IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO. J575/00
In the matter between:
THE PUBLIC SERVICE CO-ORDINATING Applicant
BARGAINING COUNCIL
and
PROFESSOR JOSEPH MASEKO N.O. First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
PUBLIC SERVANTS ASSOCIATION Third Respondent
NATIONAL UNION OF PROSECUTORS Fourth Respondent
OF SOUTH AFRICA
MINISTER OF PUBLIC SERVICE Fifth Respondent
AND ADMINISTRATION
________________________________________________________________________
JUDGMENT
________________________________________________________________________
JAMMY AJ
Introduction.
1.For the sake of convenience I shall hereafter refer in this judgment to the Second
Respondent as "the CCMA", to the Third Respondent as "the PSA" and to the
Fourth Respondent as "NUPSA".
2.The Applicant, the Public Service Co-ordinating Bargaining Council, is a bargaining
council for the public service, established in terms of Section 36(1) and
registered in terms of Section 29 of the Labour Relations Act 1995 ("the Act"). It
seeks in this application an order reviewing and setting aside an arbitration
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award dated 31 December 1999 made by the First Respondent in his capacity as
a Commissioner of the CCMA in arbitration proceedings between the PSA as
applicant and the Applicant in this matter as respondent.
3.The nature of the dispute referred by the PSA to the CCMA for conciliation in terms of
the Act was described by it in the referral form (Form 7.11) as follows:
"The failure of the State as employer and the Public Service Co-ordinating
Bargaining Council to give effect to and implement an agreement to act
jointly between the Public Servants Association and the National Union
of Prosecutors of South Africa."
The outcome of that reference sought by the PSA was:
"That the State as employer give effect to the agreement to act jointly by the PSA
and NUPSA by amongst other, instructing Persal to immediately stop
with agency shop deductions from the salaries of members of NUPSA."
4.A conciliation meeting was duly convened by the CCMA but failed to resolve the
dispute. A "Certificate of Outcome of Dispute Referred for
Conciliation" was issued by the conciliating Commissioner on 7 April 1999 in which she
described the unresolved dispute as concerning:
"...The failure by the State as employer and the PSCBC to give effect to and
implement an agreement to act jointly between the PSA and the
National Union of Prosecutors of S A."
5.Pursuant thereto, the PSA on 13 April 1999 lodged with the CCMA a formal "Request
for Arbitration" in terms of Section 136 of the Act. The nature of the dispute was
described in identical terms to those used in the initial Referral and the decision
sought from the Commissioner was stated to be :
"An order directing the PSCBC and the employer party to the PSCBC to grant full
recognition to the decision of the PSA and NUPSA to act jointly by
immediately stopping all agency fee deductions from the salaries of
members of NUPSA retrospectively from 1 July 1998 and all other steps
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necessary to give effect to that decision."
6.An analysis of the gravamen of the dispute and the outcome sought by the PSA in
the statutory dispute resolution procedures invoked by it necessitates, in my
view, an examination of the relevant contractual and statutory provisions on
which they are based.
The first is Section 25 of the Act, the relevant provisions of which are these:
25 Agency shop agreements
(1)A representative trade union and an employer or employers organisation may
conclude a collective agreement, to be known as an agency shop
agreement, requiring the employer to deduct an agreed agency fee
from the wages of employees identified in the agreement who are not
members of the trade union but are eligible for membership thereof.
(2)For the purposes of this section, "representative trade union" means a registered
trade union, or two or more registered trade unions acting jointly,
whose members are a majority of the employees employed -
by an employer in a work place; or
b)by members of an employers organisation in a sector and area in respect of which the
agency shop agreement applies."
7.The powers and functions of bargaining councils are defined in Section 28 of the Act
and include the conclusion and enforcement of collective agreements. Disputes
about the interpretation or application of collective agreements where, as in the
case of an agency shop agreement, they do not incorporate dispute resolution
procedures, are governed by Section 24 of the Act which entitles any party to the
dispute to refer it to the CCMA. The relevant subsections read:
(3) The party who refers the dispute to the Commission must satisfy it that a
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copy of the referral has been served on all other parties to the dispute.
(4) The Commission must attempt to resolve the dispute through conciliation.
(5) If the dispute remains unresolved any party to the dispute may request that
the dispute be resolved through arbitration."
As will be apparent thus far, that was the statutory procedure invoked by the PSA.
8.Section 134 of the Act provides for the reference of a dispute about a matter of
mutual interest to be referred in writing to the Commission, with the requirement
that a copy of that referral must be served on all other parties to the dispute.
