Association of Mineworks and Construction Union v Chamber of Mines of South Africa and Others (JS611/16) [2016] ZALCJHB 551 (15 December 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JS 611/16

In the matter between:

ASSOCIATION OF MINEWORKS AND

CONSTRUCTION UNION

Applicant

And

CHAMBER OF MINES OF SOUTH AFRICA First Respondent

NATIONAL UNION OF MINEWORKERS

Second Respondent

UASA Third

Respondent

SOLIDARITY

Fourth Respondent

Heard: 11 November 2016

Decided: 15 December 2016

Summary: Exception – claim for unfair discrimination in relation to a category of employees in the gold mining sector. Exception upheld.

JUDGEMENT

MOOKI AJ

Introduction

[1] The third respondent excepts against the statement of claim by the applicant. I refer to the parties as described in the main proceedings. The applicant, in its statement of claim, alleges unfair discrimination regarding a collective agreement as it applies to category 4-8 employees in the gold sector. The respondents are parties to a collective agreement that was extended to the applicant in terms of section 23 (1) (d) of the LRA.

[2] The applicant does not take issue with the collective agreement in the traditional sense. The complaint is somewhat novel: the applicant alleges that the collective agreement itself embodies the unfair discrimination complained of.

[3] The applicant contends that the collective agreement perpetuates discrimination against category 4 – 8 employees on the grounds

of their race, alternatively; status, further alternatively; on an arbitrary ground. The applicant pleads that:

1. Its claim “is an unfair discrimination claim in terms of section 6 of the Employment Equity Act 55 of 1998 (“the EEA”).

2. “The unfair discrimination” is alleged to be on the ground of the race of category 4—8 employees, alternatively, their status, further alternatively, on an arbitrary ground. The applicant pleads that the difference in the standard rate and pay attached to the positions and job functions of category 4—8 employees constitutes an arbitrary ground.

3. Category 4—8 employees in the gold sector “are all or [are] predominantly black employees as defined in the EEA”, and that these employees have been disadvantaged by apartheid and past discriminatory laws and practices in the mining industry concerning remuneration and remuneration increases.

4. Category 4—8 employees are “an independent class of workers” and that their ‘’status’’ is defined with reference to these employees being employed in “specific grades in the workplace”.

5. Category 4—8 employees are amongst the lowest paid employees in the mining industry and many of them have many years of service and some have suffered all the evils of apartheid before 1994.

[4] UASA excepts on the bases that the statement of claim lacks averments necessary to disclose a cause of action because:

1. There are no facts to support the contention that the wage differentiation is based on race;

2. The applicant alleges unfair discrimination based on race in relation to category 4—8 employees whilst not all employees in that category are black;

3. The applicant does not contend that race is a criterion for payment to employees in particular categories;

4. The applicant does not contend that category 4—8 employees perform the same, substantially the same, or work of equal value as tasks performed by higher paid employees;

5. The applicant does not contend that income differentials in the job categories are based on race.

[5] The exception is also on the basis that the claim for unfair discrimination on an arbitrary ground does not disclose a cause of

action because:

1. The applicant does not contend that the difference in the standard rate of pay (i) is irrational; (ii) amounts to discrimination; and (iii) is unfair discrimination; and that

2. The difference in the standard rate of pay cannot simultaneously be the result of the discrimination and the reason for the discrimination.

[6] The applicant, in its written submissions, indicate that its claim is based on section 6 (1) of the EEA. This qualification is material, as part of the UASA’s complaint was that the statement of claim was unclear as to whether the applicant relied on section 6(1) or section 6(4) of the EEA.

[7] Mr. Boda appeared on behalf of the applicant. He submitted that the increases to be paid to the different categories of employees in terms of the collective agreement perpetuate the historical apartheid wage disparities against category 4 – 8 employees; including undermining the dignity and integrity of workers in the workplace.

[8] UASA, as the excipient, is obliged to establish that the statement of claim does not establish a cause of action upon any construction of the claim.[1] The allegations in the statement of claim are taken as established facts for purposes of addressing the exception. This in turn requires the application of the test for unfair discrimination as set out in Harksen v Lane N.O.[2] This court has observed that “discrimination on a particular ground means that the ground is the reason for [the] disparate treatment complaint of.”[3]

[9] The applicant invokes race as a listed ground upon which its claim is based; because category 4 – 8 employees in the gold sector are “all or predominantly” “black” as defined in the EEA. This complaint must first be subjected to the Harksen test. The applicant’s pleaded case is that employees in category 4 – 8 are treated differently with reference to employees in other categories. The issue then is whether such differentiation amounts to “discrimination”. “Discrimination” is presumed where the differentiation is on a listed ground. The pleaded case does not satisfy the Harksen test in so far as the alleged unfair discrimination is in respect of category 4—8 employees. Not all such employees are “black”. UASA is thus correct in its objection that the pleadings do not disclose a cause of action in so far as the applicant invokes race as a listed ground in the treatment of category 4—8 employees.

[10] The applicant also pleads “status” as an alternative ground for the claimed unfair discrimination. Such status is with reference to category 4—8 employees being employed in “specific grades in the workplace”. The applicant does not plead the status of category 4—8 employees in relation to “marital status” or “HIV status”. These are the only two listed grounds in which status could found a complaint for unfair discrimination.

[11] I am satisfied that the exception is well taken. The applicant has not shown that the income differential exists because category 4—8 employees are black. The applicant has also not shown that employment in a particular category is based on race, or that any payment differential in the different categories is based on race. The more fundamental shortcoming in the applicant’s claim is that the claim is on behalf of category 4—8 employees; when not all such employees are black.

[12] The exception in relation to status is also well taken. “Status” on its own is not a listed ground. “Status” as pleaded by the applicant is not a listed ground in section 6(1) of the EEA. The Applicant has not shown that the differential payment as recorded in the collective agreement could possibly,on the pleaded case,be founded to constitute an arbitrary ground within the meaning of Section 6(1) of the EEA.

[13] I make the following order:

1. The exception is upheld.

2. The statement of claim is struck- out

3. The applicant is granted thirty days from the date of this order to amend its statement of case.

4. The Applicant is ordered to pay costs.

__________________

Omphemetse Mooki

Judge of the Labour Court(Acting)

Appearance:

For the third respondent: M Sibanda (instructed by Bester & Rhoodie Attorneys)

For the applicant: F Boda SC (instructed by Larry Dave Inc. Attorneys)

[1] FairOaks Investment Holdings (Pty) Ltd and Another v Oliver and Others [2008] ZASCA 41; 2008 (4) SA 302 (SCA), at para 2

[2] [1997] ZACC 12; 1998 (1) SA 300 (CC) at 325 A-D

[3] Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC) at 197B (emphasis in the original).