Harmony Gold Company v National Union Of Metalworkers of South Africa and Others (JR2084/19) [2023] ZALCJHB 357 (5 December 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2084/19

In the matter between:

HARMONY GOLD MINING COMPANY

Applicant

and

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA

First Respondent

DIDA ANDREW MASENE N.O.

Second Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Third Respondent

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION

Fourth Respondent

NATIONAL UNION OF MINEWORKERS

Fifth Respondent

Heard: 5 July 2023

Delivered: 5 December 2023

JUDGMENT

MANCHU, AJ

Introduction

[1] The fifth respondent (NUMSA) referred an organisational rights dispute to the third respondent, seeking organisational rights as provided for in sections 12 and 13 of the Labour Relations Act[1] (LRA) The matter came before the second respondent (the Commissioner), who gave an award that NUMSA was entitled to organisational rights.

[2] The applicant has brought an application to review and set aside the Commissioner’s award. Further to this, the applicant seeks an order substituting the award with an order dismissing NUMSA’s organisational rights dispute, alternatively, remitting the matter back to the third respondent before a different commissioner.

[3] The review application is brought on the grounds that:

3.1 The CCMA had no jurisdiction to arbitrate the dispute and the Commissioner misconstrued the nature of the dispute before him by

finding that it concerned the interpretation or application of a collective agreement. The applicant argues that the Employee Relations Framework policy (ERF policy) was not a collective agreement but a workplace policy and that the dispute before the Commissioner was not one of interpretation or application of a collective agreement, as contemplated in section 24 of the LRA, but rather an organisational rights dispute under section 21.

3.2 The Commissioner erred in finding that the applicant was inconsistent in the granting of organisational rights.

3.3 The Commissioner made findings of fact despite the fact that neither party led any evidence.

Summary of facts

[4] The applicant is a gold mining company that has mining operations across South Africa. NUMSA is one of the active trade unions at the applicant’s operations.

[5] In March 2018, the applicant adopted the ERF policy. As appears from the ERF policy itself, the policy was created to create an inclusive employee relations framework and to provide mechanisms and infrastructure to enhance consultation and communication between the parties.

[6] The ERF policy defines “representation” or threshold to include:

6.1 “Majority Representation” shall mean verified membership of the Trade Union (or two or more registered Trade Unions acting jointly) in the Bargaining Unit of 50 % plus 1 of the Employees at an Operation.

6.2 “Most Representative” shall mean a Trade Union that has the largest number of verified members of the Employees within the Bargaining Unit at Operation.

6.3 “Significant Representation” shall mean verified members of the Trade Union (or two or more registered Trade Unions acting jointly) in the Bargaining Unit of between 35 % and 50 %.

6.4 “Sufficient Representation” shall mean verified membership of the Trade Union (or two or more Trade Unions acting jointly) in the Bargaining Unit of 20% plus 1 or higher of the Employees at an operation.

[7] The applicant maintains that NUMSA does not meet any of these thresholds. NUMSA in turn insists that it does and that it is “sufficiently represented” at the applicant’s Kusasalethu operation.

[8] NUMSA referred a dispute to the CCMA, in terms of sections 12, 13 and 14 of the LRA. Of significance, NUMSA’s referral form does not make any mention of section 24 or state that the issue involves the interpretation or application of a collective agreement.

[9] Section 12, deals with Union access to the workplace. It inter alia provides that an office bearer or official of the trade union is entitled to enter the employer’s premises in order to recruit

or communicate with members and that a trade union representative is entitled to hold meetings with employees outside their working hours at the employer's premises. Section 13, is concerned with deductions of trade union subscriptions or levies. Section 14 regulates trade union representatives in the workplace.

[10] Because all the parties to the dispute did not envisage any disputes of facts, and that the material facts were common cause, they agreed not to lead evidence but to instead deal with the dispute by way of written argument.

[11] The Commissioner made the following findings, which are now the subject of this review application, namely:

11.1 The CCMA has jurisdiction, in terms of section 24 of the LRA, to deal with the interpretation and application of the ERF policy because the ERF policy was not a standalone policy but rather part of their main collective agreement.

11.2 The applicant was inconsistent in granting the organisational rights. The applicant relaxed and/or chose not to adhere to the ERF so that it could accommodate other trade unions.

11.3 If we accept the definition of a “workplace” to mean the applicant’s entire operations, then the Commissioner is not in agreement that the granting of organisational rights to NUMSA at Kusasalethu operation would mean trade union proliferation because the applicant and NUMSA already have a relationship at the workplace. On the grounds that NUMSA and the applicant already have a relationship at the workplace, there is no justifiable reason to deny NUMSA the same rights at Kusasalethu operations because he found that NUMSA has 7% representation.

[12] All the above findings were premised on the Commissioner’s finding that the ERF policy was a collective agreement and that the CCMA accordingly had jurisdiction to interpret and apply it. If the CCMA had no jurisdiction to arbitrate the dispute, then the remaining findings cannot stand and the entire award falls to be reviewed and set aside. A finding that the CCMA had no jurisdiction therefore disposes of the entire application. Because of this, I first deal with the issue of the CCMA’s jurisdiction.

