IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case No:
J4694/01
In the matter between:
THE MUNICIPAL EDUCATION STATE HEALTH &
1 st Applicant
THE AMALGAMATED MUNICIPAL EMPLOYEES
2 nd Applicant
THE NATIONAL MUNICIPAL AND PUBLIC
3 rd Applicant
THE MUNICIPAL PROFESSIONAL STAFF
4 th Applicant
THE SOUTH AFRICAN ELECTRICAL WORKERS
5 th Applicant
THE NATIONAL PUBLIC SERVICE WORKERS UNION 6 th Applicant
THE NATIONAL UNION OF PUBLIC SERVICE & ALLIED
7 th Applicant
and
THE SOUTH AFRICAN LOCAL GOVERNMENT
1 st Respondent
THE INDEPENDENT MUNICIPAL & ALLIED
2 nd Respondent
THE SOUTH AFRICAN MUNICIPAL WORKERS UNION 3rd Respondent
THE SOUTH AFRICAN LOCAL GOVERNMENT
4 th Respondent
5 th Respondent
THE KEMPTON PARK TEMBISA METROPOLITAN
6 th Respondent
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JUDGMENT (delivered on 14 February 2002)
__________________________________________________________________
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REVELAS J:
1. On 15 November 2001, I granted an order in terms of a draft order, which read as
follows:
“1 That pending 30 June 2002:
1.1_ members of the fourth respondent that had concluded recognition and/or collective
agreements with the applicants that were in place prior to 31 October 2001, shall
provide the applicant with all such organizational rights as they may have enjoyed
under those agreements, and in particular to implement all shop order facilities in
favour of applicants in respect of the applicants’ member’s union subscriptions.
1.2_ The members of the fourth respondent be interdicted and restrained from making
an agency fee deduction in terms of the agency, shop agreement between the
South African Local Government Association (the fourth respondent) on the one
hand and the South Africa Municipal Workers’ Union (the third respondent) and
the Independent Municipal and Allied Trade Union (second respondent) on the
other hand dated 18 July 200 (“the agency shop agreement”) whether in its
original form or amended, in respect of the applicants’ members who are
employed by the respective members of the fourth respondent.
2. Declaring that should:
2.1 a recently registered trade union consisting of those membership portions of either
applicants or those of the applicants that fall within Local Government and which
fall within the aforesaid shops of the first respondent fail to make applications in
writing to the first respondent for admission as a party to the first respondent by
June 2002; or
2.2 the applicant fail by June 2002 to make an application to the Labour Court in
terms of section 56(5) of the Labour Relations Act, 66 of 1995, for an order
admitting the said applicants as parties to the first respondent, then the
respondents hall have the right on then days’ notice to the applicants, to set this
matter down for an order that the order in 1.1 and 1.2 be discharged.
3. Declaring that should a newly registered trade union as contemplated by 2.1 make
application as contemplated by paragraph 2.1 or alternatively should the
applicants make application to the Labour Court in terms of section 56(5) as
contemplated by paragraph 1.1 and 1.2 shall remain in force until the outcome of
the application in terms of section 56(5) of the Act.
4. Costs in the event of opposition to the order.”
2. The application was brought on an urgent basis and initially came before Jammy
AJ on 29 October 2001. The relief sought then was somewhat different to that
sought in the draft order. At the time the respondent filed an answering affidavit.
The matter was postponed to 14 November 2001, when I heard the matter.
Opposing papers were filed, but there was no appearance for the respondent on the
day. The respondents now wish to apply for leave to appeal against the order and
have requested reasons for the order.
3. The first applicant is the MUNICIPAL EDUCATION STATE HEALTH AND
ALLIED WORKERS’ UNION, whose members are employed by the fifth
respondent, the Klerksdorp Local Municipality.
4. The applicants’ membership comprises employees employed by Local
Government countrywide, and has approximately 5 084 members. The applicant
was formerly known as the NATIONAL UNION OF PUBLIC SERVICE
WORKERS (“NUPSW”) and was established in 1986.
5. According to the first applicant, at all material times until 1 March 2001, it was
recognised by a majority of local authorities in the provinces that made up the
erstwhile Transvaal. Among the municipalities who recognized the first applicant
was the fifth respondent, amongst whose employees the applicant has a significant
presence. The first applicant stated that this recognition was enjoyed in terms of a
recognition agreement based on the standard text that was negotiated between the
MUNICIPAL EMPLOYERS’ ASSOCIATION and the NUPSW. A copy of the
recognition agreement was attached to the papers. The recognition agreement was
not canceled. It gave the first applicant power to elect and establish structures for
tits proper functioning as a representative of the fifth respondent’s employees. It
was entitled to negotiate standard conditions of employment within the workplace,
to obtain stop order deductions, rights of access, and to participate in collective
bargaining on a wide range on issues within Local Government, including wages.
