IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: J2397/02
In the matter between:
RUSTENBURG BASE METAL REFINERS
First Applicant
PRECIOUS METALS REFINERS
Second Applicant
and
THE NATIONAL UNION OF MINE
First Respondent
THE NATIONAL UNION OF METAL
WORKERS OF SOUTH AFRICA Second Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Third Respondent
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REASONS FOR J U D G M E N T
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1 In this judgment I shall refer to the Applicants as “ the Employers ” and the First
and Second Respondents severally as “ the Unions ”. The Employers launched an
urgent application which came before the Labour Court on 26 June 2002. On 27
June I dismissed the application with costs. The reasons for that order are
furnished herewith.
2 The material relief sought by the Employers was as follows:
“2 Declaring that the First and Second Respondents are in breach of Clause 5.2.8 of
the Employer Relations Policy Agreement (ERPA) entered into between the
Applicants on the one part and the First and Second Respondents (and other
Unions and associations) on the other part, during March 2002 in referring a
dispute concerning the implementation of the Platinum Health as a medical aid
for the Applicants’ employees and who are members of the First and Second
Respondents (the dispute).
3 Interdicting the First and Second Respondents from continuing to process the
conciliation of the dispute in terms of Section 134 or any other provision of the
Labour Relations Act 66 of 1995 as amended, in the CCMA.
4 Directing the Third Respondent not to conciliate or take any further steps in
relation to the disputes having been referred to it by the First Respondent under
reference number NW 3021/02 and the Second Respondent under reference
number NW 3043/02. ”
3 When this application come before me, at the instance of the Unions, the papers
in related litigation, between the Employers and the Unions in case number
J1697/02 was also placed before me. In that matter, Zilwa AJ on 2 May 2002 had
given an order by default, in the following terms:
“ 3.1 Pending the final determination on an application to be launched by
the Applicants for declaratory relief concerning the implementation of the health
management organisation:
3.1.1 The Third Respondent (the CCMA) is interdicted and restrained from holding
conciliation proceedings in relation to the referral submitted to it by the First
Respondent under reference numbers NW 2150/02 and NW 1971/02 and by the
Second Respondent under reference numbers NW 1892/02 and NW 2197/02;
3.1.2 The First and Second Respondents are interdicted and restrained from promoting,
inciting and instigating their members to participate in any unlawful industrial
action in relation to the implementation by the Applicants of the Health
Management Organisation.
3.2 The Applicant shall launch a substantive application for declaratory relief
concerning the implementation of the Health Management Organisation by no
later than Monday 13 May 2002, failing which the orders in paragraph 1 above
shall forthwith lapse and give no force and effect.
3.3 The costs of this application shall be reserved for determination by the
Court hearing the substantive application.”
4 The Unions, in placing the matter before me on 26 June 2002 sought to oppose
“the granting of final relief ” in this related matter. The relevance of this order and
the facts of this related matter appears from what follows.
5 The parties have been at loggerheads for a considerable time concerning an
appropriate medical aid regime to apply to the relevant body of employees. Apart
from the two applications already referred to, a third came before Francis J and is
reported as Rustenburg Base Metal Refineries (Pty) Ltd v NUM and others (2002)
23 ILJ 935 (LC). That decision dealt with claims by the Employers of a
managerial right pursuant to the contracts of employment to vary the identity of
the provider of medical aid for the workers who were members of the unions. In
addition to these encounters there have been other jousts that have occupied the
attention of both parties and this Court.
6 Because of the view I take of the matter, it is not necessary to burden this
judgment with details of the opinions of the Employers and of the Unions
concerning the various ideas and proposals which have formed the subject matter
of the debate concerning an appropriate medical aid regime for the body of
employees.
7 The Employers, in their founding affidavit set out the basis of their complaint
about the conduct of the Unions, which led up to the relief being sought as set out
above. The gravamen of the complaint is that the Unions are unwilling to engage
constructively in any process of interaction in order to resolve the controversy
over the medical aid regime, and are intent on moving towards the point where
they will be able to embark on a protected strike. It is said that there is an intention
to launch a strike as early as they can after a meeting scheduled for 4 July 2002.
