National Union of Metal Workers of South Africa v Tshwane University of Technology (J617/2020) [2020] ZALCJHB 216; [2020] 11 BLLR 1141 (LC); (2020) 41 ILJ 2686 (LC) (20 July 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable Case no: J 617/2020

NATIONAL UNION OF METAL WORKERS OF

SOUTH AFRICA

Applicant

And

TSHWANE UNIVERSITY OF TECHNOLOGY

Respondent

Enrolled: 14 July 2020

Delivered: 20 July 2020

Summary: Application to reinstate organisational rights where the Constitutional Court found that NUMSA cannot have members outside its constitution.

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 20 July 2020.

JUDGMENT

PRINSLOO, J

Introduction

[1] This application was filed on 2 July 2020 and is opposed by the Respondent. It was enrolled for hearing on 14 July 2020 and in accordance with the provisions of the „Urgent directive in

respect of access to the Labour Court‟ dated 28 April 2020, which is applicable with effect from 4 May 2020 until the end of the July 2020 recess, the parties agreed that this matter be disposed of without oral argument. I have considered the papers filed as well as the written heads of argument submitted by the parties.

Urgency

[2] The Applicant approached this Court on an urgent basis for relief

which I will fully deal with infra.

[3] The Respondent took issue with urgency. I have considered the facts

and arguments placed before this Court in support of and in opposition of urgency and the Respondent‟s arguments against

urgency are not entirely without merit. However, I am inclined to exercise my discretion to deal with this matter.

Material facts

[4] The sequence of events is relevant to the merits of this application and it provides context thereto. In July 2018, the Respondent granted the Applicant organisational rights in terms of the provisions of the Labour Relations Act[1] (LRA) and in April 2019 the parties concluded a recognition agreement (the agreement). In terms of the agreement the Respondent recognised the Applicant‟s organisational rights as provided for in sections 12 and 13 of the LRA. The Applicant and its members enjoyed the organisational rights granted to them until 5 May 2020, when the Respondent terminated the recognition agreement.

[5] The reason for the termination of the recognition agreement was set

out in a letter to the Applicant wherein the Respondent recorded that Chapter 2(2) of the Applicant‟s constitution provides that “all workers who are or were working in the metal and related industries are eligible for membership of the Union, subject to the discretion of the relevant shop stewards council” and that Annexure B of the same constitution provides for the scope of the trade union and that it should be open to workers employed in specific industries. The industries listed included the iron, steel, engineering and metallurgical industry, the electrical engineering industry, plastics industry, automobile manufacturing and motor industry. The list does not include the tertiary education industry, within which the Respondent operates.

[6] The Respondent further stated that the Applicant went outside of its registered scope, being the metal and related industries, as provided for in its constitution when it admitted employees in the educational sector for membership, in circumstances where the Applicant‟s constitution does not provide for their eligibility as members.

[7] The Respondent informed the Applicant that it does not have the right

to organise within the education sector and was not entitled to organise or exercise the rights that it had in terms of the recognition agreement. The Applicant is not permitted in terms of the LRA to allow workers to join as members where such workers are not eligible for admission in terms of the union‟s own constitution.

[8] The Respondent notified the Applicant that the recognition agreement was to be terminated. It is common cause that the termination of the agreement was triggered by the Constitutional Court‟s judgment in NUMSA v Lufil Packaging (Isithebe) and Others[2] (Lufil) which was handed down on 26 March 2020.

[9] In Lufil[3] the Constitutional Court upheld the Labour Appeal Court‟s (LAC) decision that a trade union cannot create a class of membership

outside the provisions of its own constitution. The Constitutional Court held that:

„[47] The contractual purpose of a union‟s constitution and its impact on the right to freedom of association of its current members is founded in its constitution. A voluntary association, such as NUMSA, is bound by its own constitution. It has no powers beyond the four corners of that document. Having elected to define the eligibility for membership in its scope, it manifestly limited its eligibility for membership. When it comes to organisational rights, NUMSA is bound to the categories of membership set out in its scope.

[48] NUMSA‟s definition of its scope is binding upon it. It follows that it could amend its scope of membership, without limitation, provided it follows its prescribed amendment procedures.