Jurisdiction to interpret collective

[13] Disputes about the interpretation and application of collective agreements are dealt with in section 24 of the LRA.

13.1 Section 24(1) says that “every collective agreement excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26 or a settlement agreement contemplated in either section 142A or158(1)(c), must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration”.

13.2 Section 24(2) says that “if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute in writing to the Commission if-

(a) the collective agreement does not provide for a procedure as required by subsection (1);

(b) the procedure provided for in the collective agreement is not operative; or

(c) any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement.”

[14] Therefore, any dispute about the interpretation or application of collective agreements is to be dealt with under section 24. Section 24 however, only applies to disputes concerning collective agreements, and does not confer the CCMA with jurisdiction to consider other disputes. Both parties are agreed to this, NUMSA states in its answering affidavit that “Naturally, the point of departure for the commissioner would be an enquiry as to whether the CCMA has jurisdiction to interpret the collective agreement in respect of the applicability of the threshold”.

[15] The Commissioner also accepted that he had to determine the CCMA’s jurisdiction by first establishing whether the ERF policy constituted a collective agreement for purposes of section 24.

[16] The Commissioner found that the “ERF was not a standalone policy but it was part of their main collective agreement”. The Commissioner’s finding was repeated by NUMSA in its answering affidavit. This finding is however not based on any evidence and is also contradicted by the remaining allegations in NUMSA’s answering affidavit. In this regard, I mention the following.

[17] Section 213 defines a collective agreement to mean:

‘a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-

(a) one or more employers;

(b) one or more registered employers' organisations; or

(c) one or more employers and one or more registered employers' organisations;’

[18] The ERF policy, on the face of it, refers to itself as policy. The clauses in the ERF policy refer to it as being a policy and the subject or content of all clauses consistently describe it as policy. Furthermore, the ERF policy was not concluded between the applicant and any of its registered trade union, but rather appears to be a document generated by the applicant’s Employee Relations department. Therefore, ex facie the document, the ERF policy is not a collective agreement but a workplace policy.

[19] The ERF policy also does not state that it has to be read together with, or part of, a collective agreement. There is therefore no factual basis for the Commissioner to have found that the ERF policy was part of a collective agreement.

[20] NUMSA argues that the ERF policy is binding as a collective agreement because the applicant consulted on it before its adoption and that the fact that it is not signed does not mean that it is not binding. NUMSA’s arguments are however misplaced.

[21] Whilst it is correct that agreements that are not signed by the parties, or reduced to writing, may in certain circumstances be binding even though the parties failed to sign them, that is an argument that can only apply to agreements. As mentioned above, the ERF policy is the applicant’s policy and not an agreement, therefore the issue of a signature by NUMSA does not arise. Furthermore, nothing in its content suggests that the ERF policy was intended to be a collective agreement.

[22] Since no evidence was led by the parties, not much can be made of NUMSA’s claim that there was wide consultation on the policy. However, even if that was accepted as being correct, such consultations could not translate a clearly worded policy to mean or constitute something else.

[23] Accordingly, the Commissioner’s finding that he had jurisdiction on the basis that the ERF policy was a collective agreement, amounted to a material error of law.

Award is set aside

[24] An arbitration award may be set aside as constituting a gross irregularity when a Commissioner commits an error of law, if such error of law was material. However, before an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome. In this regard, it is worth repeating the Labour Appeal

Court in Head of the Department of Education v Mofokeng and Others[2] where it was explained as follows:

‘[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (“the SCA”) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.

[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependant on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law,

now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (“PAJA”); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.’

[25] As stated above, the Commissioner committed an error of law and misconceived the true enquiry before him by finding that the dispute concerned the interpretation or application of a collective agreement. Flowing from this, the Commissioner made further findings that were all premised on his finding that the ERF policy is a collective agreement.

[26] The Commissioner’s error of law was in the circumstances material and his award is unreasonable or not one that a reasonable decision maker would make. The award therefore falls to be reviewed and set aside.

Conclusion

[27] The applicant prays in its notice of motion for an order that “the arbitration award is substituted with an order dismissing the first respondent’s organisational rights dispute, alternatively, the matter is remitted to the third respondent for determination by a commissioner other than the second respondent”.

[28] Because the Commissioner misconceived the true enquiry before, the dispute that was actually referred for arbitration was not dealt with. Therefore, in my view, the appropriate order is to have the matter remitted to the third respondent for determination by a commissioner other than the Commissioner.

[29] Lastly, there is nothing in the present matter that justifies a departure from the usual approach in this Court that costs are not granted in such applications unless otherwise justified.

[30] In the premises, I make the following order:

Order

1. The arbitration award of the second respondent under case number GAJB26692-18, dated 12 September 2019, is reviewed and set aside.

2. The matter is remitted back to the third respondent for determination by a commissioner other than the second respondent.

3. There is no order as to costs.

T Manchu

Acting Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] [2014] ZALAC 50; (2015) 36 ILJ 2802 (LAC).