9.Section 56 of the Act deals with admission of parties to a bargaining or statutory
council. Its relevant subsections are the following:
"(1) Any registered trade union or registered employers organisation may apply in
writing to a council for admission as a party to that council.
(2)The application must be accompanied by a certified copy of the applicant's
registered constitution and certificate of registration and must include
a)Details of the applicant's membership within the registered scope of the council...
(3)A council, within 90 days of receiving an application for admission, must decide
whether to grant or refuse an applicant admission, and must advise the
applicant of its decision, failing which the council is deemed to have
refused the applicant admission.
(4)If the council refuses to admit an applicant it must within 30 days of the date of the
refusal, advise the applicant in writing of its decision and the reasons
for that decision.
(5)The applicant may apply to the Labour Court for an order admitting it as a party to
the council.
(6)The Labour Court may admit the applicant as a party to the council, adapt the
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constitution of the council and make any other appropriate order."
10.The Applicant's constitution was adopted by the founding parties thereto on 13
October 1997, the date upon which the Applicant was registered in terms of
Section 29 of the Act. Section 2 of that constitution is the definition section and
in terms of subsection 2.1.(j):
"Trade Union" shall carry the definition as set out in the Act and shall also mean:-
i)A trade union having organisational rights with an employer falling within the
registered scope of the Council; or
ii)Two or more registered trade unions having organisational rights with an employer
falling within the registered scope of the Council, acting together as a
single party."
11.Material to this application are the provisions of clauses 6.2 and 6.3 of the
constitution, which read as follows:
"6.2Application for admission of further parties to the council shall be made in writing
on the form attached as annexure "A" and shall be considered and
decided upon at a meeting of the council according to the following
criteria:
a)An applicant must be a trade union registered in accordance with the provisions of the
Act and this constitution.
b)The Applicant trade union must represent at least 20 000 employees within the
registered scope of the council as members in good standing.
6.3If two or more trade unions that are registered and have organisational rights with
an employer, falling within the registered scope of the council, act
together to meet the admission criteria to the council then those trade
unions may be represented in the council as single party."
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The import of clause 6.3 is therefore that two trade unions, neither of which satisfies
the 20 000 membership threshold prescribed in clause 6.2 (b), but whose
aggregate membership attains or exceeds it, may combine in order to meet the
admission criteria to the council (my emphasis) and be represented in the
council as a single party. That mechanism would serve as well to procure the
vicarious representation on the council of a trade union with inadequate
membership in its own right and which, in the terminology of the constitution,
acts together with a non-member but qualifying trade union in order to satisfy
the admission criteria of the council and be represented therein as a constituent
element of a single party.
12.It is common cause that an agency shop agreement, in conformation with Section
25 of the Act, was concluded by the parties in the Applicant, including the PSA,
on 26 May 1998 and came into effect on 1 July 1998. Expressly applicable to the
employer and all employees employed by the State and falling within the
registered scope of the Applicant, its objective was stated "to ensure that all
employees who receive the benefits of collective bargaining contribute towards
its costs." Agency fee deductions, in terms thereof must be made by the
employer (the State)
".. from the basic salary of each of its employees who are not members of any one of the
trade union parties to the council"
Exemption from that provision may be applied for in writing to the council by any
employee who "conscientiously objects to being associated with or paying
contributions to .... associations" and may only be granted by agreement of the
council.
13.NUPSA is a registered trade union which is not a party to the Applicant and whose
members were in consequence liable for the compulsory payment, effected by
way of deduction from their salaries, of the agency fee prescribed in the agency
way of deduction from their salaries, of the agency fee prescribed in the agency
agreement. Its resistance to that obligation could not be addressed by
independent application for admission to the Applicant as a party since its
audited membership at the relevant time was 896, as against the requisite
minimum of 20 000. It has not been suggested that its members or any of them
sought exemption from the agency fee obligation by way of conscientious
objection.
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14.If therefore its members were to be absolved from the agency fee liability, some
other device to procure this would of necessity have to be found and, with that
acknowledged objective, NUPSA and the PSA concluded an oral agreement, the
substance of which was conveyed to the Applicant by the PSA by a letter dated 3
July 1998 in the following terms:
"Acting jointly:PSA and NUPSA
Please take note that the PSA and the National Union of Prosecutors of South
Africa (NUPSA) have decided to act jointly in the Public Service Co-
ordinating Bargaining Council as provided for in clause 2.1(j) of the
Constitution of the Council and as also mentioned in Section 25(2) of
the Labour Relations Act 1995.
It is confirmed that both the trade unions have organisational rights and a
certificate from an auditor confirming the
membership of NUPSA to be 896 members as well as the Certificate of
Registration as Trade Union of NUPSA are attached. These documents
in respect of the PSA are already on record.
