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National Union of Mine Workers v Hernic Exploration (Pty) Ltd (JA13/01) [2003] ZALAC 1 (6 March 2003)

.RTF of original document

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: JA13/01

In the appeal between:-

NATIONAL UNION OF MINE WORKERS                     APPELLANT

and

HERNIC EXPLORATION (PTY)Ltd                        RESPONDENT

________________________________________________________________
JUDGEMENT
________________________________________________________________

ZONDO JP

Introduction
[1]      The Labour Court gave a judgement upholding a point in limine taken by the respondent that the appellant, being a trade union, had no right to refer a dismissal dispute to the Commission for Conciliation, Mediation and Arbitration, ( “the CCMA”) or the Labour Court unless it cited the dismissed employees as its co-applicants in such referral or proceedings. There was another point in limine that the Labour Court dealt with. That point in limine was this: The CCMA is required by statute to attempt to conciliate a dismissal dispute within 30 days from the date on which the dispute was referred to it unless that period has been extended by agreement between the parties. If the dispute remains unresolved, the dispute must be referred the Labour Court, if it is a dispute falling within the jurisdiction of the Labour Court, within 90 days for adjudication failing which the Labour Court will have no jurisdiction. In this matter, so went the point in limine, the Labour Court had no jurisdiction because the dispute was referred to the Labour Court after the expiry of 90 days from the expiry of the 30 day period. The Labour Court dismissed this point in limine. The Labour Court refused leave to appeal against its judgement. The appellant later successfully petitioned this Court for leave to appeal. The appellant then noted an appeal against the judgement of the Labour Court. The respondent noted a cross-appeal against the dismissal of the point in limine referred to above. The appeal and cross-appeal now come before us.

Brief background
[2]      On 1 December 1998 the respondent gave all its employees notices of retrenchment with effect from the 31st December 1998. Some of the employees were members of the appellant which is a registered trade union. A dispute then arose about the dismissal of the employees. On or about the 16th December 1998 the appellant referred the dispute to the CCMA for conciliation. No names of employees or members of the appellant were given in the referral form. In par 3 of the referral form it was stated that the dispute was about “unfair retrenchments”. It was also stated: “The retrenchment will be effective as from 31-12-98.” In par 5 it was stated that the dispute had arisen on the 30th November 1998. The desired results of conciliation were said to be that: “all workers should be recall(sic) and company to follow retrenchment procedure as per signed agreement.”

[3]      The respondent did not attend the conciliation meeting on the date scheduled for it. The statutory 30 day period within which the CCMA was required to conciliate the dispute expired on the 15th January 1999. By the expiry of that period, the certificate of outcome had not been signed or issued. On the 18th February 1999 the commissioner of the CCMA who was assigned to conciliate the dispute signed and issued a certificate of outcome to the effect that the dispute remained unresolved. In the certificate the commissioner reflected the dispute as being between the appellant, as the employee party, and, the respondent, as the employer party. The commissioner referred to the dispute in the certificate as one “concerning alleged unfair dismissals.”

Proceedings in the Labour Court
[4]      On the 28th April 1999 the dispute was referred to the Labour Court by way of a statement of claim. In its heading the statement of claim reflected the appellant and the respondent as the applicant and respondent respectively. Paragraph 1 thereof is important. It read as follows:.
“1        The applicant is the National Union of Mine Workers (“the union”), a trade union registered in terms of the Labour Relations Act, 66 of 1995 (“the Act”), with its head office situated at 7 Rissik Street, Johannesburg. The union acts on its own behalf and on behalf of its members dismissed by the respondent on 31 December 1998.”

[5]      In par 3 of the statement of claim more was said about the dispute. Par 3 read:
“The dispute arising out of the dismissal of union members was referred to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) on 23 December 1998. On 18 February 1999 the CCMA issued a certificate of outcome confirming that the dispute remains unresolved. The dispute is hereby referred to the above court for adjudication.”

[6]      In due course the respondent delivered a response to the statement of claim and later an amendment to the response. The respondent took three points in limine. The first one was to the effect that the dispute had not been referred to the CCMA for conciliation and, that, for that reason, the Labour Court lacked jurisdiction to adjudicate the dispute. In due course the Labour Court dismissed this point. The second objection in limine was taken in paragraphs 2.3 -2.7 of the respondent’s response. Those paragraphs read thus:.