[49] The clauses at issue are clear, unambiguous and do not undermine the purpose of the document. NUMSA argues rather faintly that the word only does not appear in clause 2(b) of its constitution, therefore, it should be interpreted to mean that any industry can be admitted. To understand this argument, it is necessary to quote the clause again. The suggestion is that to restrict membership the word only should precede the words:

“workers who are or were working in the metal and related industries are eligible for membership of [NUMSA].”

[50] However, the nub of the issue lies in the remaining clauses which point out very directly that eligibility for membership is limited to those categories in Annexure B. This contention, regarding the word only, lacks logical and legal persuasion in the context of its constitution which defines so clearly eligibility for membership.

[51] It is for this reason that the LRA sets limitations on the exercise by unions of their organisational rights by requiring unions seeking those rights, to be sufficiently representative of the employees in that particular workplace.‟

[10] The Constitutional Court further held that:

„[52] …Lufil is in the paper and packaging industry which is not included in Annexure B of NUMSA‟s constitution as part of its scope. It follows that NUMSA is not eligible to demand organisational rights. Lufil‟s core challenge did not attack NUMSA‟s suitability to represent its employees but focused its argument on its constitution which does not extend to the paper and packaging industry.‟

[11] The Respondent‟s position is that in view of the Lufil decision and as it operates in the education sector, which is a sector outside the terms and scope of the Applicant‟s constitution, any membership of the Respondent‟s employees with the Applicant, is by virtue of the aforesaid decision ultra vires and invalid. Similarly, the recognition agreement entered into between the Applicant and the Respondent is invalid as there is no

lawful membership between the employees of the Respondent and the Applicant. As a matter of law, the Applicant is precluded from

engaging with the Respondent in terms of the recognition agreement.

[12] The Respondent submitted that the recognition agreement was not retracted in terms of the terms of the agreement, but was retracted as a consequence of it being void and because in accordance with Lufil, the Respondent was precluded from upholding the recognition agreement.

[13] It is evident from Lufil that the only way in which the Applicant could remedy the situation, was to amend its constitution.

Relief sought

[14] The relief sought by the Applicant is divided into “Part A” and “Part B”. The relief sought in Part A is sought on an urgent basis and pending the determination of Part B of the application. In part B the Applicant seeks an order inter alia to review and set aside the decision to terminate the Applicant‟s organisational rights and the recognition agreement as being

unlawful, unconstitutional and invalid. This judgment will determine whether the Applicant is entitled to the relief sought in Part A.

[15] Pending the determination of Part B, the Applicant seeks the following relief:

15.1. That the Applicant‟s members employed by the Respondent are permitted to continue to enjoy organisational rights granted to the Applicant in July 2018 and as per the recognition agreement dated 11 April 2019;

15.2 That the Respondent be ordered to reinstate the Applicant‟s granted organisational rights and the recognition agreement dated 11 April 2019.

Analysis

[16] The Applicant submitted that as it seeks interim relief, it has to show a prima facie right to the relief it seeks. In support of its prima facie right, the Applicant submitted that it has the right to administrative action that is reasonable, lawful and procedurally fair under section 33 of the Constitution of South Africa (the Constitution), as given effect to by the Promotion of Administrative Justice Act[4] (PAJA).

[17] The Respondent took issue with the jurisdiction of this Court to grant the relief on the basis sought by the Applicant.

[18] The Labour Court derives its jurisdiction from section 157(1) and (2) of the LRA and its powers from section 158.

[19] In Natal Sharks Board v SA Commercial Catering and Allied Workers Union[5] the Court held that powers and jurisdiction are separate concepts that should not be confused. Because the court has power does not mean that it has jurisdiction. This proposition is sometimes overlooked.

[20] The question is whether there is merit in the Respondent‟s attack on the jurisdiction of this Court, considering the Applicant‟s case. In my view, there is no merit in the argument that this Court does not have jurisdiction to determine this application. The Court has jurisdiction; the question is rather whether the Applicant has merit.

[21] The Applicant specifically invoked the provisions of section 33 of the Constitution and the provisions of PAJA for the relief that it seeks. Its case is that the Respondent is an organ of State and its retraction of the agreement constitutes administrative action, which invites the application of PAJA.

In my view, there is no merit in this application for two reasons, I will fully deal with infra. First, the Applicant‟s reliance on section 157(2)(a) and (b) of the LRA and second, the Applicant‟s reliance on the provisions of section 33 of the Constitution and the provisions of PAJA for the relief that it seeks. In short: for the Applicant to seek relief based on the direct application of section 33 of the Constitution is not an option open to it.

