National Union of Metalworkers of South Africa obo Members v Reagetswe Trading 125 CC and Others (J835/21) [2021] ZALCJHB 266 (28 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 835/21

In the matter between:

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA obo MEMBERS Applicant

and

REAGETSWE TRADING 125 CC First

Respondent

TRIPLE “M” MINING (PTY) LTD Second

Respondent

NEWRAK MINING (PTY) LTD Third

Respondent

ASSOCIATION OF MINEWORKERS

AND CONSTRUCTION UNION Fourth

Respondent

ELIPSIS BLUE TRADING 43 (PTY) LTD

t/a LPK ISIVUNO Fifth

Respondent

Heard: 29 July 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 28 August 2021 at 18:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] The applicant, the National Union of Metalworkers of South Africa (NUMSA) approached this Court to seek certain interdictory and declaratory relief.[1] In summary, NUMSA seeks to protect its members’ rights under sections 4 and 5 of the Labour Relations Act[2] (LRA). It also seeks an order that its members not be compelled to become members of the fourth respondent, (AMCU), in circumstances

where the latter has a Closed Shop Agreement in place between itself and the first respondent (Reagetswe) in particular.

[2] At these proceedings, and following an agreement, the second respondent (Triple M Mining), third respondent (Newrak Mining); and fifth respondent (LPK Isivungu), resolved their disputes separately with NUMSA. The parties’ draft orders in that regard were made orders of this Court. Before the Court therefore remains the dispute between NUMSA, Reagetswe, and AMCU.

[3] This application is before the Court against the following background;

3.1 Reagetswe, Triple M, Newrak Mining and LPK Isivungu (The Contractors) provide a variety of services to Impala Platinum Holdings Limited (Impala). AMCU has always enjoyed majority representation at Impala and the Contractors, and the parties have concluded various forms of agreements including a Closed Shop Agreement with Reagetswe since December 2014.

3.2 NUMSA has been making attempts at recruiting membership at Impala and the Contractors. During June 2021, its members embarked on industrial action at Impala and the contractors in support of various demands for recognition and organisational rights; working conditions, and allegations of unilateral reduction in wages at some of the contractors.

3.3 Following industrial action, Reagetswe had on or about 8 June 2021, entered into a settlement agreement with NUMSA ending the industrial action. It was further agreed that NUMSA would be granted organisational rights as contemplated in section 12, 13, 15 and 16 of the LRA. These rights were to be granted pending a verification exercise to be facilitated through the Commission for Conciliation Mediation and Arbitration (CCMA). That agreement was made an order of this Court. It is not in dispute that as at the hearing of this application, the verification exercise was nowhere near completion before the CCMA.

3.4 Despite the agreed Court order of 8 June 2021, the industrial action had persisted on 20 June 2021, and as it has become the norm, the action was characterised by violence, intimidation and unrest. The contractors approached this Court and other Courts for urgent relief. Both AMCU and NUMSA, which were all cited as respondents in the urgent applications to interdict the strike action, blame each other for the violence and unrest. The contractors ultimately decided on 20 and 21 June 2021 after ultimatums were not adhered to, to effect a mass dismissal of both AMCU and NUMSA members.

3.5 Following the mass dismissals, several discussions took place between Impala and AMCU separately. NUMSA, Impala, the CCMA and the Department of Employment and Labour (DOEL) also had parallel discussions, which resulted with an agreement that was facilitated by DOEL. That agreement also affected some of the contractors including Reagetswe, and was meant to effectively resolve the industrial action and the return of the dismissed employees.

3.6 The terms and conditions of the resolution of the industrial unrest as captured in a form of ‘Agreed Principles’[3] inter alia provided that;

3.6.1 The dismissed employees, except the members of the Interim Committee would be reinstated with final written warnings valid for 12 months effective from 13 July 2021;

3.6.2 The current recognition agreements would be respected pending a verification exercise;

3.6.3 NUMSA will refer a dispute to the CCMA in terms of section 21 of the LRA to conduct a verification exercise, and

3.6.4 NUMSA made an undertaking that it will not call for any unprotected industrial action at the Contractors without following the provisions of the LRA.

3.8 NUMSA holds the view that the ‘Agreed principles’, represents a collective agreement, which was binding on the parties. It contends that despite the acceptance of the ‘Agree Principles’, its members who had reported for duty on 12 July 2021 at Reagetswe and other contractors were turned away. It alleged that on 13 July 2021, Reagetswe had selectively accepted the services of some employees and informed others of their dismissals. It also alleged that some employees were not only compelled to apply for re-employment, but also informed to sign stop-order forms in favour of AMCU, before they could be allowed to resume their duties.

