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[2026] ZALCCT 94
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Merriman BP Service Station (Pty) Ltd v Motor Industry Bargaining Council (Western Cape) and Others (C04/2021) [2026] ZALCCT 94 (15 June 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No:
C04/2021
(1)
Reportable: Yes/NO
(2)
Of interest to other Judges: Yes/No
(3)
Revised
15/06/2026
In the matter between:
MERRIMAN
BP SERVICE STATION (PTY) LTD
and
Applicant
MOTOR
INDUSTRY BARGAINING COUNCIL
(WESTERN
CAPE)
First
Respondent
PIET
VAN STADEN (
N.O
.)
Second
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Third
Respondent
Heard:
16 April 2025
Delivered:
15 June 2026
Summary:
(Opposed review – ruling on
bargaining council’s scope – Retail outlet on garage
premises – errors of law
and interpretation leading arbitrator
to relay on incorrect criteria – interpretation of ‘ancillary
activity’
considered - demarcation award set aside and
substituted)
JUDGMENT
LAGRANGE,
J
The nature of the case
[1]
This is an opposed review application of an
arbitrator’s demarcation ruling made which determined that the
employees in a
Pick n Pay convenience store on the premises of a
filling station fell within the scope of the registered scope of the
Motor Industry
Bargaining Council (‘MIBCO’ or ‘the
council’).
[2]
The issue essentially concerned whether, on
a correct interpretation and application of paragraph g) of the
definition of MIBCO’s
scope, the paragraph included the
business of the Pick n Pay Express store. The provision identifies
the following type of business
as falling within the council’s
scope:
‘
...the
business
conducted by
filling and/or service stations
including
ancillary activities forming part of a service station linked to the
convenience store environment
inclusive
of the preparing, serving and selling of food/beverages to customers
but excluding activities of separately
registered establishments
whose sole
activities relates to the restaurant, tearoom and catering
environment”
(emphasis added)
The appropriate review
test
[3]
While there still reviews of demarcation awards in which the standard
of reasonableness might have a place as the appropriate
review test,
the Labour Appeal Court has distinguished that type of case from
those in which the issue concerns the correct interpretation
of a
statutory provision:
‘
Questions of
interpretation and construction are clearly questions of law,
Reasonableness is not a sufficiently exacting standard
when it comes
to reviewing statutory interpretations. The rule of law does not
permit two contradictory, yet potentially reasonable,
interpretations
of a statute or other regulatory measure by which citizens order
their lives.’’
[1]
[4]
Aside from that type of case, the ‘polycentric and policy
laden’ nature of demarcation awards requiring a
court to apply
a ‘light touch’ on review remains the applicable
standard. In
Deysel
the LAC reaffirmed that:
‘
This approach is
undoubtedly correct where the demarcation award concerns the
application of an agreed interpretation of a bargaining
council’s
registered scope to a given set of facts, and the challenge to the
award assumes the form of a reasonableness review.
But where, as in
the present instance, the issue is the interpretation of the
appellant’s registered scope and a ground for
review that
relies on a material error of law committed by the arbitrator, there
is no room for deference.’
[2]
[5]
As the facts of this case demonstrate, there will sometimes be both a
demarcation ruling which gives rise to a dispute
over the
interpretation of the scope of a registration certificate or
collective agreement and a dispute over the critical facts
which
determine whether a business falls within the correctly interpreted
scope. In such a case, both standards of review
are in play.
The factual matrix
[6]
The Applicant, Merriman BP Service Station (Pty) Ltd (‘Merriman’),
operates a fuel service station in Stellenbosch
under a BP franchise.
In addition to the fuel operation, Merriman also operates a Pick n
Pay Express convenience store located
on the same premises as the
service station, which is also a franchise business. Merriman was
also the applicant party in the CCMA
proceedings.
[7]
The
relationship between the two businesses in the case appears to be
materially indistinguishable from the relationship existing
between
two similar businesses considered in the demarcation award in
Brighton
Motors (Pty) Ltd v MIBCO
[3]
.