Extensive discussions have already occurred which produced little progress in the
direction of a resolution, whereupon, on 28 May 2002, the unions referred a
dispute in the prescribed form to the CCMA in the following terms:
1 “The employer changed or seeks to change employees from their current
medical aid schemes to Platinum Health, a Health Management Organisation. ”
8 It is averred by the Employers that the subject matter of these referrals is
indistinguishable from the subject matter of the referrals which were interdicted
by Zilwa AJ in the case mentioned above. At the time of the order by Zilwa AJ,
the Unions undertook to withdraw all the referrals which were mentioned in the
order of Zilwa AJ, and did so. It is averred that the conduct of the Unions in
referring the same subject matter, albeit in different referrals, constitutes bad faith
and is in violation of the order of Zilwa AJ.
9 Moreover, it is said, the Unions and the Employers had during March 2002
concluded the Employee Relations Policy Agreement (the ERPA). Clause 5.2.8 of
the ERPA, in particular, requires the signatories “ in the event of a dispute arising
out the provisions of this agreement, including interpretation and application” to
refer the dispute to a domestic dispute resolution forum styled “ the Partnership
Forum”. Clause 5.2.10 provides that only when the parties in dispute “ are
unable to reach agreement on a process and terms of reference to resolve the
dispute they may exercise their rights in terms of the Labour Relations Act. ”
Having regard to those reciprocal obligations, the Employers contend that the
Unions are in breach of their undertakings in terms of the ERPA. In paragraph 72
of the founding affidavit the statement is made:
“The referrals are unlawful in that they are made in breach of the ERPA. This
conduct by the (Unions) undermines the institution of collective bargaining.
Clearly they must refer the dispute and ventilate the dispute in terms of the agreed
procedures set out in Clause 5.2.8 of the ERPA. ”
Further in paragraphs 74 and 75 of the founding affidavit it is stated that:
“ ... the categorisation of the referred disputes as disputes of mutual interest have
been engineered by the Unions to circumvent the substantive application. (This is
a referral to the procedure which received the imprimatur of this court in the order
of Zilwa AJ.) The fact that these disputes are categorised as disputes of mutual
interest, does not differentiate these referrals from the previous referrals as it
relates to the same matter (implementation of Platinum Health) and more
importantly ‘matters of mutual interest’ is still a basis for the Unions to
commence with industrial action.
... The dispute referrals by the Unions is in exceptional bad faith. The
Unions placed the medical aid issue as a demand in the wage negotiation process
and are therefore precluded from proceeding with these referrals until the central
collective bargaining forum has officially reached deadlock on this issue and the
dispute procedure as set out in terms of Section 5.2.8 of the ERPA has been
exhausted.”
10 The essence of the controversy is plain: the Employers’ perspective is that the
Unions should confine the action which they take in pursuing their point of view
on the question of the medical aid regime to that prescribed in the domestic
dispute resolution procedures until such procedures are exhausted, and only then
invoke their “ rights under the Labour Relations Act, ” which is another way of
saying that they may then take the necessary steps which are imposed on them by
the Labour Relations Act in order to conduct a protected strike. The nature of the
relief sought therefore is a classic example of an order for specific performance,
in this case, of the Unions’ alleged obligations under the ERPA.
11 The answer filed on behalf of the Unions asserts that the refusal of the Unions to
ventilate this particular dispute in the partnership forum set up under the
provisions of the ERPA does not constitute any violation on their part of their
obligations under that agreement. This argument rests on an interpretation of the
provisions of the ERPA which, in contrast to the view adopted by the Employers,
would have it that the nature of the dispute in question is not one which the
Unions are obliged to subject to that particular avenue of dispute resolution.
Axiomatically, in order to decide the question of breach, it will be necessary to
determine the proper interpretation of the agreement and assess the scope within
which it can be implemented in respect of the controversy in issue.
12 Independently of that counter to the case set up by the Employers, is the unions’
further contention that, as a matter of law, the Unions are not obliged to submit a
dispute to a domestic dispute resolution procedure and exhaust that procedure,
prior to being entitled in law to call for and conduct a protected strike, and may if
they choose, follow the route prescribed by section 64 of the LRA. This
contention is indubitably correct and rests on the authority of the Labour Appeal
Court in County Fair Foods (Pty) Limited v FAWU and Others (2001) 22 ILJ
110 (LAC) . The fundamental question which was addressed in that matter, and
which is in point on the issues debated in this matter, is what prerequisites the
Unions must satisfy to facilitate an opportunity to embark on a protected strike.
