National Union of Metal Workers of South Africa v Commission for Conciliation, Mediation and Arbitration and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Kroon AJ |
| Judgment Date | 08 December 2022 |
| Citation | 2023 JDR 2625 (LC) |
| Hearing Date | 06 July 2022 |
| Docket Number | PR 117/21 |
| Court | Labour Court |
Kroon AJ:
Introduction
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Kroon AJ
This matter requires the Court to consider the ambit and scope of the definition of a ‘workplace’ as envisaged by the Labour Relations Act [1] (LRA).
It was Shakespeare’s Juliet who questioned the significance of a name. In her soliloquy she ponders:
‘What’s in a name? That which we call a rose
By any other name would smell as sweet.’ [2]
Centuries later, the controversial American conservative political commentator, Benjamin Shapiro, would express a different view on the subject. In an animated gender debate at Ferris State University in Michigan, he engaged a young female student on the topic of whether girls should be allowed to become members of the Boy Scouts organisation. An extract from the debate follows:
‘Shapiro: I’m saying that the Boy Scouts have a standard. You must be a biological boy to be a Boy Scout. You have to be a boy to be a Boy Scout.
Young woman: Where is that written, though?
Shapiro: In the name, ‘Boy Scouts’. . .’ [3]
Turning to the facts of this matter, I suppose the rhetorical question may similarly be posed as to where it is written that a ‘workplace’ (own emphasis) must be an actual place.
The issue for decision
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Kroon AJ
I have before me a review application brought by the Applicant (NUMSA) impugning an arbitration award issued by the Second Respondent (Commissioner) under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA). The review application is opposed by the Third Respondent (Mercedes-Benz).
The dispute which gave rise to the award arose from an application by NUMSA for organisational rights envisaged by the LRA. Importantly the organisational rights were not sought in respect of a place as is conventionally done but rather for the benefit of a category of employees. The organisational rights were sought in respect of the salaried Mercedes-Benz employees who fall within salary bands 6 to 9 (the Group). When Mercedes-Benz refused to grant the organisational rights in respect of the Group, NUMSA approached the CCMA for relief in terms of section 21 of the LRA.
The Commissioner determined that he did not have jurisdiction to entertain the merits of the dispute. He did so on a few grounds. Both Mr Kirchmann, who appeared on behalf of Mercedes-Benz, as well as Mr Grogan, who appeared on behalf of NUMSA, were ad idem that the decisive part of the Commissioner’s ruling was his finding, to the effect, that a category of employees within an employer’s organisation could not constitute a workplace. They indicated that the Court should, in its judgement, adopt the course, ante omnia, of addressing the issue as to whether the finding so stated should be endorsed or rejected.
I agree. The Court’s pronouncement on this issue will be dispositive. If the premise underlying the dispute pursued by NUMSA is flawed i.e. the premise that organisational rights can be claimed in respect of a category of employees, then caedit questio. NUMSA’s dispute will be extinguished. If however the Commissioner erred in this regard then upsetting the Commissioner’s finding on this point would pave the way for NUMSA to continue its quest for organisational rights in respect of the Group, the remainder of the jurisdictional objections, save possibly for one pertaining to the existence of a collective agreement (see below), being procedural in nature and thus remediable by way of a further referral to the CCMA or otherwise.
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Kroon AJ
To place the matter in its broader context I mention that, at the arbitration, it was not in dispute that NUMSA already enjoys organisational rights in respect of hourly paid employees at the East London premises of Mercedes-Benz. These organisational rights, the Commissioner was informed, as was I, were granted to NUMSA animo contrahendi and arise from the provisions of a collective agreement which was concluded between NUMSA and Mercedes-Benz.