“2.3      The respondent states that in terms of the provisions of Section 191(1) of the Labour Relations Act, only the dismissed employees may refer the dispute to conciliation in terms of the Act. It is submitted that such referral contemplates that the referral must be brought in the name of the dismissed employees with the dismissed employees actually being parties to the dispute. In addition, the referral has to reflect the full name, address and particulars of each of the dismissed employees who are parties to the dispute, and the referral must be signed by such employees. Legal argument in this regard will be addressed to the above Honourable Court at the hearing of this matter;

2.4      In this instance, as appears from the referral document in the respondent’s possession, the dispute was referred in the name of “National Union of Mineworkers”, and does not reflect the names, addresses or particulars of any of the individual employees who were dismissed by the respondent. The document has also not been signed by any of the said employees concerned. In no way whatsoever are any of the said employees identified or is it indicated which of such employees mandated or authorised the referral of the dispute, or are in fact a party to the dispute;

2.5      Of even greater concern is the fact that a list of employees have been identified in the referral of this dispute to the above Honourable Court as being parties to the dispute without such employees in any way being identified as being a party of the referral of the dispute, initially, to conciliation. The respondent is accordingly unable to ascertain or establish that such employees were indeed a party to the referral of the dispute for conciliation and mandated and authorised the referral of the dispute to conciliation by the National Union of Mineworkers;

2.6      As a result, the referral of this dispute to the CCMA for conciliation in terms of Section 191(1) of the Act, is defective, incompetent, and null and void in the circumstances. As a result, there exists no valid referral of this dispute for conciliation in terms of Section 191(1) of the Act. Accordingly, the CCMA had no jurisdiction to conciliate this matter in the first instance, there being no valid referral of the dispute before the CCMA for conciliation;

2.7      As a result, it is submitted that the above Honourable Court has no jurisdiction to entertain this matter, this matter not having been properly and validly referred for conciliation and conciliated in terms of the Act. It is accordingly prayed that the applicant’s application be dismissed with costs, on this basis alone.”

In due course the Labour Court upheld this point. The third objection in limine was the one that has been explained in the first paragraph of this judgement. As already stated above, the Labour Court dismissed that objection in limine. On the basis of the point in limine that it upheld, the Labour Court dismissed the referral of the dispute with costs.

[7]      As already stated above the Labour Court upheld the point in limine that a trade union could not be a party to a referral of a dismissal dispute to the CCMA for conciliation or to the Labour Court for adjudication unless its dismissed members were also cited as co-applicants in such referral or proceedings. For this conclusion it relied, inter alia, on the provisions of sec 200(2) of the Act as well as the judgement of Tip AJ in Librapac CC v Moletsane NO and others (1998) 19 ILJ 1159 (LC) especially par 43 of that judgement.

[8]      In par 39 of his judgement the learned Judge in the Court a quo referred to the certificate of outcome and remarked that:.
(a)      the certificate “was only issued between two parties being the respondent and the applicant union.”

(b)      “none of the individual employees are even referred to or identified in such certificate.”

(c)      (w)hen the matter was referred to [the Labour Court], it was also only referred with the trade union being the only applicant party, and none of the individual employees being cited, described or joined as parties to the dispute . There was not even a list of individual applicants accompanying the applicant’s statement of case, nor were any individual applicants even referred to or identified in such statement of case.” He went on to say at the end of par 39 of the judgement:. “In par 1 of the statement of claim the applicant is cited as the “National Union of Mineworkers, as duly registered trade union, which acts on its own behalf and on behalf of its members dismissed by the respondent on 31 December 1998.”

[9]               In par 41 of his judgement the learned Judge said: “ In this instance [none] of the members of the applicant were cited, identified or joined as parties to the proceedings, both before the CCMA and before [the Labour Court]. Therefore, although the trade union may represent its members and be a party to any such proceedings in terms of section 200 of the Act, it may only do so if its members are a party to the proceedings. The applicant union does not have locus standi to bring these proceedings, as none of its members have been a party to the proceedings.”

[10]     The Court a quo was of the view that, if a trade union instituted such proceedings without the employees also being cited, the proceedings would be defective. In par 41 of its judgment the Court a quo regarded this as meaning that a trade union had no locus standi. I do not think that, on a proper analysis of the matter, this is a question of locus standi. It is a question of non-joinder. If it was a question of locus standi, the contention would not entail that the union can also be an applicant when employees are also applicants in such proceedings.

