Review tests considered: Right to union representation

3 Comments

1. 

   theunis on July 10, 2016 at 11:41 am

   Very true once a employee has completed union aplication,the company has no right,to decide which union the employee should jion,macdonald transport are guilty of not respecting their employees rights,macdonalds transport must be held acountable for their actions,I would like to see amcu to launch a claim in court for damages caused by macdonalds transport to set an example of not respecting the law,further more how do they compensate overtime by paying per kilometer on sundays and public holidays,on overtime worked there are tax to be paid to sars,to pay a driver per kilometer is ilegal,court should set an further investigation for tax evasion and set an example,workers should receive full compensation for damages sufered

2. 

   GilesFiles on October 17, 2016 at 2:10 pm

   A REASONABLE ERROR OF LAW?
   By Anton Myburgh and Craig Bosch
   First published in CCMA News 2016 Issue 2
   

   “In the second case, Macdonald’s Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) and others [2016] JOL 36184 (LAC), the LAC was less ambivalent, with Sutherland JA finding (at para 30):

   “… there is much to be said for the proposition that an arbitrator in the CCMA or in a bargaining council forum who wrongly interprets an instrument commits a reviewable irregularity as envisaged in section 145 of the LRA, i.e. a reasonable arbitrator does not get a legal point wrong. If so, the reasonableness
   test is appropriate to both value judgments and legal interpretations. If not, ‘correctness’ as a distinct test is necessary to address such matters. However, on either basis, the ruling in this case must be set aside.”

   In effect, the LAC here hedged its bets – either an error of law is per se unreasonable or, if not, an error of law should be subjected to correctness review (as errors of jurisdiction, powers and procedural fairness are).

   The finding that an error of law may be subject to correctness review is not controversial, because parties to CCMA arbitration have the right to administrative action that is lawful, which constitutional standard has been found – like reasonableness – to suffuse section 145 (Arends v South African Local Government Bargaining Council [2015] 1 BLLR 23 (LAC) at para 19). An award based on a material error of law probably cannot be lawful, and could thus be reviewed as a gross irregularity (as suffused by the constitutional standard of lawfulness). A comparable approach was adopted in Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA) at para 25, where the SCA expanded the meaning of a gross irregularity to cover unreasonableness.
   By parity of reasoning, it can be expanded to cover unlawfulness.

3. 

   GilesFiles on December 27, 2016 at 5:40 pm

   Reported
   (2016) 37 ILJ 2593 (LAC)
   Reported
   [2017] 2 BLLR 105 (LAC)
   BLLR headnote
   Trade unions – Representation of members – Employer seeking to object to union’s right to represent members in unfair labour practice proceedings – Objection of no force as employees’ right to select representative of choice having nothing to do with employer.