3.9 It is further not in dispute that upon the employees’ return on 13 July 2021, Reagetswe had required of them to also sign a ‘Pledge’[4] requiring them to;

(i) Abide by the COVID-19 rules and follow safety instructions laid down in the ‘government gazette’;

(ii) Not to engage in any unauthorised meeting and not take part in any illegal strikes/work stoppages, and that,

(iii) Reagetswe reserved its right to terminate the employment contracts where there was a failure to adhere to the above.

3.10 Between 15 July 2021 and 23 July 2021, there were various exchanges of correspondence between NUMSA’s attorneys of record and Webber Wentzel representing Impala, wherein NUMSA had inter alia complained about the non-compliance by the contractors with the ‘Agreed Principles’. NUMSA further made a variety of demands and sought certain undertakings.

3.11 Webber Wentzel in its response had explained the circumstances in regards to the reason the return of the employees was staggered due to observance of Covid-19 and health and safety protocols. It further advised NUMSA of the withdrawal of the re-employment forms that were issued to the returning employees by the Contractors. NUMSA was still however not satisfied with the responses, and had on 23 July 2021, launched the application before the Court.

The arguments and evaluation:

[4] For the purposes of these proceedings, and further to the extent that both Reagetswe and AMCU did not seriously challenge NUMSA’s contentions in regards to urgency, the Court will accept that the matter ought to be dealt with as one of urgency.

[5] NUMSA seeks a final interdict, and the principles in that regard are well-known. Thus, NUMSA must in order to succeed, demonstrate a clear right; an injury committed or reasonably apprehended, and the absence of a satisfactory remedy[5].

[6] Central to NUMSA’s case is that this Court has jurisdiction and powers to grant the relief it seeks in that;

6.1 It seeks a declarator that the ‘Agreed principles’ constitutes a collective agreement;

6.2 that the pledges and re-employment application forms constitutes new employment contract,

6.3 that the conduct of Reagetswe to compel its members to sign AMCU membership or stop order forms, and ballot sheets as a condition for returning to work was invalid, unlawful and of no force and effect, and that all of the above conduct was contrary to the provisions of section 5(4) of the LRA.

6.4 The dispute did not involve an interpretation and/or application of the collective agreement as contemplated under section 24 of the LRA[6], and was only concerned with the enforcement of rights under section 4 and 5 of the LRA;

6.5 The Court’s jurisdiction derives from the provisions of section 157(2) of the LRA[7]; in the alternative, sections 158(1)(j) of the LRA, or the Court’s discretion under section 157(4)(a) of the LRA.

[7] AMCU and Reagetswe opposed the application on various grounds, i.e., that this Court lacks jurisdiction to grant the relief sought by NUMSA in the light of its pleaded case; that in any event, NUMSA has not made out a case in its founding papers, only sought to do so in its heads of argument; and further that it has not satisfied the requirements of final relief.

Jurisdiction:

[8] Whether this Court has jurisdiction to directly enforce any of the terms and obligations arising from the ‘Agreed principles’ as a court of first instance needs examination. This Court derives its jurisdiction from section 157(1) and (2) of the LRA and its powers from section 158 thereof. It has long been stated that the powers and jurisdiction are separate concepts that ought not be confused with each other[8]. Thus, whilst the Court may have jurisdiction and thus the power to grant the appropriate remedy, at the same time, it is appreciated

that this does not imply that the Court will assume jurisdiction as a matter of course and readily grant the remedy sought. [9]

[9] Section 157(2) of the LRA[10] gives this Court jurisdiction in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution[11], arising from employment and labour relations. These rights further find expression in section 23 of the Constitution which provides for the right to fair labour practices, and which are further given effect to and regulated under the LRA. Equally so then, an applicant is not ordinarily entitled to place direct reliance on the Constitution, except to the extent that the constitutionality of the provisions in question is challenged.

[10] From the import of the above legislative framework, it is worth repeating that section 157(1) of the LRA provides that subject to the Constitution and section 173 of the LRA, and except where the LRA provides otherwise, the Court will have exclusive jurisdiction in respect of all matters that elsewhere in terms of the LRA or any other law are to be determined by this Court. This however requires of a party referring a dispute to this Court for adjudication, to specifically point to a provision of the LRA or some other law that confers jurisdiction on this Court to adjudicate the dispute[12].

[11] It is further worth repeating that this Court has consistently observed that it does not have overall jurisdiction to entertain any dispute that concerns a work-related grievance, or deal with any allegations of unfair employer conduct, or somehow to exercise a general supervisory role over the employment relationship[13]. The provisions of section 157(5) of the LRA could not have made it clearer than that since they expressly provides that this court does not have jurisdiction to adjudicate an unresolved dispute where the LRA or any other employment law require the dispute to be resolved through arbitration.

[12] In regards to jurisdiction, Reagetswe’s main contention, with which AMCU aligned itself, is that to the extent that NUMSA had placed reliance on the provisions of sections 4 and 5 of the LRA in alleging a breach of the protections conferred under Chapter II, the provisions of section 9 of the LRA specifically provided for a procedure of resolving such disputes. In this regard, the procedures to have been invoked included a referral of the dispute to the CCMA or relevant bargaining council for conciliation, prior to NUMSA approaching the Court, and that to the extent that these procedures were not followed, this Court lacked jurisdiction, as it was not the Court of first instance.

[13] The issue of whether or not the ‘Agreed principles’ constituted a collective agreement within the meaning of section 213 of the LRA[14] is in my view neither here nor there to the extent that AMCU had disputed that there was a collective agreement in place. This is so in that that all the contractors, including Reabetswe, have accepted that the settlement agreement constituted a collective agreement.

[14] Once it is accepted that a collective agreement is in place, it is trite that any dispute arising from the interpretation or application of that collective agreement, must be resolved through the mechanism provided in section 24 of the LRA[15]. There is no dispute in regards to the existence of a collective agreement in this case notwithstanding what AMCU’s contentions

may be. Once this is so, NUMSA’s contentions that the Court has powers to enforce the terms of the collective agreement under the provisions of section 158(1)(j) of the LRA without resort to the provisions of section 24 of the LRA are unsustainable. The provisions of section 157(1) of the LRA cannot as in this instance, cover what remains clearly an issue surrounding the implementation of the ‘Agreed principles’ and what NUMSA seeks from this Court is effectively to resolve workplace work-related grievances,

allegations of unfair employer conduct in relation to the implementation of the ‘Agreed principles’ and to micromanage how those principles are implemented. That is not the role of this Court.

[15] The central issue to be determined is whether in the application of the ‘Agreed principles’ Reabetswe did so unlawfully or otherwise to the extent that it is alleged that the provisions of section 4 and 5 of the LRA were violated. Any remedy in that regard squarely falls within the dispute resolution mechanism of the LRA within section 9, and it is therefore not for this Court, irrespective of how the dispute is sought to be couched or any constitutional tone attached to it, to assume jurisdiction over that issue as a court of the first instance.

[16] Equally without merit is the contention that even if the provisions of section 9 of the LRA were applicable, this Court should exercise its discretionary powers under section 157(4)(a) of the LRA. No basis has been laid as to the reason why that discretion should be exercised in favour of circumventing the provisions of section 9 of the LRA. The mere fact that this matter was accorded some form of urgency does not imply that NUMSA should be entitled to the relief in question.

[17] In summary, even if NUMSA relies on constitutional issues and rights that it seeks to be protected, the grand scheme of the LRA is such that it provides litigants, in the absence of the constitutionality of those provisions being challenged, an alternative avenue in asserting any of those rights, and therefore, NUMSA cannot be entitled to approach the Court in the first instance. Its remedies as correctly pointed out on behalf of AMCU and Reagetswe, are to be found in the readily available procedures under section 9 of the LRA.

The requirements for final relief:

[18] Even if for some inexplicable reason the Court was inclined to assume jurisdiction, this application and the manner pleaded nonetheless fails to satisfy the requirements for final relief. Even on a liberal interpretation of NUMSA’s pleadings, and to the extent that NUMSA’s contention is that what is sought is merely enforcement of the provisions of the agreement, the immediate question is this; What is it, based on the facts and the events since 12 July 2021, that is expected of this Court to enforce, that is already not enforced by Reabetswe? Even if there was enforcement already, the next issue is what is unlawful or unconstitutional in the manner that Reabetswe has enforced the settlement, that needs the intervention of

this Court?

[19] The issue in relation to the returning employees being required by Reagetswe to re-apply for their positions has been resolved as evident from the undertakings and confirmation by Webber Wentzel’s correspondence to NUMSA’s attorneys of record.

[20] The complaints surrounding the ‘Pledges’ required by Reagetswe to be signed by the returning employees are in my view red herring. It is appreciated that the Contractors and Reagetswe in the light of the consistent industrial action had reached a point where simply reinstating the previously dismissed was not sufficient. The ‘Pledge’ as correctly pointed out on behalf of Reagetswe is nothing unusual or extraordinary. It is no less similar than the normal disciplinary code and procedures employers ordinarily require employees to sign, acknowledge and abide by as and when circumstances change at the workplace. The only proviso is whether there is anything unfair or unconstitutional, that can be said to have materially altered existing contracts of employment.

[21] In respect of the ‘Pledges’, I seriously have difficulties in appreciating what could possibly be unfair, invalid or unconstitutional about them. It is not even necessary to embark into a factual enquiry into whether the employees were compelled to sign the ‘Pledge’ or not, in that on its own ordinary meaning, the ‘Pledge’ by requiring employees that they will abide by Covid-19 and safety protocol, merely state the obvious. The employees had been away from work for some considerable time, and given the nature of the mining environment and the workplace, such protocols in the midst of a Covid-19 pandemic needed to be reinforced and strictly adhered to.

[22] Employers are best placed to determine what the safety requirements or a return to a workplace should be, and I fail to appreciate how it can be expected of this Court to micromanage how employers run or implement their own health and safety measures. The pledge as correctly pointed on behalf of AMCU and Reabetswe, does not in any manner contradict any provision of the agreement, or alter any existing terms and conditions of employment. It is a simple operational issue which logic dictates should be followed by all employees. I fail to appreciate how this requirement can by any standard, be deemed to be in breach of any agreement or be unlawful.

[23] The above approach follows in regard to the requirement that the employees must undertake not to engage in any unauthorised meeting nor take part in any illegal strikes/work stoppages. These undertakings merely required the employees to conduct themselves in accordance with legal requirements when they want to go on strike, instead of simply downing tools at a whim. Again, there is absolutely nothing unconstitutional or unlawful, that prohibits Reagetswe from reserving its rights where employees do not comply and abide by these basic rules of employment, which they should be aware of in any event. NUMSA and its members are aware or ought to be aware that any form of industrial action must be in compliant with the provisions of section 64 of the LRA.

[24] Furthermore, the mere fact that an employer reserves its rights to terminate or take any form of discipline where there are breaches of these basic and legal requirements is perfectly within its prerogative, and there is nothing in that undertaking or reservation of rights that can be read to mean the erosion of the employees’ rights, or that they will be dismissed without any form of due process being followed. Even then, in such an eventuality, NUMSA will still have a right to follow the provisions of the LRA, and in particular, section 191 of the LRA. The mere fact that such a pledge was not mentioned in the

‘Agreed principles’ does not mean that Reagetswe cannot implement anything else outside of those principles, that will ensure that returning employees conducted themselves in a manner ordinarily expected of them.

[25] NUMSA further complains that upon returning to work, its members were compelled to sign membership of AMCU, failing which they would not be permitted to proceed to render their services. It contends that the conduct of requiring members to sign stop order forms in favour of AMCU and/or ballot sheets indicating that they are members of AMCU violated the provisions of sections 4 and 5 of the LRA.

[26] Again, it is not even necessary to dwell into the factual disputes surrounding whether NUMSA members were compelled to join AMCU or not, in that what is at stake is purely a legal issue within the provisions of section 26 of the LRA. It is further not even necessary to deal with the allegations and counter-allegations between NUMSA and AMCU in respect of the instigation, incitement or any unlawful conduct between their members in the light of the undertakings made by AMCU in its attorneys of record’s undertakings dated 25 July 2021.

[27] The issue however remains that AMCU and Reagetswe have in place, a standing Closed Shop agreement. Under the provisions of its clause 7, employees are required to be members of AMCU. To the extent that NUMSA has a variety of concerns with the existing closed shop agreement, various options are available to it under the provisions of sections 26(10) and 26(11) of the LRA. In fact, to the extent that NUMSA has referred a verification exercise to the CCMA in the light of the dispute surrounding its or AMCU’s representativity, I fail to appreciate the need for this Court to intervene in that process, when NUMSA has already utilised its available remedies.