The
chief difference between them lies in the level of detailed evidence
before the arbitrator. In
Brighton
Motors
there
was extensive detailed evidence about the businesses, whereas in
Merriman’s
case there was a significant paucity of detailed evidence, so the
arbitrator had very little to deal with. Despite the difference
in
the depth of evidentiary material comparisons between the two cases
can usefully be made. What is particularly noteworthy is
that in
Brighton
Motors
found the Express store did not fall under the scope of MIBCO.
[8]
Merimman is the franchisee in respect of both businesses, which form
part of its business activities. Neither franchise
has a juristic
identity separate from that of Merriman.
[9]
During the evidence, it was established that if the overarching
company were to face financial liquidation, the both entities
would
immediately cease operations and close down Factually, it was also
noted that the store's assets and stock were legally tied
to the
singular entity, meaning the Sheriff of the Court could attach
convenience store assets to satisfy debts incurred by Merriman.
[10]
It is common cause that Merriman’s fuel service station
operations fall within the registered scope of the Motor
Industry
Bargaining Council (MIBCO), and that employees working on the filling
station forecourt are accordingly subject to its
jurisdiction.
Merriman, however, disputes that employees engaged in the Pick n Pay
Express store situated on the same premises
as the filling station
fall within the same scope. Pick n Pay cashier transactions are
processed directly on Pick n Pay system
and they have no capacity to
process filling station payments. Although the level of detail of the
evidence about the independence
of the accounting and payment systems
lacked the detail of the evidence in the
Brighton Motors
matter,
it was not disputed.
[11]
It is common cause and explicitly accepted by both parties that the
Pick n Pay convenience store is located on the exact
same physical
premises as the fuel service station. Likewise, they agreed that the
store offers goods and services commonly linked
to a convenience
store environment, including the preparing, serving, and selling of
food and beverages to customers. However,
whether they served the
same customer base remained indeterminate on the sparse evidence
presented.
[12]
At some stage during the very brief evidence-in-chief of Mr Anmer,
the operations manager, who testified for Merriman,
the following
exchange took place:
‘
MR
VAN VUUREN
: So, Mr Anmer, in your
opinion, if sorry, let me start from here. Does the Pick n Pay store
staff, I am referring to the staff,
only work for the Pick n Pay
Express?
15
Do they support the filling station in any way?
MR
ANMER
: They support.
MR
VAN VUUREN
: So, if the Pick n Pay staff
were to close, hypothetically speaking, would it impact on the
filling station's business?
MR
ANMER
: No, it wouldn't impact on them
at all.
MR
VAN VUUREN
: So, in your view, if that
were to happen,
would
the filling station be able to continue trading without any problems?
MR
ANMER
: Correct. So, we had one occasion
when, by way of example Commissioner, where we had instances where
unfortunately the forecourt
has been shut down due to technical
issues with the pumping system, and a point in case, obviously the
Pick n Pay continues to
trade independently,
while
the forecourt has been shut down.’
[13]
The MIBC contends that the convenience store constitutes an
ancillary activity forming part of the service station
business and
therefore falls within the scope of its registered industry.
The arbitrator’s
reasoning
[14]
The
arbitrator noted various case authorities on how to approach the kind
of determination he had to make. He cited the general
approach set
out in
Greatex
Knitwear (Pty) Ltd v Viljoen & others
[4]
:
‘
"(a)
The meaning of 'industry' as used in the agreement, is determined.
This usually requires the interpretation of some definition
appearing
in the agreement. It seems that a restrictive interpretation is often
applied, cuttinq down the scope of the qeneral
words in the
definition. Although not specifically invoked, the mode of
interpretation appears to be that applied in Venter v R
1907 TS 915
(cf Rex Scapszac and Others
1929 TPD 980
; Rex v Ngcobo
1936 NPD 408
;
Rex v Goss
1957 (2) SA 107
(T) at 110).
(b)
The activities of the employer (personal and by means of his
employees) are determined.
(c)
The activities and the definition (as interpreted) are now compared.