On 2 September 1997, agreement was concluded between the SOUTH AFRICAN
LOCAL GOVERNMENT BARGAINING COUNCIL (“the SALGBC”) and (the
first respondent), the second and third respondents. The second and third
respondents are two other municipal trade unions: SAMWU and IMATU. The
agreement made provision for the establishment of the INTERIM SOUTH
AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL, which was
registered as a bargaining council under the Act on 1 March 2001. Before its
registration it operated exclusively as an extrastatutory collective bargaining
forum. Since its registration it has operated fully as a registered bargaining council
under the statute. The second, third and fourth respondents were founding
under the statute. The second, third and fourth respondents were founding
members. They remain the only parties to the council.
6. During the first quarter of 2000 the first applicant made application to join the
fourth respondent, which was at that stage unregistered. The fourth respondent is
the SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION (“SALGA”).
The application was refused by the Interim Council on the basis that the first
applicant failed to comply with the requirements for admission (Inadequate
representation). Now that the Council has become registered the first applicant
intends renewing its application for membership.
7. During July 2000, an organizational rights agreement was concluded between the
second, third and fourth respondents under the aegis of the first respondent. They
also concluded an agency shop agreement in terms of which employees within the
Local Government sector who are not members of one or other of the two trade
unions (the second and third respondents), are obliged to pay an agency shop fee
which amounts to R47.00 per month. It was pointed out by the applicants that this
amount was nearly double the monthly subscription of R25.00 per month than
paid by the applicants’ members. The first applicant stated that neither it nor its
members has adopted, ratified or otherwise assumed, obligations under the agency
shop agreement. Towards the end of March 2001 the fifth respondent made
deductions of the agency shop fee from members of the first applicant in its
employ. The first applicant contends that these deductions were improperly and
illegally made for the reason that it was in breach of s 25(3) of the Labour
Relations Act, 66 of 1995 (“the Act”) and that it was in breach of s 34 of the Basic
Conditions of Employment Act, 75 of 1997 (“the BCEA”). Furthermore,
according to the first applicant, the deductions were impermissible in terms of the
agency shop agreement itself because the agreement had not yet come into
operation.
8. The application was also brought on the basis that it was anticipated by the first
applicant that the fifth and sixth respondents, as employers of the first applicant’s
applicant that the fifth and sixth respondents, as employers of the first applicant’s
members, would from 1 November 2001, deny the first applicant organizational
rights that it had until then enjoyed in terms of a collective agreement, and that
simultaneously agency fee deductions would still be made. This had been
conveyed in a letter to the first applicant before.
9. The applicants to this application have formed the MUNICIPAL EMPOYEES’
ALLIANCE on the basis that they all operated on the Local Government sector
and enjoy membership at workplaces at employers that are members of the fourth
respondent. The applicants allege that in aggregate, they represent approximately
20 000 employees employed by the Local Government countrywide. This is
denied by the respondents in their answering papers.
1. 10. The first applicant has previously launched two applications under Case
Numbers J1197/01 and J1198/01, with the objective to secure certain
organizational rights that were denied by the respondents. On 12 June 2001, and
pursuant to the launch of the aforesaid applications, which were also brought on
an urgent basis during April 2001 and June 2001, an agreement of settlement was
concluded. The consolidation of the second to the seventh applicants as
beneficiaries to the settlement agreement, according to the respondents arose by
agreement between the parties to avoid further litigation.
11. It was recorded in the settlement agreement that:
“1. Litigation is under way to:
1.1_ contest the validity of the agency shop agreement dated 18 July 2000 concluded
between the Independent Municipal and Allied Trade Union and the South
African Municipal Workers’ Union (“the respondent union”) and the South
African Local Government Association (“SALGA”);
1.2_ enforce facilities agreements between the following trade unions being
Amalgamated Municipal Employees’ Union, National Municipal and Public
Servants Workers’ Union, municipal Education State and Allied Workers’ Union,
National Public Service Workers’ Union, National Union of Public Service and
Allied Workers’ Union (“the applicant unions”) as well as the Municipal
Professional Staff Association (“MPSA”) and the members of SALGA, two of
which have been individually cited int eh proceedings.
2. The parties desire to resolve the litigation in the expectation that:
2.1 the agency shop agreement is to be amended to bring it into conformity with the
Labour Relations Act;
(a) SALGA members intended to give notice to terminate the facilities agreement in
respect of the applicant union by the fluctuation of time;
(b) it is recorded that SALGA members have given due notice of termination of
facilities agreement with MPSA.
(a)
3. It is recorded that the applicant unions and MPSA intend to make application for
the admission tot he South African Local Government bargaining council on 15
June 2001 and/or bringing proceedings to contest the validity under the
Constitution or otherwise of the agency shop agreement that has been concluded
in its existing or amended form.
