(1) Reportable Yes: e
(2) Of inte~ other Judges: @
(3) R i'$ed: ~ s )
THE LABOUR COURT OF SOUTH AFRICA, CAPE T?
In the matter between:
ROMATEX (PTY) LTD Applicant
and
THE NATIONAL TEXTILE BARGAINING C First Respondent
COMMISSIONER NONHLANHL ZANE N.O. Second Respondent
Heard : 12 March 2026 '
Delivered:
Summary: (Review applic ation - Bargaining council arbitration proceedings -
Collectiv e agre ment-- wher e a court, or a Commissioner of the CCMA for that
matter, is taskecJ to interpret a written contract, or a Collective Agreement, it
mus give to ~ e words used by the parties their plain, ordinary and popular
meaning- where words in the contract speak with sufficient clarity, they must
be taken as expressing the parties' common intention - agreement provides for
Job Grading Committee to be set up to hear and decide disputes relating to
the evaluation of jobs and/or that a procedure to resolve grading grievances
should be agreed upon at plant level - no such process took place and therefore
matter prematurely referred to the Council - arbitration award reviewed and set
aside)
2
JUDGMENT
MAY,AJ
Introduction
[1] This is an unopposed application to review and set aside an arbitration award
emanating from enforcement proceedings between the Applicant and the First
Respondent under section 33 A of the Labour Relations ~ct 1 (LRA). The
dispute placed before the second respondent, who was the d ly appointed
arbitrator in the proceedings, was whether the Applicant had contravened the
provisions of the Main Collective agreement of the First Respondent. The
current review application has been brought in ~erms of section 145 as read
with section 158( 1 )(g) of the LRA.
[2] In an arbitration award dated 4 December 2023, the second respondent
decided that the Applicant ha not co·mplied with the Main agreement in that
19 of their sewing machinists were-incorrectly graded, that there is no basis for
the Applicant's objectron to the compliance order and that the matter should be
scheduled for arbitration. It is this award of the first respondent that forms the
subjeGt matter of the review application brought by the applicant.
Backgrounci,to the dispute
[3] Jh~ Applicant is one of the largest textile manufacturers in South Africa and
manufactures home textile products including bed linen, pillows, sheets, duvets
and scatter cushions. The Applicant has been a member of the First
Respondent since its formation in 2006.
[4] On 29 September 2022, the First Respondent issued an inspection report and
compliance order to the Applicant alleging that the Applicant was not compliant
1 Act 66 of 1995, as amended .
3
with the Main Agreement for the Textile Industry in that the First Respondent
was of the view that the Applicant had failed to allocate the correct salary grade
to their sewing machinists. It is common cause that the Applicant, at the time,
employed 36 sewing machinists, 19 of whom were graded as grade 2
machinists and 17 as Grade 3.
[5] Applicant objected to the compliance order on the basis that it disputed the First
Respondent's determination in respect of the grade to be allocated to the
position of sewing machinist within the Applicant's business. The matter was
accordingly referred to the Second Respondent to arbitrate·the dispute between
the parties.
The evidence
[6] At the arbitration, the First Respondent called Deon Simons as their sole
witness. He is not a designated agent of the first Respondent, who would
normally give evidence at compliance proceedings, but in fact the Provincial
Secretary for SACTWU (The Sbuthern African Clothing and Textile Workers
Union). His testimony was that sewing machinists had complained to SACTWU
that they were not being g(aded properly by the Applicant and thus referred the
matter to the First Respondent He testified that he had personally participated
in the wage negotiations that led to the conclusion of the Wage agreements for
2022/2024 .
[7] He t,estified that the employees concerned are classified as Operators and
should be graded as Grade 3 employees. He testified that there are 5 grades
of employees , grade 1 being your general worker or cleaner, grade 2 is an
employee with no thinking, just doing normal work that they are told to do and
grade 3 is machine operators or machinists, grade 4 would be senior operators
or machinists or versatile machinists and grade 5 would be supervisors.
[8] He testified and referred to clause 2.7 of the agreement that provided that the
parties agreed to meet outside of the negotiations to re-evaluate the grading
structure and create a grading committee. He confirmed that the employer and
structure and create a grading committee. He confirmed that the employer and
Union had not met to engage on the grading committee or to reach agreement
4
on the grading of employees. His evidence was that the Union tried to unlock
these discussion with the employer association but didn't get any joy from the
employers.
[9] He was then referred to the 2007 Main agreement and read into the record the
post description of a grade 2 attendant-assistant and grade 3 machinist. His
contention was that the person that operates a machine is an operator and not
an attendant-assistant and therefore should be graded at grade 3. He disputed
the grading system used by the Applicant and disputed that operators were
placed in the correct grade even though the correct gradi~g system was used
(the Paterson grading system). He also referred to clause 4.8 which provided
for a Job Grading Committee to be set up to hear and decide disputes and/or
appeals relating to the evaluation of jobs. The decision of the job grading
committee should be by simple majority based on a s ecret vote and should be
final and binding. The committee should consist of an equal number of
employer and employee representatives and should the committee not be able
to reach a decision, either part, would have the right to utilise applicable
procedures in terms of the applicable law. Mr Simons confirmed that he was not
aware whether a gradi~committee liad been established at the Applicant.
[1 O] Mr Simons ende~ his evidence by confirming that, with reference to the
amendments and consaHdated Main agreement, the version offered by the
Applicant that the 19 -employees in question were sewing machinists and thus
graded under grade 2 and not grade 3 was incorrect. He likened them to the
defihed sewing machinists in the blanket section of the agreement who were
graded at grade 3 and that in the Textile section, the employees are operators
and hus should be graded at grade 3 and not grade 2.
[1 1] Unc:ler cross-examination, he confirmed that the blanket section and home
textile sections are distinct. It was put to him that his contention that an
textile sections are distinct. It was put to him that his contention that an
attendant assistant at Grade 2 should be regarded as an Operator at Grade 3
because they operate a sewing machine was problematic because it would
mean a grade 1 employee would needed to be graded higher just because they
as part of their duties operate some kind of machine. A vacuum cleaner was
used as an example. It was also put to him that the job descriptions in the
5
agreement was generic and that not all employers use those generic titles. He
also confirmed that in the Home Textile sector the Paterson grading system is
used. He confirmed that if the Paterson grading system grades a particular job
as grade 2, then it would be safe to rely on that grading system.
[12] He maintained during cross-examination that a machinist who is finishing and
completing a product must be graded at grade 3 according to ther level of skill.
The fallacy of the contention was pointed out subseqeuntly in cros&examination
when Mr. Nhliziyo, appearing for the Applicant, attempted to show that on such
a literal interpretation of the agreement, a sewing machintst whp doesn't have
~
a Grade 10 qualification could never be graded at Grade 3. •
[13] Applicant called Ms Robyn Mare as their first wttnesses and her evidence in
essence was that she was an associate at Willis Towers Watson at the time and
that she had analysed the organisation and had conducted a job evaluation for
the posts of Quality, Safety, Health and Environment and for the sewing
machinists. She compiled a report of the evaluation and confirm that she used
the Paterson Plus electronic toor to conduct the grading. This is a software
programme used to rade jobs scientifically and produce an outcome.
According to her evaluation, using the relevant factors as testified to, the sewing
machinists were g~ed as Paterson grade A 1 to A3. She then discussed the
grade with the Manager concerned and they then took the job context in line
and went through the scoring sub factors. The sewing machinists were then
ultimately graded as A3.
[14] During cross-examination she conceded that, if regard is had to the generic
titles in the main agreement, a sewing machinist would equal an operator in
terms of the main agreement. She did state however that there would be
differing levels of operators to consider. She stated that in her professional
opinion there is a misalignment between the grade 3 generic title as per the
opinion there is a misalignment between the grade 3 generic title as per the
main agreement and the definition. Her view is that the generic title of operator
is too broad to match the descriptor. She further confirmed that she is aware
that the Applicant has 2 levels of operators being grade 2 and grade 3 operators
and she stated that they have different job titles and different job descriptions.
6
[15] The Applicant's final witness was Stephen Rubidge who is the Deneb Group IR
Executive of which the Applicant is a subsidiary. He oversees all lR and HR in
the Group.
[16] His testimony, in essence, was that sewing machinists referred to in the
compliance order issued by the First Respondent have always been graded on
grade 2 or Paterson A3/B1 grade as per the main agreement on tt}e Home
Textile table. He confirmed that the response from the First Respondent to their
objection to the compliance order was that machinists/operators should be
graded at 82 and not A3/B1. He testified that the First Respondent gave no
reason as to why the sewing machinists should be graded as such. The First
Respondent accepted that the Paterson method of grading is conect and thus
the First Respondent's grading method to the contrary seemed arbitrary.