If none of the activities
fall under the definition, caedit quaestio;
if some of the activities fall under the definition, a further
question arises: are
they separate from or ancillary to his other
activities? If they are separate he is engaged in the industry
(unless these activities
are merely casual or insignificant - Rex v
C. T.C. Bazaars (SA) Ltd
1943 CPD 334)
; if they are ancillary to his
other activities, he is not engaged in the industry (unless these
ancillary activities are of such
a magnitude that it can fairly be
said that he is engaged in the industry within the meaning of the
definition (AG Tvl v Moores
SA (Pty) Ltd
1957 (1) SA 190
(A)). (My
emphasis and underlining)
(d)
Inherent in this approach is the possibility that an employer may be
such in more than one industrv
(Rex v Giesker & Giesker
1947 (4)
SA 561
(A) at p 566), despite the difficulties that may arise from
such a situation (cf Rex v Auto-PaHs (Pty) Ltd and another
1948 (3)
SA 641
(T) at 648)."
[15]
The arbitrator began his legal analysis by establishing the core
function of the business, concluding that the primary
and dominant
enterprise of Merriman BP Service Station (Pty) Ltd was fuel sales.
Guided by established demarcation precedents such
as
S v Sidersky
and
Greatex Knitwear,
the arbitrator reasoned that the
character of an industry must be determined by the nature of the
enterprise for which the employer
and employees are associated,
rather than the individual duties of specific workers. Because the
core function of the filling station
business was part of the motor
industry, any secondary or attached activities would fall under that
industry unless they were of
sufficient magnitude to constitute a
standalone business. A consequence of this is that employees
performing exactly the same work,
could fall within the scope of an
industry if their work was integrated within an establishment in the
industry, but might not
do so if they worked in a completely separate
establishment.
[16]
The arbitrator's primary factual finding was that the entire business
operation was conducted under a single, unified
legal entity.
Specifically, the business was registered as Merriman BP Service
Station (Pty) Ltd, trading under the name and style
of the fuel
service station. Both the BP fuel forecourt and the Pick n Pay
franchise shop were owned by this single corporate entity
and
operated on the same physical premises.
[17]
The
arbitrator also considered if the Express store was ‘ancillary’
to the filling station business, having previously
referred to the
characterisation of the concept of ‘ancillary’ in the
judgment of this court in
Coin
Security (Pty) Ltd v CCMA & others
[5]
.
In this regard, he noted that Merriman did not deny that staff of the
Express store were involved in preparing, serving and selling
food
and beverages to customers (of the filling station). Furthermore, he
also placed significant reliance on factual evidence
and witness
concessions regarding the structural dependency of the convenience
store. He found that the Pick n Pay store could
not survive
independently of the BP filling station. Finding that the Express
store was dependent on the existence of the filling
station, the
arbitrator concluded that it was ancillary to the latter.
[18]
The arbitrator interpreted the phrase "separately registered"
strictly to mean separate corporate or legal
entity registration
rather than distinct brand franchising. Because the Pick n Pay store
was not a separately registered corporate
entity from the BP station,
the arbitrator reasoned that the exclusionary clause did not apply
and the shop could not be legally
excluded from MIBCO's scope.
[19]
By way of comparison with the
Brighton Motors ,
19.1 the
filling station and the convenience store establishments were owned
by a single entity in both cases;
19.2 the
franchisors in both instances were BP and Pick n Pay;
19.3 the
employers maintained distinct, separate operating and accounting
systems in each of the two establishments;
19.4 in
Brighton Motors
there was evidence that employees in the two
establishments were not interchangeable, while there was no express
evidence on this
factor in
Merriman’s
case, and
19.5 in
Brighton
the evidence was that the service station could continue
operating if the store ceased to operate, whereas in
Merriman
there was a suggestion in the evidence of the operations manager
that the business of the store was dependent on the existence of
the
filling station.
