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[2001] ZASCA 78
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Coin Security Group (Pty) Ltd v Minister of Labour and Others (18/2000) [2001] ZASCA 78; 2001 (4) SA 285 (SCA); (2001) 22 ILJ 2399 (SCA); [2001] 11 BLLR 1193 (SCA) (1 June 2001)
reportable
case no: 18/2000
In the matter between:
COIN SECURITY
GROUP (PTY)
LIMITED
Appellant
and
THE MINISTER OF
LABOUR
1
st
Respondent
INDUSTRIAL COUNCIL OF THE MOTOR
TRANSPORT UNDERTAKING (GOODS)
2
nd
Respondent
ROAD FREIGHT
EMPLOYERS ASSOCIASION
3
rd
Respondent
MOTOR TRANSPORT
WORKERS UNION
(SOUTH
AFRICA)
4
th
Respondent
SOUTH AFRICAN
TRANSPORT WORKERS UNION
5
th
Respondent
PROFESSIONAL TRANSPORT
WORKERS UNION
OF SOUTH
AFRICA
6
th
Respondent
TRANSPORT AND
GENERAL WORKERS UNION
7
th
Respondent
AFRICAN MINERS AND
ALLIED WORKERS UNION
8
th
Respondent
TURNING WHEEL
WORKERS UNION
9
th
Respondent
Coram
:
Hefer,
ACJ, Schutz, Scott, Streicher, and Farlam JJ A
Heard
:
10
May 2001
Delivered
:
1
June 2001
The industrial court has exclusive jurisdiction to determine
demarcation disputes in respect of industrial council agreements
which remained in force in terms of item 12(1) of Schedule 7 to Act
66 of 1995
_________________________________________________________________
J U D G M E N T
STREICHER J A
:
[1]
The
appellant,Coin Security Group (Pty) Ltd, sought a declaratory order
in die Transvaal Provincial Division that certain industrial
council
agreements promulgated in terms of s 48 of the Labour Relations Act
28 of 1956 (“the old LRA”) and an order
published in
terms of s 51A(3) of that Act did not apply to it. The court
a
quo
dismissed the application on the ground
that it had no jurisdiction to decide the issue, in that it had to be
dealt with in terms
of s 62 of the Labour Relations Act 66 of 1995
(“the new LRA”).The appellant now appeals against that
decision but
only in respect of the agreement of the Industrial
Council for the Motor Transport Undertaking (Goods) (the second
respondent)
published by way of Government Notice R1832 in Government
Gazette No 17548 dated 8 November 1996 (“the agreement”).
The appellant contends that the court
a quo
had jurisdiction to decide the matter in that jurisdiction to do so
had not been assigned to another court. The first and second
respondents, on the other hand, contend that the court
a quo
correctly decided that the matter had
to be dealt with in terms of s 62 of the new LRA, alternatively that
the Labour Court established
in terms of the new LRA or the
Industrial Court established under the old LRA had exclusive
jurisdiction to deal with the matter.
[2]
The
agreement was entered into between the Road Freight Employers’
Association (the third respondent) of the one part and
a number of
trade unions (the fourth to ninth respondents) of the other part. At
the request of the second respondent and in terms
of the aforesaid
notice, the Minister of Labour (the first respondent), declared the
provisions of the agreement binding upon the
parties thereto and upon
the employers and employees who were members of these parties, as
from 18 November 1996 until 31 December
1996. In doing so the first
respondent was acting in terms of s 48(1)(a) of the old LRA. In the
same notice the first respondent,
acting in terms of s 48(1)(b) of
the old LRA, declared the provisions of the agreement binding, as
from 18 November 1996, upon
all other employers and employees who
were engaged or employed in the “motor transport undertaking
(goods)” in the
areas specified in the agreement. The agreement
prescribed minimum wages and other conditions of employment.
[3]
“Motor
Transport Undertaking” is defined in the agreement as the
undertaking in which employers and employees are associated
for the
transportation of goods by means of motor transport for hire or
reward. The appellant contends that it is not bound by
the agreement
in that the undertaking in which it is involved is that of the
provision of security services rather than transportation,
and that
the items handled by it in the provision of its services are not
“goods” within the meaning of that word in
the agreement.