The collective agreement was not however before the Commissioner nor was it before this Court. It was not relied on by the Commissioner to make his award. In such circumstances, I am reluctant to make a pronouncement on the interesting question as to whether the existence of the collective agreement would, in and of itself, constitute a bar to NUMSA pursuing its complaint about organisational rights. On the face of it, it seems contradictory to conclude a collective agreement about organisational rights yet, in the same breath, to contend that there is a dispute about organisational rights. One would have thought that it was only in the absence of a collective agreement that such a dispute could be pursued [4] . The answer to this question may however turn on the terms and conditions of the applicable collective agreement and in particular whether its conclusion was conditional upon the union party reserving the right to pursue further disputes about organisational rights.
Returning to the issue which requires determination, namely whether a workplace can be comprised of a category of employees, the Commissioner, correctly, captured the contesting positions adopted by the parties as follows:
At the commencement of the proceedings the Respondent raised a jurisdictional point and submitted that the Applicant had failed to comply with the formalities set out in Section 21(1) read with Section 21(2) the compliance with
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Kroon AJ
these formalities being compulsory as found in Health & Hygiene Services v Seedat N.O. and Others (J170/99) [1999] ZALC 124.
It is specifically raised that the Applicant has failed to specify its representivity in the workplace as it only submitted its representivity (sic) within a specific job grade and that it had further failed to elaborate on how it sought to exercise the rights which it seeks.
It is argued that organisational rights apply to a workplace and not a specific division or grade and as such the Section 21 notices needs to reflect such.
The Applicant in reply stated that its Section 21 notice is compliant as it clearly indicates the number of employees who are members and the total number of employees which fall into the category. It was further submitted that the sections where the rights are contained are clear on how they are implemented, and it is not necessary to repeat it.’ (Own emphasis)
The Commissioner resolved the controversy about whether organisational rights could be awarded to a ‘specific division or grade’ in terms of section 21 of the LRA, by finding that this was not permissible. He reasoned as follows:
In the present matter it is not disputed that the Section 21 notice references a category of employee which are (sic) employed by the Respondent, it does not set forth the representativeness of NUMSA in the workplace, rather it restricts itself only to the category of employees.
Section 21 is clear that representativeness in the workplace needs to be specified, Section 213 provides the definition of a workplace and it stated (sic) that a workplace means the place or places employees work, the remainder of the definition provides that separate workplaces may exist based on certain
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Kroon AJ
factors but in the present instance the workplace being referred to by both parties in the premises of MBSA in East London.
It is thus clear that although the Applicant has identified the workplace where the employees work it has failed to provide is representativeness in the workplace as is required by Section 21(2)(b).’ (Own emphasis)
It is apparent from a reading of the transcript of the Arbitration proceedings that the NUMSA representative sought, in substance, to persuade the Commissioner to accept the Group per se as constituting a workplace. Although the Commissioner gave as one of the reasons for his determination (that he lacked jurisdiction) the failure by NUMSA to record its representativeness in the workplace, implicit in this finding was a rejection of the contention by NUMSA that it could seek organisational rights in respect of a category of employees.
The process which is envisaged when a trade union (union) is of the mind to acquire organisational rights has been summarised in Workplace Law [5] as follows:
‘A union wishing to acquire organisational rights must inform the employer in writing of the rights it seeks and in which workplaces. Within 30 days of receiving notice, the employer must meet the union and ‘endeavour’ to conclude a collective agreement ‘as to the manner in which the trade union will exercise the rights’. Disputes arising in this process are dealt with by the CCMA, which has jurisdiction to arbitrate only if the union had complied with all the provisions of s 21.
Arbitrating commissioners are enjoined to ‘seek to minimize this proliferation of trade union representation in a single workplace and, where possible, to encourage a system of representative trade union in a workplace’ and to minimize the financial and administrative burden of requiring an employer to
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grant organisational rights to more than one union – clear legislative support for the principle of majoritarianism. The amended Act permits commissioners considering whether a union is sufficiently representative to acquire rights under ss 12, 13 and 15, to take into account ‘the composition of the work-force in the workplace taking into account the extent to which there are employees assigned to work by temporary employment services, employees employed on fixed-term contracts, part-time employees or employees in other categories of non-standard employment’. (Own emphasis)
As appears from what I have stated above, the feature of this matter is that the section 21 notice generated by NUMSA...
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