[20]
The findings of the two awards diverge in important respects, namely:
20.1 in
Brighton
the arbitrator found the Express store was more than
a convenience store and did not form part of the filling station
environment,
but in
Merriman
the arbitrator held that because
the store was dependent on the fuel station’s existence it
supported the main business and
was ancillary to it;
20.2 in
Brighton
the arbitrator emphasised that the filling station
and store were two distinct businesses which answered to two separate
corporate
franchisors, while
Merriman
emphasised the fact the
two businesses were part of one company;
20.3
Brighton
held that the entities were operationally distinct with separate
point-of-sale systems with distinctly determined profit margin
parameters, whereas
Merriman
held that this was not enough to
distinguish one business from the other, and
20.4 the
arbitrator in
Brighton
did not consider the overlap between
the customer base of the filling station and the store, focusing
instead on the fact that customers
of one entity could not pay for
services or products of the other, but
Merriman
found,
drawing support from
Coin Security,
that the Express store
existed to serve and support the filling station’s customers.
The review application
[21]
Merriman’s grounds of review in part concern alleged errors of
law in the interpretation of the provision and in
part rest on the
alleged misconstruction of the evidence.
Error of interpretation
[22]
Merriman argues that the arbitrator misinterpreted the phrase
‘separately registered’ to be a reference to
registration
as a company rather than what it somewhat awkwardly referred to as
‘distinct brand franchising’.
Similarly, it
contends that the arbitrator failed to appreciate that an
‘establishment’ refers to the physical location
of a
business not whether it is a registered company.
[23]
It is undoubtedly true that much of the arbitrator’s decision
rests on his finding that both businesses were owned
by one company,
Merriman (Pty) Ltd and neither had separate juristic identities. A
consequence of this interpretation would be
that if the BP franchise
and the Express franchise held by Merriman were instead housed by
Merriman under two separate companies,
each wholly owned by it, then
the arbitrator would have held that the Express store was not in the
same sector as the filling station.
Thus, merely by rearranging the
corporate entity owning the business, the sector into which the store
fell could be altered.
[24]
A demarcation dispute is concerned with whether certain employees are
employed in a sector or an employer is engaged
in a sector. That is
the jurisdictional mandate of the arbitrator making the determination
as described in
Section 62(1)(a)
of the
Labour Relations Act, 66 of
1995
,
viz:
‘
62 Disputes
about demarcation between sectors and areas
(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;…’
The question is whether
the employee or employer is employed or engaged in a particular type
of economic activity, irrespective
of whether the employer is a
juristic entity or natural person.
[25]
If incorporation as a form of registration was not intended, it does
raise the question what is meant by ‘
separately registered’
?
It would be perfectly conceivable for either or both business
establishments to be owned by different sole traders, and hence
neither being ‘registered’ in the sense of registration
as an act of incorporation under the
Companies Act 71 of 2008
. In the
case of a sole trader owning the Express business and accordingly not
being ‘separately registered’ as a corporate
entity,
would that be the deciding factor whether an establishment ‘
whose
sole activities relates to the restaurant, tearoom and catering
environment’
fell within the scope of MIBCO or not?
Simply posing that question illustrates it would be an absurd basis
for distinguishing
which entity fell with the scope the sector
covered by MIBCO. This interpretation is supported by the use of the
term ‘establishments’
rather than referring to
‘companies’ or ‘employers’
[26]
Although this interpretation does not entirely resolve what was
intended by the phrase ‘separately registered’,
for
present purposes it suffices that it was clearly not intended to
differentiate between employers who were incorporated and
those which
were not. Hence, the incorporated status of the owner or owners of
the two establishments under consideration is not
determinative of
whether a convenience store facility is an activity which is
ancillary to, and forms part of, the filling station.
[27]
By erroneously placing so much reliance on ownership as a criterion,
the arbitrator failed to consider the degree of
operational
interconnection between the store and fueling establishments. Not
only was this an error of law, but it also misdirected
his evaluation
of which facts were relevant.
Failing to apply the
requirement of ancillary activity properly to the facts
[28]
Secondly, Merriman argues that, despite referring to the description
of what constitutes an ancillary business in the
Coin Security
case, the arbitrator failed to appreciate the lack of certain
evidence to support his conclusion that the Express store was
ancillary
to the filling station. Merriman highlights the fact that
there was no evidence that the Express store and forecourt shared the
same customer base which it argues is a pre-requisite for finding
that the store is an ancillary activity forming part of the filling
station. In the absence of proof of a complete overlap between
customers of the filling station and the store, he could not have
found the store was an ancillary activity forming part of the filling
station.