The second respondent on the other hand insists that the appellant is
bound to comply with the provisions of the
agreement. It is this
dispute, generally known as a demarcation dispute, which gave rise to
the application in the court
a quo
.
[4]
In terms of
the old LRA the Industrial Court had exclusive jurisdiction in
respect of demarcation disputes. S 76 of the old LRA
provided as
follows:
“
(1) The Minister may, if he deems it expedient to
do so, refer any question to the industrial court for determination
as to-
(a) whether any employer or employee, or class of
employers or employees is or was engaged or employed in a particular
undertaking,
industry, trade or occupation; or
…
(3)Any registered trade union, employers’
organization, industrial council, or employer concerned in the
matter, may apply
to the industrial court in the prescribed form and
manner for the determination of any question such as is referred to
in sub-section
(1)...
(4)Whenever, in any court of law, a question such as is
referred to in sub-section (1) is raised, and the court is satisfied
that
the question raised has not previously been determined by the
industrial court and that the determination thereof is necessary for
the purposes of the proceedings, it shall refer the question to the
industrial court for determination, and shall adjourn the proceedings
in which the question was raised until after the question has been so
determined.”
In terms of s 76(5) the Industrial Court, upon receipt
of a reference as aforesaid, had to cause publication in the
Government Gazette
of a notice setting forth particulars of the
reference or application and stating the period within which, the
officer with whom
and the address at which any written
representations could be lodged.
Section 76(6) provided as follows:
“
(6) After considering any written representations
lodged in terms of sub-section (5), and after any further
investigation (which
may include the hearing of evidence or argument)
which it deems to be necessary, the industrial court may determine
the question
and shall as soon as possible thereafter advise the
Minister and the court which referred the question to it or the
parties concerned
in the application, as the case may be, of the
terms of such determination. In determining a question under this
sub-section the
tribunal shall give such decision as it deems
equitable having regard to the circumstances of each particular
case.”
It is thus clear that in terms of the old LRA the
dispute between the parties had to be determined by the Industrial
Court and
that the High Court (previously the Supreme Court) had no
jurisdiction to do so. Moreover, a special procedure, different from
the procedure followed in the High Court, was prescribed for making
a determination as to whether an employer was or had been
engaged in
a particular undertaking.
[5]
However,
the old LRA was repealed by the new LRA with effect from 11 November
1996 i.e. after publication of Government Notice
R1832 but before it
became binding on 18 November 1996. Section 62(1) of the new LRA
provides as follows:
“
62(1) Any registered trade union, employer,
employee, registered employers’ organisation or council that
has a direct or
indirect interest in the application contemplated in
this section may apply to the Commission in the prescribed form and
manner
for a determination as to-
(a) whether any employee, employer, class of
employees or class of employers, is or was employed or engaged in
a sector or
area;
(b) whether any provision in any arbitration award,
collective agreement or wage determination made in terms of the
Wage Act
is or was binding on any employee, employer, class of
employees or class of employers.”
A collective agreement is defined in s 213 as “a
written agreement concerning terms and conditions of employment or
any
other matter of mutual interest concluded by one or more
registered trade unions, on the one hand and, on the other hand -
(a)
one or more employers; (b) one or more registered employers’
organisations; or (c) one or more employers and one or more
registered employers’ organizations”.
In terms of s 62(3) the Labour Court must adjourn
proceedings in terms of the new LRA if a question contemplated in
ss(1) (a)
or (b) is raised and refer the question to the Commission
for Conciliation, Mediation and Arbitration (“the Commission”)
established as a juristic person in terms of s 112, if the court is
satisfied that the question raised had not previously been
determined by arbitration in terms of the section; that it is not
the subject of an agreement in terms of s 62(2); and that the
determination thereof is necessary for the purposes of the
proceedings. The same applies to an arbitrator if a question
contemplated
in ss (1)(a) or (b) is raised about the interpretation
of a collective agreement. Upon receipt of such an application or
referral
the Commission must appoint a commissioner to hear the
application or determine the question in accordance with the
provisions
of s 138 (s 62(4)). If the Commission believes that the
question is of substantial importance, the Commission must publish a
notice in the Government Gazette stating the particulars of the
application or referral and stating the period within which written
representations may be made (s 62( 7)). Before making an award, the
commissioner must consider any written representations that
are made
and must consult the National Economic Development and Labour
Council (“NEDLAC”) established by s 2 of the
National
Economic, Development and Labour Council Act 35 of 1994 (s 62(8)).
