the prospects of an ultimate resolution
of the differences between the parties. For that reason, I intend to
make no award as to costs.
[58] I make the following order:
The application is dismissed.
There is no order as to costs.
ANDRE VAN NIEKERK
ACTING JUDGE OF THE LABOUR COURT
Date of hearing : 3 February 1999
Date of judgment: 10 February 1999
On behalf of the First Applicant:
Adv D Dorfling
Instructed by Nompumulelo Rabebe & Co
On behalf of the Second Respondent:
Adv RG Ram
Instructed by the State Attorney