[29]
In finding that the Express store staff were involved in the
preparation and serving of food and beverages to customers,
without
having evidence that they served only existing customers of the
filling station business, the arbitrator reached a conclusion
that
was untenable on the evidence before him.
[30]
This ground of review is not simply a question of the correct
application of the term ‘ancillary’ in the
context of
clause g) of the MIBCO scope, but unavoidably also entails applying
the correct interpretation of the term in that context.
[31]
I am not
sure that it necessarily follows from the description of an ancillary
business in
Coin
Security
[6]
,
that the customer base of a convenience store must completely overlap
with that of the filling station before it can be described
as
ancillary in the sense of servicing the customers of the latter.
The fact that the convenience store may also render a
service to
customers who stop at the premises only to go to the Express store,
would not preclude the store from still performing
an ancillary
function, in the supportive sense, by providing services to all the
customers of the filling station, which is a defined
customer base.
In any event, Merriman is correct that there was no evidence on which
the arbitrator could conclude that the store
only served the filling
station customers
.
[32]
To properly understand the concept of what is ‘ancillary’,
an appreciation of the facts in
Coin Security,
which gave rise
to the interpretation of the term is helpful. They provide a useful
practical illustration of the practical use
of the term in the
demarcation dispute context.
[33]
A 1971 demarcation order under the Industrial Conciliation Act 28 of
1956 determined that the cash-in-transit (CIT) operation
of the
employer was engaged in the Motor Transport Undertaking (Goods) which
fell under the jurisdiction of the Industrial Council
for the Motor
Transport Undertaking (Goods) (ICMTU). More than a decade
later, the company created an assets-in-transit (AIT)
division. In
1996 it unsuccessfully applied for a declaratory order from the High
Court that the main ICMTU agreement did not apply
to it. The
matter came to a head later in 1998 when the company dismissed
striking employees and their union referred the
dismissal dispute to
the Road Freight Bargaining Council, which by then had superseded the
ICMTU. This raised the issue of demarcation
and ultimately an award
was handed down. The employer argued that the transport of goods was
merely incidental or ancillary to
its main business which was
securing the assets. However, the arbitrator found that securing the
assets was ancillary to the transport
thereof, which was the main
business.
[34]
The Labour Court summarised the outcome :
‘
[30] The
commissioner found that
the applicant had failed to prove that the
transportation of assets by its AIT
division is ancillary to
the securing of such assets
. Further that
the main business of
the AIT division is the transportation of assets for reward
.
Ancillary to such transportation is the security element, in that
security is required during the transportation given that the latter
occurs under circumstances often of extreme danger and high risk
.
Transportation by the AIT division is not incidental to securing
the assets but central to the business of the division
. The
applicant's AIT business had not been distinguished from Fidelity
which also operates within the AIT sector defined as the
transportation of goods for hire or reward by means of road transport
in the Republic of South Africa. The sector had for almost
two
decades been demarcated as falling within the road transportation
industry and not the security industry.
The applicant would derive
a competitive advantage against its competitors which would not
promote a system of orderly collective
bargaining at sectoral level
.’
[35]
So, in
Coin
Security
,
the term ‘ancillary’ was used to describe activity as a
necessary incidental activity which supported the main existing
business. However, if one considers the judgment in
R
v Goss
[7]
, in determining if the
limited printing services the seller of printing machinery provided
to its customers, the court in that
case was not looking at whether
that activity was an incidental but unavoidable feature of its main
activity, but to what extent
the machinery maker’s provision of
a limited printing service to its customers entailed it performing a
significant
part of such work. From the judgment, it appears
that it was only the last stage of the process it was involved in and
that did
not require skilled labour to perform.
[8]
This, and the fact that it only provided the service to buyers of the
machines it sold, led the court to conclude that ‘
These
considerations lead me to the conclusion that this branch of the
company's activities can fairly be said to be
ancillary
to its main business
and that the company is not engaged in the Newspaper and Printing
Industry within the meaning of the definition.’
[9]
Contrary to what
Coin
Security
stated, the court in
Goss
did not
state categorically that it was a necessary requirement that an
‘ancillary’ business had to be one that supported
the
existing main business within a defined customer base. Moreover, the
emphasis is on the scale of activities which are not part
of the main
business, as a determinant of whether they are ancillary.
[36]
The dual usage of the word as an adjective is also reflected in the
definition in the Shorter Oxford Dictionary, which
captures both the
sense of ancillary being something necessarily incidental to a
function and that it can merely mean something
additional to a
function:
‘
A. adjective. 1.
Subservient,
subordinate
;
auxiliary
,
providing support; now esp.
providing
essential support
or services to a central function or industry, esp. to hospital or
medical staff’
[10]
[37]
If one interprets the crucial wording in clause g) to refer to the
provision of essential support, it would imply that
the phrase
‘
...the business conducted by filling and/or service
stations including ancillary activities forming part of a service
station linked
to the convenience store environment’
would
read ‘…
the business conducted by the filling and/or
service stations including
essential support activities
forming part of a service station linked to the convenience store
environment’.
It is difficult to conceive what the
essential support activities forming part of a service station
incorporating a convenience
store might include, short of the service
station providing everything needed to run a convenience store. On
the other hand if
one interprets the term in context of the clause to
mean auxiliary or additional, the entire phrase would read: ‘…
the business conducted by the filling and/or service stations
including auxiliary activities
forming part of a
service station linked to the convenience store environment’.
The latter formulation suggests simply that if a filling station
also performs additional functions that include running a convenience
store the store would fall within the ambit of MIBCO, which seems to
make more sense. In any event, if the first interpretation
was
adopted, there was no evidence whatsoever that the filling station
itself conducted any of the functions needed to operate
the Express
store.
[38]
Thus, while the argument that the lack of evidence of the extent of
an overlap between the customer bases is not a complete
answer to
whether the Express store was ancillary to the filling station, it is
apparent that an activity can be ancillary simply
on account of being
a subsidiary component of the business. It also highlights that
an ‘ancillary activity’ of
a business is one that is
conducted by the main business
as part of
its activities.
This interpretation accords better, in my view, with the sense in
which it is meant in clause g) of the MIBCO
scope clause. The lack of
anything more than being on the same premises and owned by the same
company, without evidence of any
operational integration is not
enough to bring the Express store within the scope of the ancillary
activity of the filling station.
[39]
On this basis, the arbitrator’s interpretation of an ‘ancillary
activity’ in the context of the phrase
‘
ancillary
activities forming part of a service station linked to the
convenience store environment’
, as relating to whether the
store was dependent on the filling station and the ‘support’
it gave to the filling station
is not grounded in clause g) was a
clear misdirection.
[40]
Further, he seized on the statement of Mr Anmer that the staff of the
Express store ‘supported’ the filling
station but ignored
his subsequent testimony to the effect that the filling station
business would not be affected by the closure
of the store and
vice-versa.
This is the basis of a third ground of
review that he took the statement that the store staff ‘supported’
the
filling station out of context.
[41]
It is true the Express store would not exist if the filling station
was not there, but that does not make it ancillary
to it, it just
means if there was no filling station, the store could not have been
established on the same premises. In any event
the support relates to
‘ancillary activities’ of the filling station, not to the
historical order in which the businesses
were established.
[42]
The evidence, limited though it was, clearly showed that the filling
station and the Express store were operationally
independent even if
owned by the same entity. Other than the fact that they were on the
same premises and that there was no doubt
a mutual benefit to each of
being located together, the fact that they are complimentary to each
other does not mean the Express
store is subsumed as an incidental or
ancillary activity of the filling station business. Its operation is
not integrated with
those of the filling station.