In terms of s 138 the commissioner has a discretion
as to the form
of the proceedings which is appropriate (s 138(2)) but he must deal
with the substantial merits of the dispute
with the minimum of legal
formalities (s 138(1)). If all the parties consent the commissioner
may attempt to resolve the dispute
through conciliation (s 138(3)).
Provision is made for the representation of parties by legal
practitioners and certain other
persons (s 138(4)); the commissioner
is enjoined to take into account any code of good practice that has
been issued by NEDLAC
or guidelines published by the Commission in
accordance with the provisions of the new LRA and to issue an award
within 14 days
(s 138(7)); and the commissioner may not include an
order for costs in his award unless a party, or the person who
represented
that party in the proceedings acted in a frivolous or
vexatious manner (s 138(10)).
As in the case of the old LRA it is clear that in terms
of the new LRA the legislature was of the view that demarcation
disputes
required special treatment. Not even the Labour Court was
given jurisdiction to determine such disputes.
[6] Schedule 7 to the new LRA contains certain
transitional arrangements. Item 12(1)(a) thereof provides as
follows:
“
12(1)(a) Any agreement promulgated in terms of
section 48 ... of the
Labour Relations Act and
in force immediately
before the commencement of this Act, remains in force and
enforceable . . . for a period of 18 months after
the commencement
of this Act or until the expiry of that agreement . . . whichever
is the shorter period, in all respects, as
if the
Labour Relations
Act had
not been repealed.”
The schedule provides furthermore that any dispute
contemplated in the labour relations laws (which by definition
includes the
old LRA) which arose before the commencement of the new
LRA must be dealt with as if those laws had not been repealed (item
21(1));
that in any pending dispute in respect of which the
Industrial Court had jurisdiction and in respect of which
proceedings had
not been instituted before the commencement of the
new LRA, proceedings must be instituted in the Industrial Court and
dealt
with as if the labour relations laws had not been repealed
(item 22(1)): and that any dispute in respect of which proceedings
were pending in the Industrial Court must be proceeded with as if
the labour relations laws had not been repealed (item 22(2)).
[7]
In
Bargaining Council for the Clothing Industry (Natal) v Confederation
of Employers of Southern Africa & Others
(1999) 20 ILJ 1695 (LAC) the Labour Appeal Court decided that the
mechanisms for the enforcement of the industrial council agreements
concluded in terms of the old LRA survived the repeal of that Act in
respect of agreements which remained in force in terms of
item
12(1)(a) of Schedule 7 to the new LRA. The Labour Appeal Court
reached this conclusion on the basis that that was the plain
meaning
of the words “remains in force and enforceable . . . in all
respects, as if the [repealed] Act had not been repealed”
and
that there was no indication in the new LRA that the legislature
intended that the enforcement mechanisms provided for in
the old LRA
be abolished overnight.
[8] The court
a quo
was of the view that the Labour Appeal Court
read too much into the words “remains in force and enforceable
. . . in all
respects, as if the
Labour Relations Act had
not been
repealed”. In its view the agreement and not the Act remained
in force. Further, that from the wording of item
21 (to the effect
that disputes contemplated in the labour relations laws that arose
before the commencement of the new LRA had
to be dealt with as if
those laws had not been repealed), it followed that disputes arising
after the commencement of the new
LRA had to be dealt with in terms
of that Act. The court
a quo
proceeded to hold that inasmuch as the application was brought in
December 1996 the dispute arose after the commencement of the
new
LRA; that the agreement was deemed to be a collective agreement; and
that in terms of the new LRA a previously undetermined
demarcation
dispute fell within the exclusive jurisdiction of the Labour Court
which was in turn, in terms of s 62, obliged to
refer it to the
Commission.