[17] He confirmed that Willis Towers Watson.were apppinteg to do a job evaluation
and grading in 2022 and they had, after undertaking a scientific process to
make the necessary determination, determined that the relevant grade would
be A3. He confirmed that the main agreement requires that procedures to
resolve grading grievances .· :houfcf Be agreed upon at plant level. He stated that
this was so because the Frrst R spondent is not equipped to grade jobs as this
requires a full understanding of the job and following a process relative to each
class of employee.
[18] He further cor1firmed that other employers in the industry have graded their
sewihg ~aeftin ists at Grade 3 but that was because the First Respondent had
indicated to tl)em that they would be marked as being non-compliant if they
·didn't
During cross- examination he was asked why the issue was not presented to
their grading committee to resolve. He stated that no grievance was ever
presented to them by anyone or the Union of any unhappiness relative to the
grading. If a grievance had been raised, then due process would have followed
grading. If a grievance had been raised, then due process would have followed
in terms of the agreement. The first time they heard about a complaint was
when the designated agent raised it with them. It was put to him that he ought
to have referred the matter to the grading committee to make a determination
7
instead of appointing an external consultant to do the grading. He confirmed
that he was unaware of the grievance and had he been aware they would have
referred the issue to the committee as required.
The award
[20] The arbitrator correctly identified the main and crisp issue for her to determine
as being whether the sewing machinists were correctly graded at grade 2. She
finds that she accepted the version preferred by the First Respondent that an
operator and a sewing machinist is one and the same thing and uses Ms Mare's
confirmation in support thereof. On this basis she concludes that the agreement
clearly reflects that an operator should be graded at e 3 and stated that no
exceptions are listed.
[21] She further confirms that if there were any di&pute about the grading, the parties
are required to follow that process which, according to the agreement, is that
parties should agree on procedures to resolve grading grievances at plant level.
She further states, correctly in this Court's view, that the job grading exercise
undertaken by the Applicant without agreeing with the Union on the procedure
to follow to resolve the rading grievance was arbitrary and that the aggrieved
party should have u tilised he provisions in the agreement to resolve any
dispute.
(22] She also, correctly in this Court's view, refers to clause 4.8 of the 2007
agr~ment as stitl being applicable as well insomuch as it hadnt been amended
by the subsequent versions of the agreement. The contention being that a
~ ess or hearing of the dispute releative to the grievance should have taken
,pfaee.
She then finds that she is persuaded by the evidence that the 19 sewing
machinists were graded incorrectly, that the Applicant's objection is unfounded
and the matter should proceed to arbitration on the merits.
Grounds of review and evaluation
[24] Applicant contends that, the award is reviewable on the basis that:
8
24.1 The arbitrator committed a gross irregularity in that she failed to apply
her mind to the evidence before her which demonstrated that the grade
2 machinists were in fact correctly graded. A reasonable arbitrator
would have concluded that the Applicant had correctly graded its grade
2 sewing machinists;
24.2 She misconstrued the evidence placed before her and the factors she
ought to have considered to arrive at the correct decision when she
accepted that an operator and a sewing machinist is pne and the same
j
thing; and
24.3 She committed misconduct in relation to her duties as an arbitrator
when she failed to allow the Applicant's representative to sit in on the
proceedings.
[25] The First Respondent, did not oppose the application.
[26] The applicant sourced the legal basis for its review application in section
158(1 )(g) of the LRA, which empowers this Court to review the performance of
any function provided for in the LRAon any grounds that are permissible in law.
Grounds permissible in law would include a material error of law and/or where,
owing to an error_ of law, an arbitrator misconstrues the true nature of the dispute
and asks herself the wrong question, thus depriving the parties of a fair trial of
the issues. This Court must ask itself whether the decision arrived at by the
arbitrator was on_e that no reasonable arbitrator could have come to. If the
answer to that is in the affirmative then the decision falls to be set aside.2
[27]
'
lt i always necessary and important for the Court to enquire into and consider
the merits of the matter and the entire evidence on record in deciding what is
reasonable.3 In Herholdt v Nedbank Ltd and Another4 the Court said:
' ... A result will only be unreasonable if it is one that a reasonable arbitrator
could not reach on all the material that was before the arbitrator. Material errors
2 Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) BCLR 158 (CC) at para 119 ( Sidumo).
2 Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) BCLR 158 (CC) at para 119 ( Sidumo).
3 Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at para 41.
