Imatu v CCMA (Stellenbosch and Matusa) (CC344/2016) [2017] ZALCCT 1 ; [2017] 6 BLLR 613 ; (2017) ILJ 2027 (31 January 2017) per Steenkamp J.

The labour court reviewed and set aside an award after holding that the arbiter had misconceived the nature of an inquiry when granting organisational rights to another trade union with 15% support.  Certain peremptory factors were not considered.  The matter was sent back to the CCMA for reconsideration by another arbiter.

Excerpts without footnotes

Introduction

[1]   The Independent Municipal and Allied Trade Union (IMATU) seeks to have an arbitration award reviewed and set aside in terms of s 145 of the LRA.[1] In terms of the award, Stellenbosch Local Municipality[2] was ordered to grant organisational rights to a rival trade union, MATUSA.[3]

[2]   MATUSA was formed as a breakaway union from the South African Municipal Workers’ Union (SAMWU). The Registrar of Labour Relations initially refused to register it after an objection by IMATU.  MATUSA appealed to this Court in terms of s 111(3) of the LRA.  The appeal was successful.  In terms of a judgment handed down on 1 September 2015[4], the decision of the registrar refusing to register MATUSA was set aside.  The registrar was ordered to register MATUSA as a trade union in terms of section 96 of the Labour Relations Act and to issue a certificate of registration in its name within 14 days of the order.  He did so.

. . . . .

Background facts

[4]   MATUSA sought to obtain organisational rights at the Stellenbosch Local Municipality (the sixth respondent).

[5]   The parties could not reach agreement. MATUSA referred a dispute to the CCMA in terms of s 21(8C) of the LRA.  That subsection[1] reads:

‘Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of subsection (7) grant the rights referred to in sections 12, 13 or 15 to a registered trade union, or two or more registered trade unions acting jointly, that does not meet thresholds of representativeness established by a collective agreement in terms of section 18, if—

(a)             all parties to the collective agreement have been given an opportunity to participate in the arbitration proceedings; and

(b)             the trade union, or trade unions acting jointly, represent a significant interest, or a substantial number of employees, in the workplace.’

The arbitration award

[6]   The arbitrator correctly identified the dispute. Quite simply, he had to decide whether to grant MATUSA organisational rights at the Municipality.

[7]   The parties had conducted a verification exercise. The various unions have the following membership percentages at the municipality:

  • IMATU 29%
  • SAMWU 25%
  • MATUSA 15%.

[8]   It was common cause that the municipality had entered into a collective agreement with IMATU and SAMWU. The South African Local Government Association (SALGA) has also entered into a national agreement establishing a 15% membership threshold for registered trade unions seeking organisational rights in the local government sector.  That agreement was entered into after this Court had ruled that MATUSA should be registered as a trade union in terms of sections 95 and 96 of the LRA.

[9]   MATUSA now wanted to obtain organisational rights at Stellenbosch Municipality. It did so by relying on s 21(8C).

[10]   The arbitrator considered the new provision in s 21(8C) in the following context:

“The rationale for the new amendments of section 21 of the LRA is an attempt to adopt a more holistic approach by broadening/adjusting the scope to grant organisational rights to unions that do not enjoy a majority at the workplace.  The amendments give effect to the principles of freedom of association in that employees have the right to choose their representation and that minority unions can approach the CCMA where they have not been granted organisational rights.  The amendments are also an attempt to provide for the recruitment and protection of workers in atypical forms of employment taking cognisant of the ideal of decent work”.

. . . . .

Review grounds

[13]   Mr Myburgh argued that the Commissioner had misconceived the nature of the enquiry. He was tasked with having to decide whether MATUSA should be granted organisational rights, despite not having met the threshold of representivity established in the national threshold agreement.  He also failed to recognise that the operation of section 21(8C) is “subject to the provisions of subsection (8)”, and thus did not undertake the enquiry envisaged by that subsection.

Evaluation / Analysis

[14]   MATUSA’s quest for organisational rights must be considered in the context of the LRA and of the collective bargaining regime in the local government sector.

[15]   The current parties to the South African Local Government Bargaining Council (SALGBC) are SALGA (representing the employers); and IMATU and SAMWU. They have agreed in the Council’s constitution that another registered trade union – such as MATUSA – may be admitted as an additional party to the Bargaining Council

“provided… that such trade union has a membership equivalent to not less than 15%… of the total number of employees within the scope of the Council”.

[16]   On 9 September 2015 the parties to the Bargaining Council concluded a main collective agreement for the period 1 July 2015 to 30 June 2020. The main agreement includes a threshold agreement for the purpose of organisational rights, confirming that threshold as 15%.  It concludes that any registered trade union with fewer members than the threshold of 15% “will not qualify for any rights set out in sections 12, 13 and 15 of the Act”.

. . . . .

[19]   I agree with Mr Myburgh that, properly interpreted, the requirements of s 21(8C)(b) of “a significant interest or a substantial number of employees” serves as a basis for a commissioner to override a threshold agreement; but it does not, without more, serve as a basis to grant a minority union organisational rights. The commissioner may only grant those rights (set out in ss 12, 13 and 15) if he or she has considered the other factors set out in s 21(8).

[20]   That means that the commissioner in this case should, amongst other things have considered the following factors:

  • He should have sought to minimise the proliferation of trade union representation in a single workplace, i.e. the Stellenbosch Municipality [s 21(8)(a)(i)];
  • He should have sought to minimise the financial and administrative burden on the Municipality to grant organisational rights to a third trade union [s 21(8)(a)(ii)];
  • He should have considered the nature of the workplace, being a single municipality within the local government sector;
  • He should have considered the nature of the organisational rights that MATUSA seeks to exercise; for example, the deduction of trade union subscriptions in a workplace where there is already an agency shop agreement in place;
  • He should have considered the nature of the local government sector;
  • He should have considered the organisational history at the workplace, e.g. the Municipality’s and SALGA’s agreements with IMATU and SAMWU; and
  • He should have considered the composition of the workforce.

[21]   The arbitrator considered none of these factors. He was compelled to do so by s 21(8) read with s 21(8C).  His failure to do so means that he misconceived the nature of the enquiry.  That is a reviewable irregularity.

. . . . .

[25]   In Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM obo Masha  [2016] ZALAC 25; (2016) 37 ILJ 2313 (LAC) para 12 [per Murphy AJA].the LAC applied Herholdt as follows:

“In Herholdt v Nedbank Ltd, the Supreme Court of Appeal held that a review of an award is permissible in terms of section 145 of the LRA if the defect in the proceedings falls within one of the grounds in section 145(2)(a) of the LRA, including the ground of “gross irregularity” in section 145(2)(a)(ii).  For a defect in the conduct of the proceedings to amount to such a gross irregularity, the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result.  In this case, the arbitrator failed to grasp the meaning of the term “not reasonably practicable”, took irrelevant considerations into account and ignored relevant factors.  His interpretation constituted a material error of law resulting in a misconception of the enquiry which prevented a fair and proper determination of the issue of reasonable practicability.”

Conclusion

[28]   The Commissioner’s failure to take into account the peremptory factors set out in s 21(8)(a) and (b) makes the award reviewable.

[29]   The award should be set aside. However, this court is not in a position to substitute its decision for that of the Commissioner.  Another commissioner will have to consider afresh the evidence and submissions of all three trade unions and the Municipality before applying his or her mind to all the factors set out in s 21(8) and s 21(8C).

[30]   A costs award is not appropriate in law or fairness. The dispute has to be considered afresh and MATUSA merely sought to defend its rights arising from the arbitration award in these proceedings.