At p 1108 G I Zondo JP stated as follows:
1 “What the legislature has sought to achieve is to give parties a choice of
either following a prestrike dispute procedure contained in the collective
agreement or following the statutory procedure in Section 64(1). Compliance
with either procedure suffices to confer on employees the right to strike and the
resultant strike acquires the status of a protected strike with all the benefits and
consequences which flow from such status. I have considered the question
whether there could be any basis on which, applying purpose of interpretation, it
could be said that a strike which has been resorted to without prior compliance
with the procedure in a collective agreement, but has complied with the procedure
of Section 64(1) of the Act can nevertheless said not to be a protected strike. I do
not think that that can be said without the court unjustifiable usurping the
legislature’s legislative function. In those circumstances I conclude that this point
must also fail. ”
13 If is it correct that the Unions are entitled to chose to either ventilate a dispute in
the domestic dispute resolution forum or ventilate it in the CCMA, and either one
of the two routes confers a licence to embark on protected industrial action, it
follows that there must be grave limits to the scope for any relief in the nature of
an order of specific performance, the effect of which is to direct the conciliation of
a dispute to a domestic dispute resolution forum in preference to allowing it to be
dealt with by the CCMA.
1
14 In their argument, the Employers rely expressly on section 23 of the LRA. Section
23 unequivocally establishes the status of a collective agreement, of which the
ERPA is an example, to be that of a binding agreement, enforceable at law. A
collective agreement, enjoying that status, therefore is susceptible to an
application to have it specifically enforced. However, Section 24 of the LRA
regulates disputes about collective agreements. It provides as follows:
“1 Every collective agreement excluding an agency shop agreement concluded in
terms of Section 25 of a closed shop agreement concluded in terms of Section 26
or a settlement agreement contemplated in either Section 142 A or 158 (1) (c)
must provide for a procedure to resolve any dispute about the interpretation or
application of the collective agreement. The procedure must first require the
parties to attempt to resolve the dispute through conciliation and if the dispute
remains unresolved to resolve it through arbitration.
2 If there is a dispute about the interpretation or application of a collective
agreement, any party to the dispute may refer the dispute in writing to the
commission if:
(a) the collective agreement does not provide for a procedure as required by sub
section 1;
(b) the procedure provided for in the collective agreement is not operative; or
(c) any party to the collective agreement has frustrated the resolution of the dispute
in terms of the collective agreement. ”
15 On the facts set out in the founding affidavit it is plain that the gravamen of the
controversy is the interpretation and implementation of the agreement and, more
particularly, Section 24(2)(c) must govern the complaint articulated by the
Employers about the conduct of the Unions. These issues are in terms of section
24(5) to be resolved by arbitration. That being so, it follows that the Labour Court
is not a forum clothed by the LRA with the requisite jurisdiction to determine the
proper interpretation of the ERPA nor whether or not the Unions are in violation
of its provisions, and, supposing that they are in breach, to order specific
performance of any obligations which flow from the ERPA.
16 It is plain therefore in my judgment that the Labour Court lacks the jurisdiction to
entertain the relief which is set out in prayer 2 of the employer’s notice of motion.
17 It was argued that in the event that the Employers were not entitled to invoke the
ERPA as a foundation for the relief sought in their notice of motion, and that
prayer 2 was to be refused, it was nevertheless appropriate to consider granting the
relief set out in prayers 3 and 4, as set out above, on the basis that the Unions were
in contempt of the order of Zilwa AJ.
18 The factual foundation for that contention is that the two referrals which are
sought to be interdicted from being entertained by the CCMA are in respect of
subject matter which is for all practical purposes identical to the referrals which
were interdicted by Zilwa AJ from being referred by the Unions to the CCMA.
