166336IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: J190/99
In the matter between:
WESTERN CAPE WORKERS ASSOCIATION Applicant
And
GANSBAAI MARINE Respondent
JUDGMENT
STELZNER AJ
1. This is an opposed application to have the arbitration award
issued by the CCMA in favour of the applicant made an order of
this court in terms of section 158(1)(c) of the Labour Relations
Act, 66 of 1995 (“the Act”).
2. The issue in dispute between the parties at conciliation and the
subsequent referral to arbitration, concerned whether or not the
applicant had sufficient representation within respondent’s work
force for the purposes of applicant obtaining the organisation
rights referred to in section 13 of the Act, namely the right to
have trade union subscriptions or levies deducted from its
members wages.
3. It was common cause that the applicant represented 11.8% of
respondent’s workforce and respondent’s argument at the CCMA
was that this was not sufficient representation in the context of
all the applicable circumstances. It was also common cause that
the Food & Allied Workers Union was the majority union at
respondent’s workplace representing 52.9% of the employees.
4. In terms of the arbitration award of 7 December 1998, which
applicant seeks to have made an order of this court, the
respondent was ordered to grant to applicant and its members
the organisational rights set out in section 13 of the Act.
5. Subsequent to the granting of the aforesaid arbitration award
respondent entered into an agreement with the Food & Allied
Workers Union, being the majority union, on or about 12 March
1999, in terms of the provisions of section 18 of the Act. The
provisions of section 18 of the Act read as follows:
“18 Right to establish thresholds of representativeness:
An employer and a registered trade union whose members are a
majority of the employees employed by that employer in a
workplace, or the parties to a bargaining council, may conclude a
collective agreement establishing a threshold of
representativeness required in respect of one or more of the
organisational rights referred to in sections 12, 13 and 15.
(2) A collective agreement concluded in terms of subsection (1) is
not binding unless the thresholds of representativeness in the
collective agreement are applied equally to any registered trade
union seeking any of the organisational rights referred to in that
subsection.”
6. A copy of the agreement (hereinafter referred to as the
“threshhold agreement”) was annexed to respondent’s opposing
papers. It is clear ex facie the agreement that same complies
with the provisions of section 18 of the Act, nor was the
applicant’s representative able to dispute this in the submissions
made at the hearing of the matter.
7. The crisp question before me is thus whether or not the rights
afforded to parties by virtue of the provisions of section 18 of the
Act can be exercised after an arbitration award has been issued
on the subject matter sought to be regulated by the threshhold
agreement.
8. Mr Nieuwoudt, who appeared on behalf of the respondent,
made the general submission that no arbitration award in respect
of organisational rights can operate in perpetuity. It is quite
apparent that facts can change subsequent to the issuing of an
award which would either alter the effect of the award or render
the award redundant. For example, if a union ceases to be
registered then its ability to enforce an award in terms of which it
is granted organisational rights will stop despite the fact that a
provision to that effect had not at the time been written into the
arbitration award. The award ceases to have effect by operation
of the law. Mr Nieuwoudt submitted that, in the same way, rights
accorded by an arbitration award may cease by operation of the
law if an agreement is concluded in terms of section 18 of the
Act, provided of course that said agreement complies with the
provisions of section 18. I have already mentioned that it is clear
that the threshhold agreement in this matter does comply with
the requirements of section 18.
9. This court is given a statutory discretion to exercise the
various powers conferred upon it by section 158 of the Act,
including the power to make an arbitration award an order of
court. (See Jeremiah v National Sorgum Breweries (1999) 20 ILJ
1055 (LC) at 1058A).
10. In the Jeremiah case it is also confirmed that the onus of
persuading the court that such an order is justified rests on the
applicant. (At 1059H-I).
11. In this case Mr Nieuwoudt submitted that I should
exercise my discretion against making the award an order of
court in the light of the threshold agreement subsequently
entered into between the respondent and the Food & Allied
Workers Union. Mr August, who appeared on behalf of the
applicant, argued that it was clear that this agreement had been
entered into deliberately in order to frustrate the operation of the
arbitration award in that it ought not to be allowed to do so. He
thus requested that I nevertheless exercise my discretion in
favour of making the award an order of court.
12. The threshold agreement which has been entered into
between the respondent and the Food & Allied Workers Union is
one sanctioned by the provisions of the Act. It has been
accepted that this Act promotes collective bargaining and,
further, that the Act encourages collective bargaining in
particular between employers and majority unions, or unions
acting jointly for this purpose. This principle is endorsed, for
example, in the decision which was referred to me by Mr August
on behalf of the applicant, namely, Hospersa & Zuid Afrikaans
Hospital, CCMA Arbitration, GA637, 3 February 1997,
Commissioner Shear. Indeed, the provisions of section 18 of the
Act are a prime example of this philosophy of the Act.
13. In the circumstances it appears that it would be
inappropriate to exercise my discretion in favour of making the
award an order of court. In the first instance such award would
have no legal consequences. Secondly, to do so would constitute
a waste of the court’s time and money, in much the same way as
it would be a pointless exercise to make an award an order of
court where the facts showed that the award has in fact been
complied with. (See the Jeremiah decision at 1058C).
14. Mr Nieuwoudt indicated that respondent did not seek a
costs order against applicant in this matter. This would appear,
in any event, to be pertinently the sort of case where it would be
inappropriate to make an award of costs particularly as there is
an ongoing relationship between the parties.
15. In the circumstances I made the following order on 19
August 1999:
15.1 The application in terms of section 158(1)(c) is
refused.
15.2 There is no order as to costs.
S STELZNER
Acting Judge of the Labour Court of South Africa
DATE OF HEARING: 19 August 1999
DATE OF ORDER: 19 August 1999
DATE THAT REASONS
SUPPLIED:
APPEARANCE FOR APPLICANT: Mr Z August
OF: The applicant union
APPEARANCE FOR
RESPONDENT:
Mr H Nieuwoudt
OF: