Bader (Bop) (Pty) and Another v National Bargaining Council and Others (JR197/2001) [2001] ZALCJHB 11 (22 August 2001)

Bader (Bop) (Pty) and Another v National Bargaining Council and Others (JR197/2001) [2001] ZALCJHB 11 (22 August 2001)

The Bargaining Council was not registered for the area in question at the time the dispute arose and therefore lacked jurisdiction to issue the conciliation certificate on 8 February 2001. The correct procedure would have been to refer the dispute to the CCMA. The certificate issued by the Bargaining Council was ultra vires and invalid. The court set aside the certificate and directed the Bargaining Council to conciliate the dispute based on the fresh referral. The court also dispensed with the need for condonation for the late referral, given the circumstances and the conduct of both parties. Costs were awarded to the applicants for their application, while no costs order was made...

Citation
[2001] ZALCJHB 11
Parties
Applicant: Bader (Bop) (Pty) Limited and Another; Respondent: The National Bargaining Council; Respondent: The National Union of Leather and Allied Workers Union (NULAW); Respondent: Jacob Ramathlo & 426 Others; Respondent: The Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 August 2001
Case Number
JR197/2001
Procedural Posture
Review Application / Judgment
Outcome
The certificate issued by the Bargaining Council on 8 February 2001 is set aside as invalid. The Bargaining Council is directed to conciliate the dispute within 30 days based on the fresh referral. Costs are awarded to the applicants for their application; no costs order is made regarding the counter application.
Judges
Pillay
Legal Topics
Jurisdiction of Bargaining Council, Conciliation Certificate, Ultra Vires, Condonation, Referral of Dispute
Labour Law Civil Procedure Jurisdiction of Bargaining Council Conciliation Certificate Ultra Vires Condonation Referral of Dispute

Case Brief

Summary, issues, holding and outcome

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Parties

Bader (Bop) (Pty) Limited and Another

Applicant

The National Bargaining Council

Respondent

The National Union of Leather and Allied Workers Union (NULAW)

Respondent

Jacob Ramathlo & 426 Others

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Bargaining Council had jurisdiction to issue a conciliation certificate on 8 February 2001.
  2. 2 Whether the certificate issued by the Bargaining Council is valid and enforceable.
  3. 3 Whether the dispute should have been referred to the CCMA prior to the Bargaining Council's registration.

Ratio Decidendi

The Bargaining Council was not registered for the area in question at the time the dispute arose and therefore lacked jurisdiction to issue the conciliation certificate on 8 February 2001. The correct procedure would have been to refer the dispute to the CCMA. The certificate issued by the Bargaining Council was ultra vires and invalid. The court set aside the certificate and directed the Bargaining Council to conciliate the dispute based on the fresh referral. The court also dispensed with the need for condonation for the late referral, given the circumstances and the conduct of both parties. Costs were awarded to the applicants for their application, while no costs order was made...

Court Disposition

The certificate issued by the Bargaining Council on 8 February 2001 is set aside as invalid. The Bargaining Council is directed to conciliate the dispute within 30 days based on the fresh referral. Costs are awarded to the applicants for their application; no costs order is made regarding the counter application.

Orders

  • The certificate issued by the first respondent on 8 February 2001 is invalid and set aside.
  • The Bargaining Council is directed to conciliate the dispute on the basis of the fresh referral for conciliation within 30 days.