[28] In conclusion, other than the fact that this Court lacks jurisdiction to determine the issues before the Court, in the same token, NUMSA has not satisfied the requirements for final interdict. This is so in that even if the ‘Agreed principles’ created certain rights which have already been implemented, there is no legal basis upon which anything further arising from those principles can compel the intervention of this Court. This is particularly so in that the ‘Pledge’ in particular does not by any stretch of imagination, raise any issues that can remotely be regarded as invalid, unlawful, unconstitutional or extraordinary for the purposes of establishing a clear right to the relief sought. The pledge does not at all erode, harm or threaten the employees’ rights. There is therefore no discernible clear right or any injury committed or reasonably apprehended arising from the alleged conduct of Reagetswe that needs this Court’s intervention. To cap it all, the satisfactory remedy available to NUMSA have been set out in this judgment and nothing further should be added. It follows that this ap[plication should fail.

[29] I have further had regard to the issue of costs to the extent that Reagetswe and AMCU sought such an order. I appreciate that the relations between the parties has become fractured, more specifically between NUMSA and AMCU. Inasmuch as I am of the view that a proper reflection would have done NUMSA some good prior to pursuing a case against AMCU, a costs order upon the requirements of law and fairness would not be appropriate. Equally, to the extent that the other Contractors in this matter who were in a similar position as Reagetswe had decided to amicably resolve their disputes with NUMSA, it cannot be said that the latter’s application as a whole was without merit. Accordingly, I deem it appropriate not to make any award as to costs.

[30] Accordingly, the following order is made;

Order:

1. The time periods set out in the Rules for the Conduct of Proceedings in this Court are dispensed with and the matter is heard as one of urgency.

2. The Applicant’s application is dismissed.

3. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Mr.

R. Daniels, of Cheadle Thompson & Haysom Incorporated

For the First Respondent: Mr. P.M. Mosebo, of Werksmans Attorneys

For the Second Respondent: Adv. M. Wessels, instructed by C.P. Zietman Attorneys

For the Third Respondent: Adv. R. Beaton SC, instructed by E.D Ras Burger & Partners Attorneys

For the Fourth Respondent: Adv. N. Cassim SC, instructed by LDA Incorporated Attorneys

For the Fifth Respondent: Adv. L. Molete, instructed by van Velden - Duffey

[1] See Applicants’ Notice of Motion which reads: “KINDLY TAKE NOTICE that an application will be made [to this Court] … in the following terms: … 2. Interdicting and restraining the first, second and third respondent from coercing or pressurizing the applicant’s members into: 2.1. Signing and/or submitting a re-employment application form or new employment contracts, 2.2. Signing membership forms (or stop order forms) in favour of AMCU or ballot sheets indicating that they are members of AMCU 3. Interdicting the first respondent from coercing or pressurizing the applicant’s members to sign a pledge or undertaking agreeing that their employment may be terminated if they participate in an unprotected strike or work stoppage or unauthorized meetings, 4. Declaring that all the pledges, re-employment application form, new employment contracts, AMCU membership (or stop order) forms and ballot sheets signed since 12 July 2021 by the applicants’ members employed by the first, second and third respondents are unlawful and of no force and effect, 5. Interdicting and restraining [the] first, second and third respondents from suspending or dismissing any of the applicants’ members on account of their refusal to sign a pledge, re-employment application form, new employment contracts, AMCU membership (or stop order) forms or ballot sheets in [favour] of AMCU, 6. … 7. Directing the first, second, third and fifth respondents to reinstate any of the applicant’s members (who are not interim Committee members) and who were dismissed: 7.1. For participating in the strike which commenced on or before 20 June 2021, and/or 7.2. For their refusal to sign a pledge, re-employment application form, new employment contracts, AMCU membership (or stop order) forms, or ballot sheets…”

[1] See Applicants’ Notice of Motion which reads: “KINDLY TAKE NOTICE that an application will be made [to this Court] … in the following terms:

…

2. Interdicting and restraining the first, second and third respondent from coercing or pressurizing the applicant’s members into:

2.1. Signing and/or submitting a re-employment application form or new employment contracts,

2.2. Signing membership forms (or stop order forms) in favour of AMCU or ballot sheets indicating that they are members of AMCU

3. Interdicting the first respondent from coercing or pressurizing the applicant’s members to sign a pledge or undertaking agreeing that their employment may be terminated if they participate in an unprotected strike or work stoppage or unauthorized meetings,