[9]
Counsel for
the appellant submitted that the court
a quo
erred in finding that the agreement was a collective agreement and
that the Labour Court had exclusive jurisdicition to decide
a
previously undetermined demarcation dispute. They submitted
furthermore, that the
Bargaining Council
case
was also wrongly decided, in that item 12(1)(a) merely operated to
keep in force subordinate delegated legislation, which
would
otherwise have lapsed on the repeal of the old LRA. It left
questions of the interpretation of industrial council agreements
promulgated in terms of s 48 of the old LRA and their application
and enforcement to the provisions of the new LRA and the ordinary
courts of the land. As the new LRA did not make provision for the
determination of the present dispute, the dispute had to be
determined by the High Court which may, in terms of s 169(b) of the
Constitution, decide any matter not assigned to another court
by an
Act of Parliament, so they submitted.
[10]
The court
a quo
gave no reason for its findings that
the agreement was deemed to be a collective agreement and that the
Labour Court had exclusive
jurisdiction in respect of previously
undetermined demarcation disputes. It was wrong in both respects. It
is clear from s 62
of the new LRA, to which the court
a
quo
referred, that the Labour Court has no
jurisdiction to decide a demarcation dispute. Furthermore, nowhere
in the new LRA is it
stated that an industrial council agreement
promulgated in terms of s 48 of the old LRA would be deemed to be a
collective agreement.
Clause 1A of the agreement provided that it
would come into operation on such date as might be fixed by the
first respondent
in terms of section 48 of the old LRA and that it
would remain in force until 31 December 1996 or for such period as
the first
respondent might determine. The first respondent could
only act in terms of s 48 at the request of the second respondent,
who
could only request him to declare the agreement binding if
authorised to do so by a decision to that effect voted for by not
less than two-thirds of the representatives who were present at the
meeting at which the decision was taken (s 27(2) to (7)). In
S
v Prefabricated Housing Corporation (Pty) Ltd and Another
1974
(1) SA 535
(A) this court held that such an agreement was not a
contract in the legal sense. Trollip JA said at 539G-540B:
“
It is true that the type of
document now under consideration is termed under the Act and in
industrial parlance an ‘agreemen’,
and it is said to be
‘negotiated’ or ‘entered into’, but
technically it is not a contract in the legal
sense. The parties to
the industrial council are the employer(s) or employers'
organisation(s) and trade union(s) or their representatives
(see
sec. 18). They do not contract
inter se
to produce the measure. They (or those of them concerned in the
matter cf. sec. 48 (1)) may ‘negotiate’ or
‘enter
into’ ‘the agreement’, but it is the industrial
council as the corporate body that decides (a
majority vote of two
thirds of those present and entitled to vote sufficing sec.
27 (2) to (7)) whether to adopt
it and transmit it to the Minister
for consideration and promulgation. Moreover, it only becomes
effective if and when the Minister
deems it expedient to declare it
binding by notification in the Gazette (sec. 48 (1)). It is
noteworthy, too, that it is the
Minister who fixes the period of its
duration, and that he can also declare it (or parts of it) to be
binding on employers and
employees in the industry other than those
who entered into the agreement and for an area additional to the
area for which the
industrial council is registered (sec. 48 (1) (b
) and (c )).
From all those provisions it is clear, I
think, that an industrial agreement is not a contract but a piece of
subordinate, domestic
legislation made in terms of the Act by the
industrial council and the Minister. (See the clear and concise
summary of the position
given by DOWLING J. in
South
African Association of Municipal Employees (Pretoria Branch) and
Another v Pretoria City Council
1948 (1) SA
11
(T) at p. 17).”
In the light of this decision the legislature would
have made it clear in the new LRA if it intended the phrase
“collective
agreement” to include industrial council
agreements such as the one we are concerned with. Not having done so
the definition
of a “collective agreement” in the new
LRA should be interpreted so as not to include such agreements.
[11] In my view the ordinary meaning of
the words “any agreement promulgated in terms of s 48 . . . of
the
Labour Relations Act
. . . remains in force . . . as if the
Labour Relations Act had
not been repealed”, is that all the
provisions of the old LRA relating to such an agreement would apply
as if they had
not been repealed.
1
Counsel for the appellant submitted that that meaning could not have
been intended by the legislature and that for that reason
the
interpretation they contended for should be given to the words. In
this regard counsel for the appellant referred to the
criminal
liability imposed by the old LRA in respect of a wide range of
actions on the part of employers and employees contrary
to the
provisions of industrial council agreements which had been
promulgated in terms of
s 48.