It will be appreciated if the matter could be brought to the attention of the
Council as soon as possible."
15.A consequence of that agreement, the PSA contends, is that the members of
NUPSA, which indisputably retained its identity as an independent registered
trade union, but which was now a constituent of a single party admitted in the
council, were exempted from paying the agency shop fee.
16.The Applicant replied succinctly to that communication in a letter to the PSA dated
13 January 1999 in which it said :
"We hereby wish to acknowledge receipt of your correspondence whereby you
indicate your intentions to act jointly with NUPSA.
Please be informed that Council deliberated on the matter and the following
decision was taken:
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*Council notes that PSA is already admitted as a members of the PSCBC.
*Council has no jurisdiction or authority to interfere in internal arrangements made
between unions that are party to Council and those that are not."
In the result the PSA acting together with NUPSA was not admitted as a member party
of the Applicant and agency fees continued to be deducted from NUPSA's
members in terms of the agency shop agreement.
17.That, in essence, constituted the dispute referred by the PSA to the CCMA for
statutory resolution.
18.The award eventually made by the First Respondent incorporated a number of
conclusions, findings and orders. In summary, they were the following:
18.1The PSA, following the oral agreement in question, emerged and regarded itself "as a
new entity consisting of the PSA and NUPSA". In terms of the constitution, the
First Respondent held, "the PSA and NUPSA qualify to act as they did and are
actually a valid entity based merely on their agreement".
18.2NUPSA members should not continue to be charged agency shop fees in the context of
their union's agreement to act jointly as one entity with PSA. In that regard -
"They have done all that is required to convert or transform themselves into a new
entity that consists of
both NUPSA and PSA and has notified the PSCBC of their new status to each other and
to the PSCBC. And the approval of the PSCBC is not sought or necessary
here. At least as the Constitution stands and as the definition of trade
unions stands in the Constitution of the Respondent".(sic)
18.3It was unnecessary for the PSA to have applied to Court for admission into the PSCBC.
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PSA was already a member and while NUPSA is not they "did not apply for
admission, and nor do they wish to". They were entitled, said the First
Respondent, "to be treated as a trade union in the PSCBC together with PSA, and
the PSCBC has been notified of that fact. And that is all that is required."
19.In the result, the First Respondent determined:
19.1The agreement between the PSA and NUPSA to act together "as envisaged in the
provisions of Section 25(2) of the Act constitutes a lawful agreement".
19.2The PSCBC was to recognise, give effect to and implement its provisions.
19.3The PSCBC was to take appropriate measures to ensure that all deductions of agency
fees from the salaries of members of NUPSA be terminated from the date of the
award and deductions made since July 1998 were to be repaid.
19.4Finally the PSCBC was advised "to respect the terms of their own constitution", at the
risk "of appearing frivolous and vexatious".
The issues
20.20.1The Applicant submits that the First Respondent's award in question is reviewable
and should be set aside on a number of grounds. In the first instance, it
contends, the First Respondent exceeded his powers, alternatively committed a
gross irregularity in finding that he had jurisdiction to arbitrate the dispute
between the parties.
20.2Secondly it is contended, he failed adequately or at all to have regard to and to take
into account for the purpose of his determination, relevant principles of law,
relevant provisions of the Act, relevant provisions of the Applicant's constitution
and relevant provisions of the agency shop agreement. These, it is submitted,
were misconstrued by him to so material an extent as to indicate "a failure on his
part to apply his mind properly to those provisions and the considerations that
arise in relation to them".
21.21.1The issue of jurisdiction is premised on the First Respondent's alleged failure to
21.21.1The issue of jurisdiction is premised on the First Respondent's alleged failure to
consider whether or not the party seeking relief was one that could be
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recognised as a matter of law as having locus standi to institute dispute or any
other proceedings and to seek consequential relief.
21.2Secondly, in that context, the PSA failed to serve a copy of the referral of the dispute on
the State as employer as required by Section 134(2) of the Act, to which I have
made earlier reference in the context of the resolution of disputes about matters
of mutual interest.
21.3Thirdly, the oral agreement between PSA and NUPSA, it is contended, is not a collective
agreement regarding which a dispute falling within the ambit of Section 24(5) of
the Act could be resolved by arbitration under the auspices of the Second
Respondent.
21.4Finally, neither the Act nor the Applicant's constitution vested in the First Respondent
the power, exclusively reserved for the Labour Court, to determine a dispute
relating to the admission or otherwise of a party within the council.