The Unions dispute that the referrals which have been identified in the notice of
motion are indeed identical to those which were interdicted by Zilwa AJ. The
argument is advanced on their behalf that the referrals which were dealt with by
the order of Zilwa AJ dealt with complaints concerning an alleged unilateral
variation of terms and conditions of employment whereas the referrals which are
identified in the notice of motion relate purely to a dispute of interest as whether
or not one or other possible innovation might or might not be introduced to
provide for the medical health requirements of the employees. This distinction is
not disputed by the Employers; rather, it is contended that the distinction is
inconsequential.
19 In my view, to resort to an assessment of whether or not the same “ subject matter ”
is addressed in the two sets of referrals is to pose the wrong question. The
appropriate focus should be on the demands or outcomes which are sought in the
referrals. The reason for preferring that as the test rather than the former is that it
is plainly evident, in my view, that there can be several distinct disputes which
relate to the same subject matter and no sound reason in logic or in policy has
been advanced to me why those distinctions ought not to be maintained. What is
interdicted is the ventilation of disputes not topics, and what constitutes a dispute
in this context is the point of controversy not the theme or subject matter. In
applying the preferred approach to these circumstances, I am by no means
convinced that the various referrals are identical or that, on the basis of the test I
have postulated, there is on the facts any violation of the order contemplated by
Zilwa AJ. To the extent that it is conceivable that a party might manipulate the
process to circumvent a prohibition in an order of this Court, it is not apparent to
me that such an abuse has occurred on these facts. Indeed, the success of the
unions in the case in which Francis J gave judgment demonstrates that the point of
controversy has shifted away from the scope of the workers prevailing terms and
conditions of employment to an interest dispute in respect of the introduction of
innovations at the instance of the Employers.
20 Independently of those considerations, it is appropriate that I express my disquiet
about the very principle that this Court is vested with jurisdiction to interdict the
CCMA from receiving a referral of a dispute of whatever nature, for the purposes
of conciliation. It is plain that this is precisely what the order of Zilwa AJ is
intended to achieve. That order was granted by him in the absence of opposition,
and ostensibly in the absence of argument on the propriety of the substance of the
relief upon which he placed his imprimatur. It seems to me to be contrary to
sound industrial relations practice, and moreover, to be a dangerously radical
policy choice to inhibit, through judicial means, the referral of any industrial
relations dispute to the CCMA for conciliation. In the arguments ventilated before
me, the propriety of such relief was not motivated. I am inclined to take the view
that it is a wholly inappropriate remedy, and even if within the four corners of the
Labour Relations Act, some support could be found for the power of the Labour
Court to do so, it would be a power that should be so sparingly exercised that the
most exceptional circumstances ought to be present before it should be
contemplated. No basis for such jurisdiction to exist in terms of the LRA, nor for
such exceptional circumstances to exist in this case, have been drawn to my
attention.
21 I alluded earlier in these reasons to the solicitation on behalf of the Unions to
“discharge” the order granted by Zilwa AJ. I refused that application because it
seems to me, on the face of it, that the order constitutes final relief. There is a
resolutive condition contained in paragraph 2 that the force of the order shall lapse
if an event, namely the application for declaratory relief, is not launched by a
particular date. No case is advanced to me to declare the order to be ineffective on
those grounds. I do not understand the tenor of the order to be such that it is of an
interim nature, even though it is intended to govern a period which will expire
upon an identifiable and certain event, namely the conclusion of the proceedings
in the application for declaratory relief. The relief to my mind is not susceptible to
being undone, even if as submitted , the withdrawal of the referrals interdicted by
the order renders the order academic. I am minded not to usurp the function of a
Court of Appeal by setting aside the order of Zilwa AJ through the back door by
declaring it ineffective. If proper grounds exist for setting it aside, that relief
should be pursued, together with any applications for condonation that might be
appropriate for having brought proceedings late, in a direct challenge to the
propriety of the order.
22 For these reasons, I concluded that the orders made on 27June 2002 were
appropriate.
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ROLAND SUTHERLAND
ACTING JUDGE OF THE
LABOUR COURT OF
SOUTH AFRICA
24 July 2002
DATE OF HEARING: 26 June 2002
DATE OF JUDGMENT: 27 June 2002
For the Applicant: Adv. Cassim SC. and Advocate Hutton instructed by Leppan
Beech Attorneys.
For the Respondent: Adv. H. van der Riet SC. instructed by Cheadle Thompson
& Haysom Inc.