4 Herholdt v Nedbank Ltd (COSATU as amicus curiae) [2013] 11 BLLR 107 4 (SCA) at para 25.
9
of fact, as well as the weight and relevance to be attached to the particular
facts, are not in and of themselves sufficient for an award to be set aside but
are only of consequence if their effect is to render the outcome unreasonable.'
[28] In sum, the review test has a logical chronology. First, it is determined if there
is a failure or error on the part of the arbitrator. Second, and where there is such
a failure or error, it must be shown that the outcome arrived at by the arbitrator
was unreasonable as a result. This reasonableness consideration envisages a
determination, based on all the evidence and issues before the arbitrator, as to
whether the outcome the arbitrator arrived at can nonetheless be sustained as
a reasonable outcome, even if it may be for different reasons or 0!1 different
grounds.5 It would only be if the outcome arrived at by the arbitrator cannot be
sustained on any grounds, based on that material, and the irregularity, failure
or error concerned is the only basis to sustain the outcome the arbitrator arrived
at, that the review application would succeed. 6
Application
[29] There is no doubt that both parties had the chance to have their say in relation
to the matter, the arbitrator correctly identified the dispute as determining
whether the probal;>ilities favoureo the evidence of the Applicant or the First .,
Respondent and the arbitrator understood the nature of the dispute clearly, as
is apparent from the award.·The applicant challenges the fact and disputes that
the arbitrator dealt with the substantial merits of the dispute and accordingly
chpfJenges that the decision is one that a reasonable decision-maker could
reasonably have arrived at. This Court is of the view that whilst the arbitrator
did apply her mind to the facts and the evidence, that her findings that an
operator and a sewing machinist are one and the same is in fact supported by
the evidence of the witnesses, she did commit a gross irregularity when she
the evidence of the witnesses, she did commit a gross irregularity when she
ailed to allow the Applicant's representative to sit in on the proceedings. The
5 See: Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and
Others (2008) 29 ILJ 964 (LAC) at para 102.
6 See Campbell Scientific Africa (Pfy) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para
32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453
(LAC) at para 12.
10
irregulairty however does not alter the outcome and is immaterial in the
circumstances .
[30] Her find ing however that the 19 sewing machinists are in fact incorrectly graded
is, in this Court's view, premature and therefore unreasonable.
[31] In what can be regarded as one of the leading cases dealing with the parol
evidence rule, Scottish Union and National Insurance Company Limited v
Native Recruiting Corporation Limited 7 one finds the following:
"Now in construing a contract we must not only consider the intention of one
party, as we do in construing a will or an act of the legislature, but we must see
what both parties intended, and we must guard ourselves against making a
contract for the parties. We have no right, because we may think that the
contract is a hard bargain, to lean towards a construction more reasonable to
the insured than the contract constituted by the words of the document ... We
must gather the intention of the parties from the language of the contract itself,
and if that language is clear, we must give effect to what the parties themselves
have said; ... it has been re¢eatedly decided in our courts that in construing
every kind of written contract the-court must give effect to the grammatical and
ordinary meaning of the words used therein. In ascertaining this meaning, we
must give to the words used by the parties their plain, ordinary and popular
meaning1 ·unless it appears clearly from the context that both the parties
intended them to bear a different meaning. If, therefore, there is no ambiguity
in the words of the contract, there is no room for a more reasonable
interpretation than the words themselves convey. If, however, the ordinary
sense of,the words necessarily leads to some absurdity or to some repugnance
or inconsistency with the rest of the contract, then the court may modify the
words just so much as to avoid that absurdity or inconsistency but no more."
(My emphasis.)
words just so much as to avoid that absurdity or inconsistency but no more."
(My emphasis.)
[32] These principles have consistently been followed in our courts. In Total SA (Pty)
Ltd v Bekker NO8 Smalberger JA said:
7 1934 AD 458 at pp 465 to 466.
8 1992 (1) SA617 (A) at pp 6241 to 625 B.
11
"What is clear, however, is that where sufficient certainty as to the meaning of
a contract can be gathered from the language alone it is impermissible to reach
a different result by drawing inferences from the surrounding circumstances
... .. The underlying reason for this approach is that where words in the contract ,
agreed upon by the parties thereto, and therefore common to them, speak with
sufficient clarity, they must be taken as expressing their common intention ..... "
[33] What is accordingly very clear is that, where a court, or a Commissioner of the
Commission for Conciliation, Mediation and Arbitration for that matter, is tasked
.:•
to interpret a written contract, or as in the present case, a Colfective Agr:eement,
it must give to the words used by the parties their plain, ordinary and popular
meaning and if there is no ambiguity in the words of the contract, they must be
taken as expressing the parties' common intention.
