IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Johannesburg)
Case No. J1204/99
In the matter between:
NATIONAL UNION OF CONSTRUCTION WORKERS Applicant
and
ORANJE MYNBOU EN VERVOER MAATSKAPPY BPK
Respondent
JUDGMENT
REVELAS, J :
1] In this matter the applicant had approached this
court to make a settlement agreement entered into with
the respondent, an order of court in
terms of section 158(1) (c) of the Labour Relations Act
66 of 1995 (“the Act”). The parties to the Deed of
Settlement are the Building Construction and Allied
Workers Union and “Booysen P and Others”.
2] The respondent was not present at court, despite the
fact that it has filed opposing affidavits in this
matter. In the respondent's answering affidavit the
respondent has raised the point that the agreement was
not reached between itself and the applicant now before
court, but with another union and it therefore does not
regard itself bound by the agreement which it did not
comply with. It appears that on this ground alone the
applicant may not entitled to the relief it seeks.
However, another question arises, namely whether a
trade union can enforce a settlement agreement, such as
the one in question.
3] The deed of settlement envisaged that 49 dismissed
employees were to be reinstated in the employ of the
respondent. The applicants allege that the respondent
did not comply with the agreement.
4] The agreement of settlement in question was entered
into between a trade union and an employer (the
applicant) and seems to fall within the definition of
a “Collective Agreement” in section 213 of the Labour
Relations Act , No 66 of 1995 ("the Act"). The
definition reads:
"'Collective Agreement' means a written agreement concerning terms and
conditions of employment or any other matters of mutual interest, concluded by
one or more registered trade unions on the one hand, and on the other hand;
(a) one of more employers;
(b) on or more registered employers organisations; or
(c) one or more employers or one or more registered employers organisations."
5] The settlement agreement in question deals with
terms and conditions of employment, the reinstatement
part of it at least. Therefore it has to be a
collective agreement as defined in the Act. The
definition does not specifically exclude agreements
between trade unions and employers which were reached
to resolve dismissal disputes. Such an exception or
exclusion is not capable of being read into the
definition.
6] Section 24(1) of the Act reads as follows:
“1. Every collective agreement, excluding an agency shop agreement,
concluded in terms of section 25 or a closed shop agreement concluded in
terms of section 26, must provide for a procedure to resolve any dispute
about the interpretation or application [my emphasis] of the collective
agreement. The procedure must first require the parties to attempt to resolve the
dispute through conciliation and if a dispute remains unresolved, to resolve it
through arbitration."
Section 158(1)(c) of the Act provides that the Labour Court may
“make any arbitration award or any settlement agreement, other than a
collective agreement , (my emphasis) an order of court."
7] The latter two sections are plain in their meaning.
Any dispute about the application of a collective
agreement has to be referred to the Commission for
Conciliation, Mediation and Arbitration (“the CCMA”)
and the Labour Court may not make such agreements
orders of court. In section 158(1)(c) of
the Act the words “other than a collective agreement,”
clearly distinguishes collective agreements from
other settlement agreements. The wording suggests that
it is envisaged, that certain settlement agreements may
be collective agreements, and vice versa.
8] Whether a dispute about the “application” of a
collective agreement, referred to in section 24(1) of
the Act, would include the enforcement of a collective
agreement when it is breached, is a further question
which needs to be decided.
9] Enforcement of an agreement only becomes an issue
when there is some form of noncompliance with that
agreement. When a party wishes to enforce the
agreement it would be, at least inter alia, because it
believes the agreement is applicable to the party who
is in breach thereof. Therefore a “dispute about the
application of a collective agreement”
(section 24 (1) of the Act) applies to the situation
where there is noncompliance with a collective
agreement and one of the parties wishes to enforce its
terms. Consequently, the CCMA, and not the Labour
Court, should entertain disputes arising from the non
compliance with collective agreements.
10] The applicant therefore has to refer this dispute
to the CCMA because the breach of the agreement gives
rise to a dispute about the application of a collective
agreement which is also a settlement agreement. If
the dispute is not resolved through conciliation, the
CCMA may arbitrate this dispute about the
agreement, and any award then made, may be made an
order of the Labour Court.
11] I do appreciate that the applicant’s members are
in an akward position. I do not believe it was the
intention of the drafters of the Act that individual
employees in unfair dismissal disputes may have their
settlement agreements made orders of court, whereas
similar agreements between trade unions and employers
may not be enforced in the same way. I am however
bound by the wording and the provisions of the Act.
It would then also appear that agreements between trade
unions and employers reached at court, in respect of
urgent applications, or disputes about dismissals for
operational requirements, should not be made orders
of court or before following the conciliation and
arbitration route at the CCMA. This anomolous
situation clearly calls for legislative intervention.
12] The application is dismissed.
E REVELAS
Date of Hearing: 22 October 1999
Date of Judgement: 22 October 1999