Section 157 (2) of the LRA

[22] In addressing the issue of jurisdiction, the Applicant stated that this Court has jurisdiction to hear this application in terms of section 157(2)(a) and (b) of the LRA as these sections give this Court jurisdiction to hear matters in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution, and arising from employment or from any dispute over the constitutionality of any executive or administrative act or conduct, by the State in its capacity as an employer.

[23] According to the Applicant, this application involves the violation of the fundamental right enshrined in section 33 of the Constitution by an organ of state as the employer.

[24] The Respondent‟s case is that the issue in casu concerns organisational rights and the recognition agreement, which are governed by the LRA and as such PAJA does not find application.

[25] In Chirwa v Transnet Limited and Others[6] the Constitutional Court confirmed that labour issues are to be dealt with in the specialised fora and pursued through the purpose-built mechanisms established by the LRA. The purpose of the LRA is to create a system under which all labour disputes can be resolved. This is also implied by the provisions of section 210 of the LRA, as well as in the purposes of the Commission for Conciliation, Mediation and Arbitration (CCMA), and the concomitant specialist labour tribunals.

[26] In Gcaba v Minister for Safety and Security and Others[7] The Constitutional Court further held that:

„However, another principle or policy consideration is that the Constitution recognises the need for specificity and specialisation in a modern and complex society under the rule of law. Therefore, a wide range of rights and the respective areas of law in which they apply are explicitly recognised in the Constitution. Different kinds of relationships between citizens and the state and citizens amongst each other are dealt with in different provisions. The legislature is sometimes specifically mandated to create detailed legislation for a particular area, like equality, just administrative action (PAJA) and labour relations (LRA). Once a set of carefully-crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system.‟

[27] In Kapari v Office of the Chief Justice and Others[8] it was held that:

„[10] The principle of subsidiarity requires that where legislation is enacted to give effect to a constitutional right, reliance must be placed, in the first place at least, on the provisions of the specific legislation (see Baron and others v Claytile (Pty) Ltd & another 2017 (5) SA 329 (CC)). In Safcor Freight (Pty) Ltd t/a Safcor Panalpina v SA Freight and Dock Workers [2012] 12 BLLR 1267 (LAC), Murphy AJA said the following, at paragraph 18 of the judgment:

„In my view, the Labour Court erred in declaring the award of increased remuneration inconsistent with section 9 (equality) and section 23 (fair labour practices) of the Constitution. Where legislation has been enacted to give effect to a constitutional right, a party may not bypass that legislation and rely directly on … the general provisions of constitutional right to fair labour [practices in section 23 or the equality clause in section 9 of the Constitution.‟

[11] This is a principle recognized and applied by the Constitutional Court in Minister of Health v New Clicks SA (Pty) Ltd and others (Treatment Action Campaign as amicus curiae 2006 (2) SA 311 (CC) and SA National Defence Union v Minister of Defence & others [2007] 9 BLLR 785 (CC) at paragraphs 50-51; see also NAPTOSA and others v Minister of Education, Western Cape, and others 2001 (2) SA 112 (C).‟

[28] Organisational rights are specifically provided for in the LRA, so too is provision made for disputes about organisational rights. The Applicant‟s remedy lies in the provisions of the LRA and applying the principles of subsidiarity, I cannot but find that the Applicant must rely on the provisions of the LRA and not the Constitution or PAJA.

PAJA: Is the retraction of the recognition agreement administrative action?

[29] There is another reason why the Applicant is not entitled to the relief it seeks, and this relates to the question whether the retraction of a recognition agreement constitutes administrative action.

[30] In Gcaba[9] the Constitutional Court in considering the question whether the conduct complained of, was administrative action has held that:

„Generally, employment and labour relationship issues do not amount to administrative action within the meaning of PAJA. This is recognised by the Constitution. Section 23 regulates the employment relationship between employer and employee and guarantees the right to fair labour practices. The ordinary thrust of section 33 is to deal with the relationship between the state as bureaucracy and citizens and guarantees the right to lawful, reasonable and procedurally fair administrative action. Section 33 does not regulate the relationship between the state as employer and its workers. When a grievance is raised by an employee relating to the conduct of the state as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action.‟

[31] The Constitutional Court made it clear that section 33 of the Constitution does not regulate the relationship between the State as employer and its employees as any conduct relating to the employment relationship has very few if no direct consequences for other citizens.