[34] A perusal of both the transcript of the arbitration. proceedings as well as of the
arbitrator's award does not yield any in . ,1cation of the.fact that the Arbitrator was
alert to the fact that she had to first of all make a determination whether the
words of the Collective Agreement were unclear or ambiguous. A perusal of the
transcript of the arbitration J:>,roce ings as well as the arbitrator's award further
discloses that the way tti arbitrator herein approached the matter was that she
simply assessed the evide ea duced before her, which evidence did not at
all deal with w~Uhe 1ntentiot1 of the parties were at the time of entering into
the Collecti)'le Agreemen . Had she considered the Collective agreement
approptiaJely she wou d not have proceeded beyond her finding that it provides
•.
for Job, Grading~Committee to be set up to hear and decide disputes and /or
appeal relati!)g to the evaluation of jobs and/or that a procedure to resolve
grading grievances should be agreed upon at plant level. It is clear that a
grading grievances should be agreed upon at plant level. It is clear that a
ctispute has arisen in this respect activating the relevant provisions related to a
djspute at plant level. What the First Respondent ought to have done in these
'circumstances is facilitate the dispute resolution provisions provided for in the
main agreement so that a proper grading could be agreed upon.
[35] This grading may accord with the interpretation offered by Mr Simons from the
Union or it may accord with the expert opinion of Ms Mare. In either event, the
First Respondent and consequently this Court, must guard against the
12
temptation to substitute what they regard as reasonable, sensible or
businesslike for the words actually used because to do so in regard to a statute
or statutory instrument is to cross the divide between interpretation and
legislation; in a contractual context it is to make a contract for the parties other
than the one they in fact made.9
[36) Her findings are therefore unreasonable in the circumstances in th·. respect
and as a result cannot stand. A reasonable arbitrator would have conctuded
that the dispute is premature and should be referred back to the parties to
comply with the Collective agreement in relation to the d' .putes in respect of
grading grievances. As such the award is not reasonable and stands to be
reviewed and set aside. It also follows that the determination that the Applicant
is non-compliant is also premature and the Applicant is accordingly entitled to
be considered compliant until such time as dispute around the grading is
determined.
Costs
[37) In terms of the provisions of sectron 162(1) of the LRA, this Court has a wide
discretion where it com-~ to the issue of costs. This Court has said with regard
to costs in employment disputes in Union for Police Security and Corrections
Organisa tion v SA Custodial Management (Pty) Ltd and Others10 in exercising
this discretion, which is that when making a costs order in a labour matter, a
presiding offi~ r is required to consider that costs are not ordinarily awarded,
the principle of fairness must be considered, and due regard must be had to the
conduct of the parties.
[38)
'
h:1 this instance, the case had some complexity I novelty to it. The applicant
acted reasonably in pursuing the review application, given the award of the
Second Respondent and the First Respondent, correctly in the Court's view, did
not oppose the application. Overall considered, in my view, the scales where it
9 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.
9 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.
10 (2021) 42 ILJ 2371 (CC) at para 35. See also Zungu v Premier of the Province of Kwa-Zulu Natal and
Others (2018) 39 ILJ 523 (CC) at para 25; Long v South African Breweries (Pty) Ltd and Others (2019)
40 ILJ 965 (CC) at para 30.
13
comes to costs are equally balanced, and as such, the ordinary principle as set
out above that costs do not follow the result should carry the day. Therefore, I
am satisfied in this case that no order as to costs is appropriate and would be
fair.
Conclusion
[39] It follows therefore that the application should be granted. Su~ltution is
appropriate where the full record is available to the court and where a judge is
in the same position as a commissioner would be to make an appropriate
award. The correct finding ought to have been that the dispute has been
prematurely referred to the First Respondent and that the issue should be
referred to the Job Grading Committee to hear and decide the dtspute in terms
of the Collective agreement.
[40] In the premise the following order is
Order
1. The arbitration award is reviewed and set aside.
'
2. The award is substituted with an award that the dispute referred to the
First Respondent is premature and should be referred to the Job Grading
Committee of the Applicant to hear and determine the dispute related to
the evaluation of the relevant sewing machinists.
3. ~ ach party will pay their own costs.
C. May
Acting Judge of the Labour Court of South Africa
14
Appearances:
For the Applicant Mr. C Nhliziyo, Edward Nathan Sonnenberg Inc.