166336IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J170/99
In the matter between:
HEALTH & HYGIENE SERVICES Applicant
And
SEEDAT N.O. (cited in her capacity as COMMISSIONER
FOR THE COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION)
First
Respondent
THE COMMISSION FOR CONCILIATION, MEDIATION &
ARBITRATION
Second
Respondent
DISTRIBUTIVE CATERING HOTELS & ALLIED
WORKERS UNION
Third
Respond
ent
JUDGMENT
STELZNER AJ
1. This matter came before me by way of a review in terms of the
provisions of section 145 of the Labour Relations Act, No 66 of
1995 (“the Act”). A dispute was referred to the CCMA (the
second respondent) by the third respondent concerning the
exercise of organisational rights in terms of the Act, in particular
the right to the granting of stop order facilities in terms of the
Act. The parties failed to settle this dispute at conciliation and
the dispute was then referred to arbitration in terms of the Act.
2. The arbitration proceedings took place before the first
respondent on 23 November 1998. At the outset of the
proceedings the applicant raised an objection in limine to the
jurisdiction of the first respondent to entertain the matter. The
objection in limine was based on the allegation that the
provisions of section 21 of the Act had not been complied with in
that the written notice addressed to the employer by the trade
union wishing to exercise an organisational right had not
contained all the details set out in section 21(2) of the Act.
3. It appears common cause from the documents forming part of
the papers before me and from the arbitration award of the first
respondent, that the notice given by third respondent in terms of
the provisions of section 21 did not, as a matter of fact, comply
with all the requirements set out in section 21(2). It is clear from
the arbitration award of the first respondent that his finding was
made on the basis that the failure of third respondent to adhere
to the provisions of section 21(2) did not divest the CCMA (the
second respondent) of jurisdiction to hear the dispute. In
deciding that the CCMA was not deprived of jurisdiction first
respondent held that the provisions of section 21(2) are directory
rather than peremptory. In coming to this conclusion first
respondent relied on the decision of Murphy C in SA Clothing &
Textile Workers Union v Sheraton Textiles (Pty) Ltd (1997) 18 ILJ
1412 (CCMA).
4. It was argued on behalf of the applicant that section 21(2) of the
Act in fact contains the prerequisite (procedural) jurisdictional
facts which must exist before first respondent acting in his
capacity as a Commissioner for second respondent can exercise
any of the functions referred to in the remainder of section 21 of
the Act and, in particular in this instance, the arbitral function
referred to in section 21(7). As authority for this proposition the
decision of the Labour Appeal Court in the matter of SA
Commercial Catering & Allied Workers Union v Speciality Stores
(1998) 19 ILJ 557 (LAC) was referred to. In that matter the
Labour Appeal Court held as follows:
“166336The substantive preconditions for the exercise of the
commission's functions of conciliation and arbitration in terms of
s 21(6) and 21(7) of the Act are those set out in s 21(1), viz that
it can exercise those functions only -
in respect of organizational rights conferred by part A of chapter III
of the Act; and
in respect of the exercise of the rights in a 'workplace' as defined by
s 213 of the Act.
Procedurally, the following facts must exist:
a written notice must have been sent by a registered trade union to
an employer (s 21(1));
the notice must be accompanied by a certified copy of the trade
union's certificate of registration (s 21(2));
the notice must contain specific particulars (s 21(2)(a) -(c) );
the employer must have received the notice (s 21(3));
no collective agreement must have been concluded as to the
manner in which the trade union will exercise the rights in
respect of a particular workplace (either because no meeting was
held in terms of s 21(3), or because no agreement was reached
at such a meeting);
a dispute or alleged dispute must exist (s 21(4));
the dispute must have been referred to the commission by one of
the parties (s 21(4));
a copy of the referral must have been served on the other party (s
21(5));
the commission must have appointed a commissioner to resolve the
dispute by conciliation (s 21(6));
in the case of arbitration, further, that the attempt at conciliation
must have failed and that one of the parties requested
arbitration (s 21(7)).
Before the commission exercises its function of conciliation and
arbitration under the Act, the substantive and procedural
preconditions set out in the previous paragraph must exist. It
cannot validly exercise those functions if the preconditions do
not exist.”
(At 562F – 563B of the judgment)
5. The Labour Appeal Court has thus confirmed that the procedural
steps set out in the provisions of s 21 are peremptory and not
merely directory. I am of course bound by that decision.
6. In the Speciality Stores decision the Labour Appeal Court also
confirmed that generally speaking a superior court always has
the power to determine whether the preconditions for the
exercise of a statutory power to act have been met even in the
absence of any statutorily provided remedy by way of an appeal
or review. (At 563G-H of the Speciality Stores judgment and see
also Minister of Public Works v Haffejee NO 1996 (3) SA 745 (A)
at 751G).
7. In this matter, however, the statute does provide for a remedy by
way of review, being that contained in section 145 of the Act.
Arbitration awards may be reviewed and set aside on the basis of
a defect in the proceedings. A defect in the proceedings means,
inter alia, that the commissioner -
committed misconduct in relation to the duties of a commissioner as
arbitrator;
committed a gross irregularity in the conduct of the arbitration
proceedings; or
exceeded the commissioner’s powers.
8. In this instance it was alleged that the defect in the proceedings
arose as a result of the commissioner exceeding his powers in
terms of the Act in determining that he had the necessary
jurisdiction to arbitrate the matter when the procedural
preconditions for the exercise of that power did not exist. This
would indeed appear to be the case.
“Where the Commission purports to fulfil its conciliatory and
arbitral functions it must do so in the same manner as other
bodies authorised by statute to perform certain functions do
theirs. This means that it can only lawfully perform those
functions if it has the competence or jurisdiction to do so in terms
of the Act. The manner in which it exercises that statutory
competence or jurisdiction must also be in accordance with the
provisions of the Act and the law.”
(The Speciality Stores decision at 560E).
9. The application came before me on an unopposed basis.
Applicant only sought costs against any respondent who opposed
the granting of the application and in the circumstances it
appears appropriate to make no order as to costs.
10. In the circumstances the following order is made:
10.1 The award of the first respondent under case number
GA33390 dated 3 December 1998 in the arbitration proceedings
between the applicant and the third respondent is reviewed and
set aside.
10.2 The award of the first respondent is substituted with the
following award:
“The CCMA has no jurisdiction to entertain the application and
the application is dismissed.”
10.3 There is no order as to costs.
S STELZNER
Acting Judge of the Labour Court of South Africa
DATE OF HEARING: 13 August 1999
DATE OF JUDGMENT: 18 August 1999
APPEARANCE FOR
APPLICANT:
Mr S Snyman of Snyman
Van Den Heever Heyns Inc
Attorneys