Concor Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for Conciliation, Mediation and Arbitration and Others (J2773/12) [2012] ZALCJHB 190; (2013) 34 ILJ 2217 (LC) (5 February 2012)

Concor Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for Conciliation, Mediation and Arbitration and Others (J2773/12) [2012] ZALCJHB 190; (2013) 34 ILJ 2217 (LC) (5 February 2012)

The court found that neither the sectoral determination nor the substantive collective agreement prohibited AMCU and its members from embarking on protected strike action, provided the requirements of section 64 of the LRA were met. AMCU was not a party to the substantive agreement, and its members were not expressly bound by it. The settlement agreement was concluded under a common mistake regarding the effect of the sectoral determination and was therefore invalid and unenforceable. The dispute over refusal to bargain should have been referred to advisory arbitration under section 64(2) of the LRA, and compliance with this section is a prerequisite for protected strike action. As the...

Citation
[2012] ZALCJHB 190
Parties
Applicant: Concor Projects (Pty) Ltd t/a Concor Opencast Mining; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner C Mokabane (N.O.); Respondent: Association of Mineworkers and Construction Union (AMCU); Respondent: N Titana and further respondents (as per Annexure 'A' to the founding affidavit)
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
5 February 2012
Case Number
J2773/12
Procedural Posture
Urgent Application / Return Day for Confirmation of Interim Interdict
Outcome
Interdict granted in part; strike interdicted until compliance with section 64(2) of the LRA; settlement agreement declared invalid; costs awarded partially against applicant.
Judges
R Lagrange
Legal Topics
Protected Strike Action, Sectoral Determination, Collective Agreement Binding Effect, Refusal to Bargain, Common Mistake in Settlement, Advisory Arbitration
Labour Law Civil Procedure Protected Strike Action Sectoral Determination Collective Agreement Binding Effect Refusal to Bargain Common Mistake in Settlement Advisory Arbitration

Case Brief

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Parties

Concor Projects (Pty) Ltd t/a Concor Opencast Mining

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner C Mokabane (N.O.)

Respondent

Association of Mineworkers and Construction Union (AMCU)

Respondent

N Titana and further respondents (as per Annexure 'A' to the founding affidavit)

Respondent

Procedural Posture

Urgent Application / Return Day for Confirmation of Interim Interdict

Legal Issues

  1. 1 Whether the sectoral determination and substantive collective agreement prohibit AMCU and its members from embarking on protected strike action.
  2. 2 Whether the settlement agreement concluded between the applicant and AMCU is valid and enforceable.
  3. 3 Whether the dispute over refusal to bargain should have been referred to advisory arbitration under section 64(2) of the LRA.

Ratio Decidendi

The court found that neither the sectoral determination nor the substantive collective agreement prohibited AMCU and its members from embarking on protected strike action, provided the requirements of section 64 of the LRA were met. AMCU was not a party to the substantive agreement, and its members were not expressly bound by it. The settlement agreement was concluded under a common mistake regarding the effect of the sectoral determination and was therefore invalid and unenforceable. The dispute over refusal to bargain should have been referred to advisory arbitration under section 64(2) of the LRA, and compliance with this section is a prerequisite for protected strike action. As the...

Court Disposition

Interdict granted in part; strike interdicted until compliance with section 64(2) of the LRA; settlement agreement declared invalid; costs awarded partially against applicant.

Orders

  • Neither the substantive collective agreement nor the sectoral determination prohibit AMCU and its members from embarking on protected strike action, provided section 64 of the LRA is complied with.
  • The settlement agreement concluded on 3 July 2012 is invalid and unenforceable due to a common mistake.