IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4114/02
2003-03-07
In the matter between
MIBCO Applicant
and
M.J. OSBORNE & OTHERS Respondents
__________________________________________________________
J U D G M E N T
__________________________________________________________
LANDMAN, J : The Motor Industry Bargaining Council MIBCO
seeks to have several awards, delivered on or after 1 August
2002, made orders of the Labour Court in terms of Section
158(1)(c) of the Labour Relations Act 66 of 1995. MIBCO also
seeks interest and costs on an attorney and client basis. The
awards were handed down by arbitrators of the Dispute
Resolution Centre, the DRC.
Du Toit et al, Labour Relations Law (3rd ed) observe at
page 217: "While a party who does not comply with an
agreement can be said to be in dispute with the bargaining
council (or vice versa) Section 51 of the LRA (which sets out
the dispute resolution functions of bargaining council) in its
definition of a dispute, excludes the possibility of a bargaining
council being a party to a dispute, in respect of which that
council might exercise its dispute resolution functions. It has
been argued that the rationale for this is to be found in the
principle that: "No person may be a judge in his/her own
matter.
As the LRA is silent on the question of how such a
dispute ought to be resolved, the question arises whether the
legislature ever could have contemplated having a bargaining
council as a party to a dispute. Recent arbitration awards have
held that bargaining councils or dispute resolution structures,
which form part of the bargaining council, have jurisdiction to
arbitrate disputes over the enforcement of that council's
agreement, provided the council's constitution either required
or permitted it to do so.”
The Labour Appeal Court has ruled in Kemlin Fashions
CC v Brunton and Others (2001) 22 ILJ 109 (LAC) as follows:
"26. We have to decide this case on the basis that there is a valid
extension of the collective agreement to, amongst others, the
appellant. In such a case it is no longer open to such an entity
to say that this collective agreement does not apply to me or
does not bind me. This has got to be so because the whole
purpose of the Minister's decision to extend the collective
agreement and declare it binding on such a party in terms of
Section 32(2), is to render the collective agreement applicable
to and binding on such an entity. Of course such an entity
may be able to take the point that a particular clause in the
collective agreement does not apply to it, but that is different
from taking the point that the collective agreement itself does
not apply to bind such a party”.
and
28. In the light of the above in order to determine what
procedure the second respondent was required to follow
if it sought to enforce the collective agreement
against the non party, to whom it has been extended,
one must ask what procedure the second respondent would
have been required to follow if it sought to enforce
the collective agreement against the party, which was a
signatory to the collective agreement (Section 32(4)
(g)).
29. The above means that except where the collective
agreement or the Act may be providing otherwise, a
party which did not sign the collective agreement, but
to whom the collective agreement has been extended is
to be treated on the same basis as the party which
signed the collective agreement. In the absence of any
provisions, either in the Act or in the collective
agreement, sanctioning differential treatment for non
parties must be treated in the same way as would
parties to the collective agreement, in any given
situation, once the collective agreement has been
extended to them."
The result is that one must look to the collective
bargaining agreement of the motor industry, MIBCO: Main
Collective Agreement (R697 in Government Gazette 23421
of 31 May 2002), which has been extended in terms of
Section 31 of the LRA for the appropriate dispute
resolution procedure.
Clause 29 is relevant. So is clause 24 of
MIBCO: Administrative Collection( R557 in Government
Gazette 22392 of 22 June 2001)
There is a minor difference between clauses 24 and
29, but it is of no significance. Clause 24 reads as
follows:
24(1) For the purposes of this Agreement, "dispute" means any dispute about the
application, interpretation or enforcement of this
Agreement or any other collective agreements entered
into by the parties to the council.
24(2) Any such dispute shall be referred to the council
in the form specified by the council. This provision
shall not apply when the council makes use of the
procedure set out in subclause (4).
24(3) If the council fails to resolve the dispute
through conciliation and the dispute remains
unresolved, such dispute shall be referred for
arbitration to the MIBCO Dispute Resolution Centre, in
terms of section 52 of the Act. The arbitrator shall
have the power to decide upon the procedure to be
followed at the arbitration hearing in terms of section
138 of the Act, and be entitled to make an award in
respect of the parties' arbitration costs in terms of
section 138 (10) of the Act.
24(4) The provisions of this clause stand in addition to
any other legal remedy through which the council may
enforce a collective agreement.
24(5) The arbitrator's decision shall be final and
binding, subject to the parties' right of review to the
Labour Court.
24.6 Any other dispute shall have the same meaning as
defined in the Act, and shall be dealt with in terms of
section 51 of the Act."
This clause refers to section 52 of the LRA. Section 52
(1) reads as follows:
"(1) A certificate of registration is sufficient proof that:
with a view to performing its dispute resolution
functions in terms of Section 51(3), every council
must:
(a) apply to the Government body of the Commission for
accreditation to perform those functions; or
(b) or appointed an accredited agency to perform those of
the functions referred to Section 51(3) for which the
council is not accredited.”