22.I do not propose, for reasons which will become apparent, to deal with those
allegations in the order in which they have been pleaded. The necessity to
address them by way of more than passing reference will,
in my view, hinge on my determination of what I perceive as the cardinal challenge,
that relating to the First Respondent's finding that the oral agreement between
PSA and NUPSA to act together is one in compliance with the Act and the
Applicant's constitution, and to the consequences thereof.
23.The Applicant's constitution, as I have said, includes in its definition of "trade union"
two or more unions with organisational rights with an
employer within the registered scope of the employer, acting together as a single
party. I have also made earlier reference to clause 6.3 of that constitution in
terms of which two or more registered trade unions with organisational rights
may act together to meet the admission criteria to the council and once
admitted, may be represented in the council as a single party.
admitted, may be represented in the council as a single party.
24.It is common cause that at an early stage of the arbitration hearing, the First
Respondent was referred to the unreported judgment of this Court in National
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Police Service Union v Public Service Co-ordinating Bargaining Council
& Others (Case no. J2479/98).
At paragraph 17 of that judgment, Zondo J (as he then was) said this:
"In order to meet the threshold of 20 000 members set by the First Respondent,
the Applicant seeks to use a trade union whose membership has
already been taken into account when that trade union got admitted as
a single party with other unions. To allow that would defeat the
purpose of setting the threshold.
....If the Applicant's contention that it can use a trade union which has already
been admitted to the council either by itself or jointly with another
trade union were upheld, the purpose of setting a threshold so as to
ensure that each party that is admitted represents membership of the
fixed size, would be defeated. A trade union in this situation cannot in
my view act jointly with a union that has already been admitted with or
without another union. I am therefore of the view that the Executive
Committee of the Respondent was quite correct in adopting the view
that they did, namely,
that the Applicant could not be admitted on the basis of clause 6.3 where the
union with which it had an agreement for purposes of clause 6.3 was a
trade union that was already a party to the council."
25.As will be apparent, the First Respondent in that case is the Applicant in this matter
and the reference to clause 6.3 in the extract from the judgment to which I have
referred relates, as in this matter, to that specific clause in its constitution.
26.It is also not disputed that nowhere in the arbitration award in question does the
First Respondent refer to, distinguish, approve or otherwise deal in any respect
with that judgment. The reason for this, the Third Respondent submits, is that he
did not need to. The notification by the
Third Respondent to the Applicant of 3 July 1998, it contends, was not, and was not
intended to be, one made pursuant to the provisions of clause 6.3 but solely in
intended to be, one made pursuant to the provisions of clause 6.3 but solely in
terms of clause 2.1(j) of the constitution read with Section 25(2) of the Act. That
was expressly stated to be the case in the letter referred to and in the course of
the evidence presented to the First Respondent, the Third Respondent did not
seek to dispute the objective of that agreement, which as testified to by Mr J A
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Louwrens, its deputy general manager,
".....would mean that the members of NUPSA being party of the single party, the
single union, would then be free and not have the agency shop fee
deducted from their salaries."
27.It is for the express purpose of the conclusion of an agency agreement with an
employer or employers' organisation in terms of Section 25(1) of the Act, that
two or more registered trade unions may, in terms of Section 25(2), act jointly to
constitute the representative trade union which will be the other contracting
party. The PSA in its own right however was, at the time that its oral agreement
with NUPSA was entered into, already an admitted member in the Applicant in its
own right and in that capacity, a party to the agency shop agreement of 26 May
1998. Mr J A Louwrens, on behalf of the Third Respondent is a signatory to that
agreement. In that context, Section 25(2) of the Act could have had no relevance
to that agreement. On any interpretation, in my view, it will only have
application, for the purpose of the section, where not any of the two or more
registered trade unions therein referred to, was, at the time of their joint action,
already a party to the contemplated agency shop agreement.
28.With reference to the definition in clause 2.1(j) of the Applicant's constitution, the
First Respondent purports to analyse critically the Applicant's submission that
the purpose of the oral agreement between the Third and Fourth Respondents
was to act together in order to gain admission to the council in terms of clause
6.3. In paragraph 9 of his award he says this:
"Here there seems to be an assumption that NUPSA and PSA opted 'to act together for the
purpose of gaining admission'.
Again there is nothing in the constitution that suggests that this should be the purpose to
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act together or that acting together actually means becoming one trade union.
My view is that the two unions could act together for such admission as
well as for any other reason"(my emphasis).