The appeal

[11]     For some time during argument on appeal there was uncertainty about what the point in limine was that Mr Snyman, who appeared for the respondent, had argued in the Court a quo which was upheld and what the point was that he meant to argue on appeal in defence of the judgement of the Court a quo. In answer to a question from the Bench, Mr Snyman stated that his contention was that the appellant had no right to refer a dismissal dispute - which this one is - to the CCMA or the Labour Court on its own without citing or joining the dismissed employees as co- applicants in the referral or in the proceedings. This makes this contention a complaint of non-joinder. He also submitted that this meant that there had never been a referral in respect of the dismissed employees.


[12]     Apart from relying on sec 200(2) of the Act in support of its finding, the Court a quo also relied on Rule 6(1)(b) of the Rules of the Labour Court and the Librapark decision referred to earlier. Let me quickly dispose of the reliance on Rule 6(1)(b). Rule 6(1)(b) deals with what should be contained in a statement of claim. This includes the names, addresses and descriptions of parties. It has nothing to do with the question of who has a right to institute proceedings in the Labour Court. In this case the union as appellant gave its name, described itself as a registered trade union and gave its address. It did not give the names and other particulars of the employees but its failure to do so cannot deprive it of a right it otherwise has, if it has such a right, to initiate or institute court proceedings in regard to a matter. I shall deal with the Librapac decision later herein.

[13]     The respondent has conceded in its heads of argument that the referral of the dismissal dispute to the CCMA for conciliation was valid. That has not always been the respondent’s attitude. Its attitude in the Court a quo was that the referral of the dispute to the CCMA was defective, invalid, and null and void and, because of that, the Court a quo lacked jurisdiction to adjudicate the dispute. In fact the second objection in limine was precisely about the validity of the referral of the dispute to the CCMA for conciliation.

[14]     As I have already indicated above, the Court a quo relied on sec 200(2) of the Act to support its finding that a trade union cannot refer, or, institute proceedings in, a dismissal dispute unless its dismissed members are also party to such proceedings or to such referral. The respondent also relies on those provisions to defend the decision of the Court a quo. Neither the Court a quo nor the respondent appears to have given proper attention to the question whether the provisions of sec 200(1) are not an answer to the respondent’s objection. It is necessary to quote sec 200 in full. It reads thus:
“Representation of employees or employers-
(1)      A registered trade union or registered employers’ organisation may act in any one or more of the following capacities in any dispute to which any of its members is a party:
(a)      in its own interests;
(b)      on behalf of any of its members;
(c)      in the interest of any of its members.

(2)      A registered trade union or a registered employers’ organisation is entitled to be a party to any proceedings in terms of this Act if one or more of its members is a party to those proceedings.”

[15]     Although the Court a quo referred to both subsections (1) and (2) of sec 200 in its judgement, its focus was on ss (2) and it failed to analyse the two subsections in order to understand their relationship to each other and the different situations to which each one applies. In par 33 of its judgement the Court a quo said:
“In terms of section 200(1) of the Act, a registered trade union may act in any dispute to which any of its members are a party, in its own interests, [or] on behalf of its members.”
Thus far, that was right. However, it said in the following sentence:- “However, in terms of section 200(2), a registered trade union is only entitled to be a party to any proceedings in terms of this Act if one or more of its members are a party to those proceedings.” The Court a quo introduced the word “only” just before the word “entitled”in sec 200(2) when sec 200(2) does not have that word. Furthermore it introduced that word in a manner that suggested that sec 200(2) is prohibitory when in fact it is permissive. In par 35 of its judgement the Court a quo said: “Section 200(2) does not assist the applicant in the predicament that it finds itself in. The subsection permits the applicant union to be a party to the proceedings if one or [more of] its members are a party to those proceedings. It is patently clear from paragraph 1 of the statement of claim, that the only parties to the proceedings are the applicant trade union and the respondent. None of its members have either been cited or joined as parties to these proceedings.”

[16]     It is not clear why the Court a quo only focussed on sec 200(2) in considering the appellant’s answer to the respondent’s contention because there is no indication in its judgement that the appellant had relied only on subsection (2) and not on subsection (1) as well. On the contrary, the Court a quo, itself, had stated earlier on in par 32 of its judgement that Mr Khumalo, who had appeared on behalf of the appellant in that Court, had relied on sec 200 of the Act. He had not confined his reliance on subsection (2).