They submitted that it was apparent
from the new LRA that the legislature wanted to decriminalize the
labour law. That being
so it was inconceivable, they submitted, that
the legislature could have intended not only to preserve criminal
sanctions for
a transitional period but also to provide for the
creation of new obligations which may give rise to criminal
liability during
the transitional period by providing that, if a
request was made before expiry of six months after the commencement
of the new
LRA, an agreement entered into before the commencement of
the new LRA could be promulgated as if the old LRA had not been
repealed.
[12]
In my view
the fact that the legislature to a large extent decriminalized
labour law in the new LRA does not establish as a matter
of
probability that it was not prepared as a transitional arrangement
for a period of 18 months to preserve the enforcement mechanisms
of
the old LRA.
[13] Counsel for the appellant also contended that if
the aforesaid interpretation is given to item 12(1) it would mean
that the
legislature deliberately kept in force the reverse onus
provisions in
ss 74(3)
and (8) of the old LRA and that such a result
would be surprising in the light of Constitutional Court decisions
in which similar
provisions had been held to be unconstitutional. I
do not agree, merely keeping the reverse onus provisions in force
would not
render them constitutional.
[14] There are other indications that the legislature
intended that all the provisions of the old LRA relating to
industrial council
agreements which remained in force in terms of
item 12(1)(a) should apply to such agreements as if they had not
been repealed.
In terms of item 12(1)(b) an agreement referred to in
item 12(1)(a), which would have expired before the end of the 18
month
period referred to in that item, could be extended, in
accordance with the provisions of
s 48(4)(a)
of the old LRA, for a
period ending before or on the expiry of the aforesaid 18 month
period. Item 12(1)(b) specifically provides
that if that is done all
the provisions of the old LRA relating to industrial council
agreements extended in terms of that subsection,
will apply to the
extended agreement as if they had not been repealed. If that is the
case in respect of extended industrial
council agreements it is
inconceivable that the legislature could have had a different
intention in respect of those agreements
before their extension.
[15]
In the
light of the aforegoing I conclude that in terms of item 12(1) all
the provisions of the old LRA relating to an industrial
council
agreement such as the one under consideration applies to the
agreement as if they had not been repealed. In terms of
s 76
of the
old LRA the question whether a particular employer was engaged in a
particular undertaking rendering the industrial council
agreement
binding on him had to be decided by the Industrial Court and not by
any other court.
Section 76
was therefore a provision of the old LRA
which, among other things, related to agreements such as the one we
are concerned with.
[16]
It follows
that the court
a quo
had no jurisdiction to decide the demarcation dispute; it has to be
decided by the Industrial Court. In the light of the fact
that the
old LRA provided that demarcation disputes should not be determined
by the High Court and that the new LRA provides
that such disputes
may not be determined by the Labour Court, the finding contended for
on behalf of the appellant, that the
legislature intended that
disputes such as the present one should be determined by the High
Court in accordance with the ordinary
procedure of the High Court,
would have been a very surprising result. Even more so in the light
of the fact that the Industrial
Court survived the repeal of the old
LRA (see items 21(1), 22(1) and 22(2) referred to above).
[17]
Counsel
for the appellant submitted that if we were to find that the dispute
had to be determined by the Industrial Court then,
in terms of
s
76(4)
of the old LRA, the court
a quo
should not have dismissed the application but should have referred
the demarcation dispute to the Industrial Court for determination
and should have adjourned the proceedings until after the dispute
had been determined. However,
s 76(4)
deals with the situation where
the demarcation issue is not the only issue to be decided. In this
case it is the only issue to
be decided. It would have served no
purpose for the court
a quo
to have adjourned the proceedings before it until after the
demarcation dispute had been determined by the Industrial Court.
The
proceedings should, therefore,in terms of
s 76(3)
, have been
instituted in the Industrial Court.
[18]
For these
reasons the appeal is dismissed with costs including the costs of
two counsel.
___________________
P E STREICHER
JUDGE OF APPEAL
AGREE:
HEFER A CJ
SCHUTZ JA
SCOTT JA
FARLAM JA
1
I have omitted the words
and
enforceable
as they do not add anything to the meaning of the words “in
force”. In the premises I do not consider it necessary
to deal
with the appellant’s submission that their insertion by the
first respondent in terms of
s 207
of the new LRA was
unconstitutional.