Stated differently and as the First Respondent later in his award determines, two
unions, even if one of them is already numerically qualified, can, in his view, by
the simple expedient of an oral agreement, reconstitute themselves as a single
trade union qualifying for membership in the Applicant council with all the
consequences thereof including the benefit to the otherwise disqualified union, of
exemption of its members from payment of the agency fee. That, on the basis of
the First Respondent's own conclusion, is a contradiction in terms. The oral
agreement, he states at paragraph 10(1) of his award, resulted in the creation of
"a new entity consisting of the PSA and NUPSA and in that context
"NUPSA had done all that is required to convert or transform themselves into a new entity
that consists of both NUPSA and PSA."
29.The necessary inference from that conclusion is that in some way or other, NUPSA
has lost its identity but the very basis of the dispute between the parties negates
that perception. NUPSA did not cease to exist and could not, through the medium
of purported joinder with a trade union member of the Applicant, acquire such
membership and thereby be constituted as a party to the agency shop
agreement with the applicable exemption consequences.
30.Quite apart from his own perception of its validity moreover, the First Respondent's
conclusion, to which I have made earlier reference, that " ...the two unions
could act together for such admission..." , flies directly in the face of the
determination of this Court to the contrary in National Police Service Union v
The Public Service Co-ordinating Bargaining Council & Others (Supra) ,
notwithstanding that he was specifically referred thereto.
notwithstanding that he was specifically referred thereto.
31.In Le Roux v Commissioner for Conciliation, Mediation & Arbitration &
Others (2000) 21 ILJ 1366(LC) Wallis AJ said this:
"In the result the commissioner came to the conclusion that he was entitled to
disregard a judgment of this court "where a slavish adherence to that
precedent would result in gross injustice".
That view is not correct and must be rejected. The whole structure of the LRA
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places the Labour Appeal Court at the pinnacle of the pyramid of
adjudicative bodies established under that Act, In terms of s167 of the
LRA it is established as a court of law and equity sitting as a final court
of appeal in matters under its jurisdiction and having authority,
inherent powers and standing equivalent to that of the Supreme Court
of Appeal. Below the Labour Appeal Court sits the Labour Court which
within its sphere of jurisdiction corresponds to the court of a provincial
division of the High Court of South Africa. The CCMA and commissioners
sitting as arbitrators in terms of the LRA are tribunals performing their
functions in terms of the LRA and subject to review by the Labour
Court.
It is erroneous to suggest that the jurisdiction of a commissioner sitting as an
arbitrator differs on questions of law from the authoritative
pronouncements of this court and the Labour Appeal Court.
Commissioners are as much bound to follow and apply the judgments of
this court as the Magistrate's Courts are obliged to follow and apply the
judgments of the High Court (Credex Finance (Pty) Ltd v Kuhn 1977 (3)
SA 482(N) at 485A-G)."
32.The First Respondent was bound by the judgment of this Court in National Police
Service Union but, as I have said, not only made no attempt to distinguish it,
but disregarded it altogether.
33.I am left in no doubt that the manner in which the First Respondent addressed the
issues of the interpretation and application of the collective agreements in
question in this matter and what in my view can only be described as his
superficial and at times high-handed rejection of the Applicant's submissions in
that regard, go further than constituting mere mistakes of law which might
otherwise not have been reviewable. They indicate to me a failure on his part to
apply his mind to those issues to an extent constituting gross irregularity. In his
apply his mind to those issues to an extent constituting gross irregularity. In his
disregard of a binding labour court judgment in direct contradiction of the
conclusions reached by him moreover, the First Respondent blatantly exceeded
his powers.
34.It is unnecessary, in these circumstances, for me to traverse in any particular, the
other grounds of review submitted by the Applicant. The locus standi of the Third
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Respondent in the arbitration proceedings does not appear to have been an
issue raised at that time. The failure however of the Third Respondent, as
Applicant in the arbitration proceedings, to have cited the State as a party
thereto in its capacity as the employer with what, in my opinion, was unarguably
a direct interest in the substance of the dispute and its resolution would,
standing alone, have thrown the jurisdiction of the Third Respondent to be
properly seized of the matter seriously into question. In my view however no
further analysis of that aspect of the matter is necessary.
35.For the reasons which I have stated therefore, the First Respondent's award cannot
be sustained and the order which I accordingly make is the following:
35.1The arbitration award by the First Respondent dated 31 December 1999 in CCMA case
number HO112 is reviewed and set aside.
35.2The Third Respondent is to pay the Applicant's costs, including the costs of two Counsel.
------------------------------------
B. M. JAMMY
Acting Judge of the Labour Court
25 October 2000
Date of Hearing: 4 October 2000
Representation:
For the Applicant:Advocate K S Tip SC, with him
Advocate T J Bruinders instructed by
Nicholls, Cambanis & Associates
For the Respondents:Advocate E S J Van Graan, instructed by Cecile Botha Attorneys
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