IN THE LABOUR COURT OF SOUTH AFRICA REPORTABLE
BRAAMFONTEIN CASE NO: JR1694/02
DATE HEARD: 18/11/2002
DATE DELIVERED: 19/11/02
In the matter between
NUM Applicant
and
COMMISSIONER T ORLEYN First
Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION Second
Respondent
KLOOF GOLD MINING COMPANY
LIMITED Third
Respondent
_______________________________________________________
J U D G M E N T
_______________________________________________________
PILLAY D, J:
1. This application in terms of section 158(1)(g) of the Labour
Relations Act No 66 of 1995 (the LRA) is brought urgently to
review and set aside the ruling dated 4 October 2002 of the first
respondent commissioner. The third respondent had objected
to the commissioner conciliating the dispute on two grounds:
a. Firstly, the applicant's demand was allegedly unlawful in terms
of the Mine Health and Safety Act, Act No 29 of 1996.
b. Secondly, the dispute fell to be adjudicated in terms of section 7
of the Basic Conditions of Employment Act, No 75 of 1997 (the
BCEA).
2. On the first ground, the commissioner found as follow:
"I do not believe that the CCMA has jurisdiction to determine
whether a 13 day closure constitutes an occurrence, practice or
condition that would cause the inspector to provoke the
conditions of section 54 and section 55 of the Mine Health and
Safety Act" (sic).
3. From this response it seems that she declined to determine the
lawfulness of the demand, which would bring about a 13 day
shut down of the mine.
4. On the second ground she found in favour of the third
respondent. Her ruling that the second respondent, the CCMA,
does not have jurisdiction to conciliate and facilitate the dispute,
seems to be based on this finding.
URGENCY
5. The third respondent challenged the urgency of the matter. Mr
Van As conceded on its behalf, however, that it was semi-
urgent. But, he argued that the issue in dispute had become
academic, as the applicant's members would not be able to
work in the additional shifts before Christmas. Consequently,
the third respondent had no legal obligation to meet the
demand. The third respondent also objected to being put to the
inconvenience of preparing for the application at short notice.
The urgency, it submitted, was occasioned by the applicant’s
own tardiness in launching this review.
6. In my view, the third respondent has had an opportunity to
present its case fully. It has not sought a postponement to do
so. In so far as the applicant may be found to have been
inconsiderate, an appropriate order for costs may be made.
However, whether the dispute is academic, must be determined
after consideration of the argument as a whole. I will therefore
return to the question of urgency and costs in due course.
THE APPLICANT'S SUBMISSIONS
7. Mr Jammy for the applicant argued that on a proper construction
of sections 133, 134 and 135 of the LRA and the definition of the
word "dispute", the CCMA had referred to it a dispute about a
matter of mutual interest, which it had to conciliate as all the
jurisdictional prerequisites therefor had been complied with. It
denied that the lawfulness of the demand constituted a
jurisdictional prerequisite.
THE THIRD RESPONDENT'S SUBMISSIONS
8. The third respondent submitted that it is implied in sections 134
and 135 that only a dispute in which the demand is lawful may
be conciliated. The conciliating commissioner would otherwise
be persuading the employer to accede to something unlawful.
Moreover, the commissioner ought to determine the lawfulness
of the demand as a preliminary issue, otherwise it could result in
a certificate of non-resolution being issued, followed by a strike
or adjudication in support of an unlawful demand. The issue of
the unlawfulness of a strike would therefore rear its head again,
and third respondent would have to suffer the inconvenience of
launching an interdict at that stage.
9. Mr Van As denied that the dispute was a matter of mutual
interest. As it was about hours of work involving occupational
health and safety issues, it was regulated by section 7 read with
section 77 of the BCEA. The lawfulness of the demand therefore
fell to be adjudicated by this court. He therefore urged me to
determine this issue on the basis of the evidence before me.
Alternatively, he asked that I remit the matter back to the
commission for determination of this limited issue.
THE JURISDICTIONAL PREREQUISITE OR RECONCILIATION
10. Section 133 of the LRA compels conciliation in two situations:
a. If a dispute about a matter of mutual interest is referred to the
CCMA in terms of section 134; and
b. If any other dispute is referred to it.
11. Disputes other than about matters of mutual interest may be
referred in terms of section 135. A scrutiny of these provisions
unveils the following jurisdictional prerequisites relevant to this
matter:
a. There must be a referral of a dispute or an alleged dispute.
b. It must be a dispute or an alleged dispute about a matter of
mutual interest.
c. If the provisions of sections 133(1)(a) and 133(4) are relied on, if
it is a dispute about matters of mutual interest, the parties to it
must be an employee or a trade union on the one side and an
employer or an employers' organisation on the other side.
12. It is common cause that the last requirement has been
satisfied.
MATTERS OF MUTUAL INTEREST
13. There is no collective agreement or other instrument that
confirms that the applicant's members are entitled to the 13 day
shut down as a right. The third respondent's reliance on section
7 of the BCEA as support for its proposition that the dispute is
one of right and not a matter of mutual interest, is
misconceived. Section 7 merely imposes a duty on the third
respondent to regulate working time according to certain
criteria including any Act governing occupational health and
safety. It does not specify what the working times should be.
That is a matter for bargaining.
14. In the past the parties engaged each other on this issue and
had in fact agreed on the working hours. This year they did not.