Conclusion
[43]
The arbitrator’s analysis was superficial and his findings were
the result of him making one or more errors of
law in interpreting
paragraph g) of the MIBCO scope. Had he not made these errors
he would have focused firstly on whether
there were ancillary
activities
of the filling station
which were linked to a
convenience store environment. That would have led him to ask if the
activities of the Express store were
really part of the filling
station’s activities, or conducted independently of it.
It should then have been apparent
that they ran as separate
businesses side by side and that the Express store was not an
activity of the filling station, even in
an ancillary away.
[44]
Accordingly,
he would have come to the same conclusion as the arbitrator in the
Brighton
Motors
matter. In passing, it must be noted that there are circumstances
where it can be said that a convenience store is an ancillary
part of
the filling station business, as illustrated in the arbitration award
of
Bergzicht
Motors (Pty) Ltd and MIBCO
[11]
,
in
which the operational arrangements of the convenience store and the
filling station were more integrated.
[45]
In
the Constitutional Court decision in
National
Union of Metalworkers of South Africa v Commission for Conciliation,
Mediation and Arbitration and Others
[12]
it was held that, despite
the special character of demarcation decisions, a court may
substitute the award of a commissioner if
it is in as good a position
as the commissioner to make the decision and considering whether the
decision of the commissioner was
a foregone conclusion
[13]
.
[46]
Given the limited evidence before the arbitrator, which was
also before the court, and the effect of correcting his errors of
interpretation
I am persuaded that he would not have come to the
conclusion he did reach but that he would have been compelled to find
that the
Pick n Pay Express Store was not an ancillary activity
forming part of the BP filling station linked to the convenience
store environment,
and accordingly did not fall within the scope of
clause g) of MIBCO’s scope.
[47]
On the question of costs, I am satisfied both parties had a
legitimate interest in obtaining certainty on the substantive issue
and it would not be appropriate in fairness or law to make a cost
order.
Order
1.
The demarcation award of the Second Respondent dated 13
November 2020 issued under CCMA case no WECT 8994-20 is reviewed and
set
aside
2.
The said award is substituted with a finding that: The
employees engaged by the Applicant in the Pick n Pay Express store do
not
fall within the scope of the Motor Industry Bargaining Council.
3.
No order is made as to costs.
R
Lagrange
Judge of the Labour Court
of South Africa
Appearances:
For the
Applicant:
--- F Rautenbach
Instructed
by:
---CK Attorneys
For
the Respondent:
---MIBCO
[1]
National
Bargaining Council for the Road Freight and Logistics Industry v
Deysel and others
[2008] ZALC 5
;
[2025]
8 BLLR 790
(LAC) at paragraph 44.
[2]
At paragraph 29. See also
National
Union of Metalworkers of South Africa v Commission for Conciliation,
Mediation and Arbitration and others
[2022] 3 BLLR 209
(CC) at paragraph 52, which also endorsed the
poly-centric test enunciated in
Coin
Security (Pty) Ltd v CCMA and others
(2005)
26
ILJ
849 (LC).
[3]
Case no WECT 5852-19 dated 21 June 2019.
[4]
1960(3) SA 338 (T) at 344H-345D
[5]
[2005] 7 BLLR 672
(LC) : ‘
[58]
….In resolving the question of whether operations are
ancillary, it
should
be borne in mind that 'ancillary to' has a specialized meaning in
the context of demarcation. Ancillary business operations
are
business operations rendering services to existing customers or
clients of the main business. Whilst what is ancillary is
a question
of degree that is not the only enquiry.
Ancillary
business is also required as a matter of both language and law to be
performed as ancillary to or, put differently,
to support existing
business within a defined customer base
(R v Goss
1956 (3) SA 194
(T) at 196).’
[6]
See footnote 4 above.
[7]
1956 (3) SA 194
(T) at 196).
[8]
At 195G-196A
[9]
At 196G-H
[10]
6ed, 2007, OUP.
[11]
CCMA award WECT 13117-19 issued on 9 October 2019
[12]
[2022] 3 BLLR 209
(CC); (2022) 43 ILJ 530 (CC); 2022 (7) BCLR 813
(CC)
[13]
At paragraphs 69-71