Section 52(1)(b) in turn refers to Section 51(3)
of the LRA. This section, as is plainly evident from
the definition of “dispute” in Section 51(1), would not
cover a dispute involving the bargaining council. MIBCO
cannot, by means of clause 24, amend the LRA. But
collective agreements can incorporate, by reference,
the wording of statutory instruments. This is what I
assume has been done by clauses 24 and 29 respectively.
The result of this analysis confirms that an
arbitration, in terms of the collective agreement, is
regulated by the Arbitration Act 42 of 1965. A final
and binding award made by an arbitrator of the DRC,
acting in terms of a collective agreement referred to
above, may be made an order of this court in terms of
section 31 of the Arbitration Act. The order is
enforceable in the ordinary way. The amendments
affected to the LRA by the Labour Relations Amendment
Act 12 of 2002, have no bearing on the Arbitration Act.
The applications serving before me seek to have
the DRC awards made orders of this court in terms of
section 158(1) of the LRA. Prima facie the word "award"
in that subsection would include awards made in terms of the
LRA and the Arbitration Act. However, the Arbitration Act is
applicable to the awards of the DRC. This Court has been
given, in terms of section 157(3) of the LRA, jurisdiction in
respect of the arbitration of labour disputes regulated by that
Act.
I am of the view that section 158(1)(c) is inapplicable to
awards made pursuant to the Arbitration Act. I am
strengthened in my view by the fact that awards of this kind,
although prima facie falling within the wording of section 145
of the LRA, are not reviewable in terms of that section. But
only in terms of the Arbitration Act. In the result I am of the
view that the applications before me should have been
brought in terms Section 31 of the Arbitration Act.
Have the amendments to Section 51 of the LRA, which
introduce subsections 8 and 9 affected the views expressed
above? This is the question that I posed to Mr Locke, who
appeared on behalf of MIBCO.
Subsections 8 and 9, read as follows:
“51 Subject to this Act, a council may not provide, in a
collective agreement for the referral of disputes to the
Commission, without prior consultation and with the
director,......
(8) Unless otherwise agreed to in a collective agreement, sections
142A and 143 to 146 apply to any arbitration conducted under
the auspices of a bargaining council.
(9) A bargaining council may, by collective agreement, establish
procedures to resolve any dispute contemplated in this
section."
Section 143 has been amended by the substitution of
subsection 1 and the addition of subsections (3) and(4). These
read as follows:
"(1) An arbitration award issued by a Commissioner is final and
binding, and it may be enforced as if it were an Order of the
Labour Court, unless it is an advisory arbitration award.
(3) An arbitration award may only be enforced in terms of
subsection, if the director has certified that the arbitration
award, is an award contemplated in subsection (1).
(4) If a party fails to comply with an arbitration award that orders
the performance of an act other than payment of an amount of
money, any other party to the award, may enforce it by way of
contempt proceedings instituted in the Labour Court."
The effect of Section 51(8) read with the Sub-Sections to
which it refers is that the procedure in Section 143 would be
available to enforce an award of a bargaining council, without
the need to make the award an order of the Labour Court.
Upon certification by the director of the CCMA, an award is
deemed to be an Order of the Labour Court, for purposes of
enforcing it. This is intended to be a more expeditious and
less expensive means for a successful party to enforce an
award. It may be that an application could still lie in terms of
Section 158(1)(c), but that is a matter which I need not decide.
However, Section 51(9) permits a bargaining council to
exclude the operation of the LRA in the circumstances
contemplated in that Sub-Section, by establishing its own
procedures by means of a collective agreement, which
obviously can be extended to non parties. A collective
agreement, such as those to which I have referred in this
judgment, circumvent the operation of the LRA.
The result is that MIBCO would be entitled to have the
awards made Orders of this Court, in terms of Section 31,
subject of course to the exercise of a judicial discretion. As I
have previously noted these applications come before me in
terms of Section 158(1)(c).This raises the question whether
these applications should be dismissed so that they can be
brought in terms of the correct Act. In my view the long
standing, but erroneous reliance in this court on Section
158(1)(c), persuades me to grant MIBCO leave to file an
amended notice of motion in each one of these applicants,
which should be served on the respondents.
When the amended notices of motion are drafted,
attention should be taken of the fact that the arbitrators have
not awarded interest to be paid on the amounts which they
have found to be due.
I am indebted to Mr Locke for his helpful heads of
argument which addressed the concerns that I have raised
earlier about the effects of the 2002 amendments to the LRA
to the awards of the DRC.
In the result the applications under case numbers
J4114/02, J3932/02, J4277/02, J41465/02, J41464/02, J4116/02
and J4117/02 are postponed sine die.
SIGNED AND DATED AT BRAAMFONTEIN ON ........ APRIL
2003
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A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
18 FEBRUARY 2003
DATE OF JUDGMENT: 7 MARCH 2003
FOR THE APPLICANT: MR J B LOCK
DE WET DU PLESSIES ATTORNEYS