4. The South Africa Local Government Bargaining Council (“the SALGBA”) and its
member parties are willing to give the applicant unions and MPSA a limited
amount of time to
4.1 make application for admission to the said bargaining council; and/or
4.2 to launch proceedings referred to”
11. The agreement also recorded that the first applicant would withdraw Cases Nos
J1197/01 and J1198/01. The SALGBC (the first respondent) and its members
undertook, in terms of the agreement:
“3.1 Not to make agency fee deductions in terms of the agency shop agreement,
whether in its current form or as amended, in respect of the members of the
applicant unions as well as those of MPSA until the earlier of
3.1.1 one month after decision by SLGBC on the application for admission to the
bargaining council as aforesaid; or
3.1.2 31 October 2001"
12. 31 October 2001 was the date referred to as the termination date in terms of the
agreement. Until the termination date, the members of SALGA would continue to
observe facilities agreements concluded with the applicant unions as at March
2001. Until the termination date the members of SALGA would adjust the
monthly remuneration payable to the members of the applicant unions and the
MPSA by including in such remuneration, by way of a refund, an amount
equivalent to any deductions made from them under the agency shop agreement.
The monthly remuneration would be adjusted by SALGA until the implementation
date to members of the applicant unions by deducting such union dues as should
have been paid to the applicant unions but were not, o the assumption that the said
facilities agreements were and remain of full force and effect.
13. The settlement agreement was made an order of court.
14. During June 2000 the applicants acted together and formed an alliance known as
the MUNICIPAL EMPLOYEES’ ALLIANCE (“the MEA”) and applied for
membership of the first respondent. On 28 December 2001 the first respondent, in
writing, refused the application brought by the MEA for membership of the first
respondent. The application was turned down on the basis that s 57 of the Act does
not make provision for an alliance to apply for membership of a bargaining
council and, even if it were accepted, that the membership figure supplied by the
applicants were correct, they fell far short of the minimum threshold required by
the first respondent in terms of its consitution.
15. In terms of the constitution of the first respondent, the first respondent has the
power, inter alia ,
“regulate through collective agreements, the thresholds for representivity for the
exercise of organizational rights by trade unions within the sector ”
and to
“enter into collective agreements on organizational rights and on agency shop or
closed shop agreements within the sector”
16. In paragraph 33 of the applicants’ founding papers, the applicants state that they
are in the process of amalgamating and it is expected that when application is
made to this Court in terms of s 56(6) of the Act, this application will be made by
way of only one new registered trade union, which union will constitute an
aggregation and amalgamation of the present applicants. The applicants further
state (in paragraph 6 of the founding papers) that by the time of the application in
terms of s 56(5) the applicants shall be able to verify that their membership would
not fall short of the representivity threshold set by the first respondent and that it
would be equal, if not greater, than the 15% required by the first respondent’s
constitution.
17. At this stage, I must point out that it is not possible to determine the membership
at this stage since several municipalities are to be considered in the calculation of
the total amount of employees.
18. The applicants also contend that the threshold for its representivity of 15% set by
the first respondent is to high, and the threshold is both contrary to the express
object and provision of the Labour Relations act that it offends those sections of
the Constitution which provides for freedom of association and the right to form
trade unions and to participate in the activities and programs of a trade union and
that every trade union has the right to engage in collective bargaining [sections
9(2), 18, 23 of the Constitution].
19. I agree with the contention contained in the respondents’ answering affidavit that
the application was based on facts which are at this stage speculative. The order
was made pending a date in June 2002; it was granted on the basis of urgency
even though the applicants could not verify, at this interim stage, what their
numbers were, the applicants made out a case on the papers for the granting of the
relief granted. If the relief was not granted, the applicants’ rights to freedom of
association would be seriously affected, and there would be no opportunity given
to ventilate the matter as it should be with regard to the application in terms of s
56(5) of the Act.
20. The applicants applied for an extension of the agreement on 15 October 2001,
which was refused. Not granting interim relief would have had the effect that stop
order facilities would have been terminated immediately in favour of the
applicants, which would deprive them of their source of income; the future
existence of the applicants would have been placed in jeopardy and union officials
in the employ of the applicants would have to be retrenched. The applicants would
have ceased to exist and the situation would be exacerbated by the fact that the
fifth and sixth respondents and other local authorities, by depriving applicants of
all organizational rights, would render them unable to communicate with their
membership and securing payment of their union membership fees. The proposed
monthly agency fee of R47.00 is greater than the monthly union subscription fees
of the applicants. The applicants correctly made the point that the effect of
implementation of the fee would mean either mass resignation from the applicants
by the membership or a refusal by the applicants’ members to pay their
membership fees.
21. In the circumstances I granted the order.
22. At this stage it is necessary to point out that there was an error in the draft order.
The order in respect of costs read “ costs only in the event of opposition ”. Although
the respondents did not appear on the day of the hearing, they nonetheless filed
the respondents did not appear on the day of the hearing, they nonetheless filed
affidavits, therefore the respondents are obliged to pay the applicants’ costs.
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E. Revelas
On behalf of the applicants’: Mr. G Higgins
SAMPSON OKES & HIGGINS
ATTORNEYS