The question whether the Respondent is an organ of state or not, is of no moment having regard to Chirwa[10] where the Constitutional Court found that the decision to dismiss Ms Chirwa did not amount to administrative action. It was further held that whether an employer is regarded as “public” or “private” cannot determine whether its conduct is an administrative action or an unfair labour practice.

[32] The Respondent disputed that it was taking administrative action as an organ of State subject to PAJA when it withdrew the Applicant‟s organisational rights. The agreement was retracted as a consequence of it being void and because in accordance with Lufil, the Respondent was precluded from upholding the recognition agreement.

[33] It is not disputed that the Respondent operates in the education sector, which is not included in Annexure B of NUMSA‟s constitution as part of its scope. In Lufil, it was held that in those circumstances, NUMSA was not eligible to demand organisational rights.

[34] In my view, the matter does not involve the constitutionality of administrative action as organisational rights are limited to rights between a trade union and an employer. This matter does not fall within the purview of PAJA because no administrative action was taken by an organ of State, but the Respondent simply responded to the Lufil judgment to the extent that a trade union may not admit members when it is precluded to do so in terms of its own constitution.

[35] It follows that if the Applicant is by law not entitled to demand organisational rights, it is not entitled to an order reinstating such rights and a recognition agreement wherein those rights were afforded. The retraction of a recognition agreement under those circumstances does not constitute administrative action and this matter does not fall within the purview of PAJA.

Absent the operation of PAJA, this dispute concerns the recognition agreement and it has to be resolved in terms of the statutory dispute resolution processes provided for in the LRA.

[36] For these reasons the Applicant is not entitled to relief as it cannot rely directly on the Constitution, nor is the termination of a recognition agreement administrative action. In absence of a prima facie right, I need not consider the remaining requirements for interim relief. It follows that this application has to fail.

Costs

[37] The last issue to be decided is that of costs.

[38] Insofar as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness.

[39] In Zungu v Premier of Kwa Zulu-Natal and Others[11] the Constitutional Court confirmed that the rule of practice that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[40] The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation.

[41] In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[12] it was emphasized that:„…unless there are sound reasons which dictate a different approach, it is fair that the successful

party be awarded its costs. The successful party has been compelled to engage in litigation and incur legal costs. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court, whether as applicant in launching proceedings or as respondent opposing proceedings.‟

[42] This is a case where the Court has to strike a balance.

[43] In casu, both parties sought a cost order against the other.

[44] In my view, this is a matter where a cost order would be appropriate. This application was drafted without any consideration of the applicable principles, the relevant authorities or the Applicant‟s prospects of success.

[45] An appropriate award of costs is a method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court. This Court is ordinarily reluctant to make orders for costs against trade unions or employers where there is an ongoing collective relationship between the parties that is worthy of protection. In casu, there is no such relationship and it is not a factor that militates against the granting of a cost order.

[46] I cannot ignore the fact that the Applicant approached this Court on an urgent basis with a meritless application. Fairness dictates that the Respondent cannot be expected to endure the costs of defending litigation on an urgent basis that ought not to have been instituted in the first place.

[47] In the premises, I make the following order: Order:

1. The application is dismissed;

2. The Applicant is ordered to pay the Respondent‟s costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Representatives:

For the Applicant: Advocate S S Tebeila

Instructed by:

Mampa and Machethe

Attorneys For the Respondent: Zarina Walele Attorneys

[1] Act 66 of 1995, as amended.

[2] 2020 (6) BCLR 725 (CC); [2020] 7 BLLR 645 (CC) (26 March 2020).

[3] Ibid.

[4] Act 3 of 2000.

[5] 1997 18 ILJ 1324 (LC).

[6] [2007] ZACC 23; 2008 (4) SA 367 (CC)

[7] (2009) 30 ILJ 2623 (CC) at para 56.

[8] Unreported judgment handed down on 29 June 2020 under case number J 539/2020.

[9] Supra n 7 at para 64.

[10] Supra n 6.

[11] (2018) 39 ILJ 523 (CC) at para 24.

[12] (2012) 33 ILJ 2117 (LC) at para p 2119 I-J.