Their demand for a 13 day shut down is not a right yet, but may
become one through collective bargaining. As such, the dispute
is a dispute about a matter of mutual interest. (Sithole v
Nogwaza NO and Others 1999 20 ILJ 2710 LC. Wallis Labour
and Employment Law at paragraph 46 footnote 12-13, Cameron
et al New Labour Relations Act at page 96; Rycroft and Jordaan
A Guide to South African Labour Law 2nd Ed 168 to 171; Grogan
Work Place Law 6th Ed page 333.) It is also not artificially
contrived as such.
15. The second jurisdictional prerequisite for conciliation has
therefore been met.
THE DISPUTE
16. The word "dispute" is not defined in terms of the lawfulness
of the demand. Its definition is broadened to include an alleged
dispute. This means that conciliation can take place even
though there is no dispute in fact.
17. In many disputes that are conciliated, one party may have a
legal, valid claim whilst the other has no case. To require the
lawfulness of the claim to be determined as a jurisdictional
prerequisite for conciliation defeats the very purpose of that
process and the objectives of the LRA. The purpose of
conciliation is to provide an avenue for channelling industrial
conflict into a process that proceeds in a relatively predictable
manner towards resolution. It is, at the least, an opportunity to
vent grievances and demands and thereby reduce frustrations
and tensions in the work place.
18. The conciliation is conducted by commissioners who are
specially skilled in moving the parties towards consensus. To
suggest, as the third respondent does, that conciliation would
serve no purpose, firstly because the applicant was intractable
and in transigent before conciliation, and secondly, because the
commissioner cannot conciliate about an illegal demand,
ignores the fundamental differences between negotiation and
conciliation. Furthermore, it pre-empts that the outcome of
conciliation would be to give effect to an illegality, either by the
employer acceding to the demand, or the certificate of non
resolution being issued and thereby leading to unlawful
industrial action.
19. These outcomes are entirely speculative. Furthermore, they
are not the only outcomes of conciliation. The mere allegation
that the demand is illegal, would in all probability feed into the
process and contribute to determining its outcome.
20. Conciliation in terms of the LRA is therefore conceived not
only as a jurisdictional prelude to other forms of dispute
resolution, but also as an end in itself. Having, as it does, a
quintessential value in the design of dispute resolution in the
LRA, it cannot be implied that the lawfulness of the demand is a
jurisdictional prerequisite for conciliation.
21. In my view, to impose such a prerequisite, would effectively
amount to a limitation, which excludes access to an
independent, impartial dispute resolution forum. Such a
limitation is not only unreasonable and unjustifiable in terms of
section 36 of the Constitution of the Republic of South Africa,
Act No 108 of 1996, but also unnecessary. It is a restrictive
interpretation that does not give effect to the values of a
democratic society insofar as such values are manifest in one of
the primary objectives of the LRA namely, to resolve disputes
expeditiously. In fact, it runs counter to those objectives.
22. I accordingly find that all three jurisdictional prerequisites for
conciliation have therefore been met.
23. If the lawfulness of the demand is a jurisdictional prerequisite
for a protected strike-and I make no finding in this regard-that
does not make it a requirement for conciliation.
THE LAWFULNESS OF THE DEMAND
24. At the proceedings before the commissioner, an official of
the Department of Minerals and Energy led evidence that he
would not condone a closure of 13 days for health and safety
reasons, and that such a demand contravenes the Mine Health
and Safety Act No. 29 of 1996.
25. Section 54 confers wide powers on inspectors to give
instructions necessary to protect health and safety. Before
issuing such instructions, the inspector must allow the employer
and employee parties a reasonable opportunity to make
representations. Section 54 and its enforcement in section 55
also prescribe a procedure for determining health and safety
matters. It cannot be said, therefore, that the 13 day shut down
is unlawful until the inspector has invoked that procedure and
made a determination.
26. By testifying at the CCMA hearing that he would not condone
the closure for 13 days does not make it unlawful. At this stage
it is merely potentially unlawful. It is common cause that the
lawfulness of the 13 day shut down has not been determined.
However, my analysis above is necessary, because it may
explain why the commissioner declined, correctly in my view,
not to decide the issue: That was a power vested in the
inspector, not the commissioner. For the same reason I also do
not have the power to determine the matter. Besides, that
would require a substantive counter application by the third
respondent.
27. As the lawfulness of the demand has not been determined,
the argument that the dispute cannot be conciliated because
the demand is unlawful, must fail.
28. The commissioner's ruling is therefore not reasonable and
justifiable. It amounts to a gross irregularity and must be set
aside.
29. Returning to the question of urgency, in view of the
aforegoing analysis, the dispute is not academic. The shifts to
make up for the Christmas shut down, if it is agreed, can be
arranged for any time, even if it is after the shut down. The third
respondent might have preferred that the time be worked in
before the shut down. But, as that has not been possible, there
is no reason why the applicant’s members cannot be
contractually bound by a collective agreement to work in the
time after they return from the shut down.
30. With regard to costs, the matter raised novel points. The
parties have an ongoing relationship and may continue to
engage each other about the issues in this dispute. The
applicant’s conduct has not been unduly dilatory.
31. The review accordingly succeeds with each party paying its
own costs.
32. The order I make is as follows:
a. The application for the amendment of the citation of the third
respondent is granted.
b. I grant an order in terms of paragraphs 1, 2 and 3 of the notice
of motion.
c. Each party is to pay its own costs.
____________
PILLAY D, J
APPEARANCES:
FOR APPLICANT: ADVOCATE PAUL JAMMY
INSTRUCTED BY: CHEADLE THOMPSON & HAYSOM INC.
FOR RESPONDENT: ADVOCATE VAN AAS
INSTRUCTED BY: LEPPAN BEECH ATTORNEYS