Bobcrete (Pty) Ltd v Building Industry Bargaining Council and Another (C940/2009) [2010] ZALCCT 20 (4 May 2010)

Bobcrete (Pty) Ltd v Building Industry Bargaining Council and Another (C940/2009) [2010] ZALCCT 20 (4 May 2010)

The Commissioner failed to refer the jurisdictional question to the CCMA as required by section 62(3A) of the Labour Relations Act. The three statutory conditions for referral were present: the question had not previously been determined by arbitration, was not the subject of an agreement between councils, and its determination was necessary for the proceedings. This failure constituted a material irregularity, vitiating the award. The Labour Court found it unnecessary to remit the matter to the Commissioner and instead referred the jurisdictional question directly to the CCMA for determination, in the interests of expeditious dispute resolution. The Court declined to make a finding on...

Citation
[2010] ZALCCT 20
Parties
Applicant: Bobcrete (Pty) Ltd; Respondent: Building Industry Bargaining Council; Respondent: Commissioner Stephan Cloete NO
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
4 May 2010
Case Number
C940/2009
Procedural Posture
Review Application / Judgment
Outcome
The award of the Commissioner is reviewed and set aside. The jurisdictional question is referred to the CCMA for determination. No order as to costs.
Judges
Cheadle
Legal Topics
Collective Agreements, Jurisdiction of Arbitrator, Referral to Ccma, Enforcement of Agreements
Labour Law Civil Procedure Collective Agreements Jurisdiction of Arbitrator Referral to Ccma Enforcement of Agreements

Case Brief

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Parties

Bobcrete (Pty) Ltd

Applicant

Building Industry Bargaining Council

Respondent

Commissioner Stephan Cloete NO

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant is bound by the provisions of the main agreement for the building industry.
  2. 2 Whether the Commissioner had jurisdiction to determine the dispute regarding the scope of the main agreement.
  3. 3 Whether the matter should be referred to the CCMA under section 62(3A) of the Labour Relations Act.

Ratio Decidendi

The Commissioner failed to refer the jurisdictional question to the CCMA as required by section 62(3A) of the Labour Relations Act. The three statutory conditions for referral were present: the question had not previously been determined by arbitration, was not the subject of an agreement between councils, and its determination was necessary for the proceedings. This failure constituted a material irregularity, vitiating the award. The Labour Court found it unnecessary to remit the matter to the Commissioner and instead referred the jurisdictional question directly to the CCMA for determination, in the interests of expeditious dispute resolution. The Court declined to make a finding on...

Court Disposition

The award of the Commissioner is reviewed and set aside. The jurisdictional question is referred to the CCMA for determination. No order as to costs.

Orders

  • The award of the second respondent dated 9 October 2009 is reviewed and set aside.
  • The question of whether the applicant is bound by the provisions of the main agreement for the building industry is referred to the CCMA for determination under section 62 of the Labour Relations Act, 66 of 1995.