[17]     The provisions of sec 200(2) could not be relied upon as an answer to the respondent’s objection because they relate to a case where the union’s members are party to the proceedings and it is sought to join the union in the proceedings. In this case the union’s members were not party to the referral of the dispute to the CCMA. Could sec 200(1) be relied upon as an answer to the respondent’s objection? I think so, provided that the union’s members were party to the dispute. They had to be party to the dispute because that is the condition that ss(1) prescribes should exist in order for a trade union to be able to act in one or more of the capacities therein set out. Accordingly it becomes necessary to establish whether the appellant’s members were party to the dispute. This raises the question of how one determines when it can be said that union members are party to a dispute especially when the capacity in which their union is acting in initiating the statutory dispute resolution machinery in regard to such dispute has not been articulated. However, as will be seen below, this is not a new question in the history of our labour law. Our courts have had occasions to deal with this question within the context of previous Acts dealing with labour relations. I deal below with some of the cases in which the question was considered.

[18]     In Town Council of Benoni v Minister of Labour 1930(1) TPD 324 the dispute was about salaries and conditions of employment of certain employees of the Town Council of Benoni. It is not apparent from that decision whether it was the Association of Municipal Employees which applied for the appointment of a conciliation board. It is stated in the decision that there was no information in the papers before the Court indicating whether the Association of Municipal Employees was a trade union or not. What does appear, however, is that the Association of Municipal Employees had written to the Divisional Inspector of the Department of Labour suggesting a conference to consider the salaries and conditions of various employees of the Town Council of Benoni. A conference was held and an agreement was reached on many of the issues. However, no agreement was reached on the salary and conditions of employment of certain employees.

[19]     The dispute was about the salary and conditions of employment of those employees then referred to arbitration to be conducted by an arbitrator appointed by the Minster of Labour. It was argued in subsequent court proceedings that the dispute was between the Association of Municipal Employees and the Town Council of Benoni and not between the employees of the Council and the Council. Tindall J, who heard the matter, rejected this argument. He said at 327: “ In the first place I do not think it correct to say that the dispute is between the association and the local authority. The employees are represented by the Association but the “parties concerned”, to use the language found in sec 4(2), are the employees themselves and the local authority.”

[20]     In O.K Bazaars (1929) Ltd v Madeley N.O and Another 1943 TPD 392 a trade union called the National Union of Distributive Workers had concluded a closed shop agreement with O.K Bazaars (1929) Ltd and certain companies associated with O.K Bazaars. Subsequently a dispute arose whether the company continued to be bound by the closed shop agreement.
In correspondence between the union and the company the union referred to the dispute as being between itself and the company. The union also stated in its correspondence that it would avail itself of sec 64(1) of the Industrial Conciliation Act, 1937 and apply for the appointment of a conciliation board to try and resolve the dispute. Sec 64(1) of the Act applied to disputes between a trade union and a local authority employer. It did not apply to cases where the dispute was between employees and their local authority employer. The conciliation board application form - whether the application was made under sec 35 or 64 - required to be “suitably modified” according to the circumstances when individual employers or employees are the applicants.

[21]     The trade union applied for the establishment of a conciliation board. The application form was not “suitably modified”. The completed application form reflected the union as the applicant. It was stated in the form that five persons, who were described as “employees of the respondent company, being members of the N.U.D.W and also of the shop committee in the Eloff Street store of the said company”, were joined with the union. There was said to be a dispute in the commercial distributive trade between those applicants and O.K Bazaars (1929) Ltd and associated companies. Paragraph 6 of the application form called for certain information and was required to be completed “only when applicant is a trade union.” In that case paragraph 6 of the form was completed by showing that the number of employees who were members of the union was over 10 000 and that the number of the classes of employees catered for “by the union and involved in the dispute was about 3000 all of whom were members of the union.”

[22]     In its concise statement of the dispute the union referred to the dispute as being one between itself and O.K Bazaar (1929) and associated companies. The Minister appointed the conciliation board under sec 64. He gave the board terms of reference to the effect that the dispute was between the union and O.K Bazaar and associated companies. He did not make any reference to the employees who were said to have been joined as applicants as well.

[23]     In dealing with a subsequent application by O.K. Bazaars (1929) Ltd to set aside the appointment of the conciliation board, Millin J found that there was nothing in the documents from which it could be inferred that the union had made the application for a conciliation board otherwise than as principal. He also said that the joinder of the employees in the application for a conciliation board was wholly inconsistent with the idea that the union represented, for the purposes of the application to the Minister, all the company’s employees who were its members. Millin J held that, on the evidence before him, he had no hesitation in holding that the union had applied as a principal and, therefore, not as an agent to the Minister for the appointment of a conciliation board. He noted, too, that the union had referred to the dispute in correspondence as being between itself and the employer. He held that the union’s resort to sec 64(1) as opposed to sec 35 when applying for a conciliation board had been deliberate. He concluded that the dispute was one between the trade union and the employer.