4. Declaring that all the pledges, re-employment application form, new employment contracts, AMCU membership (or stop order) forms and ballot sheets signed since 12 July 2021 by the applicants’ members employed by the first, second and third respondents are unlawful and of no force and effect,

5. Interdicting and restraining [the] first, second and third respondents from suspending or dismissing any of the applicants’ members on account of their refusal to sign a pledge, re-employment application form, new employment contracts, AMCU membership (or stop order) forms or ballot sheets in [favour] of AMCU,

6. …

7. Directing the first, second, third and fifth respondents to reinstate any of the applicant’s members (who are not interim Committee members) and who were dismissed:

7.1. For participating in the strike which commenced on or before 20 June 2021, and/or

7.2. For their refusal to sign a pledge, re-employment application form, new employment contracts, AMCU membership (or stop order) forms, or ballot sheets…”

[2] Act 66 of 1995, as amended

[3] Annexure ‘EM3’ to the Founding Affidavit

[4] Annexure ‘EM14’ to the Founding Affidavit

[5] Setlogelo v Setlogelo 1914 AD 221 at 227; Masstores (Pty) Limited v Pick n Pay Retailers (Pty) Limited (CCT242/15) [2016] ZACC 42; 2017 (1) SA 613 (CC); 2017 (2) BCLR 152 (CC) at para 8

[6] Section 24 of the LRA provides; “Disputes about collective agreements (1) 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 or 158(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. (2) 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. (3) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (4) The Commission must attempt to resolve the dispute through conciliation. (5) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration (6) … (7) … (8) If there is a dispute about the interpretation or application of a settlement agreement contemplated in either section 142A or 158(1)(c), a party may refer the dispute to a council or the Commission and subsections (3) to (5), with the necessary changes, shall apply to the dispute”

[6] Section 24 of the LRA provides; “Disputes about collective agreements

(1) 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 or 158(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.

(2) 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.

(3) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(4) The Commission must attempt to resolve the dispute through conciliation.

(5) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration

(6) …

(7) …

(8) If there is a dispute about the interpretation or application of a settlement agreement contemplated in either section 142A or 158(1)(c), a party may refer the dispute to a council or the Commission and subsections (3) to (5), with the necessary changes, shall apply to the dispute”

[7] Which provides: (2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from- (a) employment and from labour relations; (b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and (c) the application of any law for the administration of which the Minister is responsible.

[7] Which provides:

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from-

(a) employment and from labour relations;

(b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and

(c) the application of any law for the administration of which the Minister is responsible.

[8]See Moropane v Gilbeys Distillers and Vintners (Pty) Ltd and Another 1998 19 ILJ 635 (LC) at 638 E-F; Natal Sharks Board v SA Commercial Catering and Allied Workers Union and Others (1997) 18 ILJ 1324 (LC)

[9] See PSA obo Members v Minister of Health and Others (J3106/18) [2018] ZALCJHB 345; [2019] 1 BLLR 71 (LC); (2019) 40 ILJ 193 (LC) at para 12

[10] Which provides: (2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from- (a) employment and from labour relations; (b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and (c) the application of any law for the administration of which the Minister is responsible.

[10] Which provides:

[11] The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)

[12] Chirwa v Transnet Ltd [2007] ZACC 23; 2008 (4) SA 367 (CC) at par 155, Gcaba v Minister of Safety and Security (2010) 1 SA 238 (CC) para 75)’ Shezi v SAPS and Others 2021) 42 ILJ 184 (LC) at para 10; Tshepo v South African Police Service and Others (J 656/21) [2021] ZALCJHB 155 (25 June 2021) at paras 19 - 20

[13] PSA obo Members v Minister of Health and Others (J3106/18) [2018] ZALCJHB 345; [2019] 1 BLLR 71 (LC); (2019) 40 ILJ 193 (LC) at para 10

[14] Section 213 provides: “collective agreement” means 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;

[14] Section 213 provides:

“collective agreement” means 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;

[15] Section 24 of the LRA provides; “Disputes about collective agreements (9) 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 or 158 (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. (10) 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- (d) the collective agreement does not provide for a procedure as required by subsection (1); (e) the procedure provided for in the collective agreement is not operative; or (f) any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement. (11) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (12) The Commission must attempt to resolve the dispute through conciliation. (13) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration (14) … (15) … (16) If there is a dispute about the interpretation or application of a settlement agreement contemplated in either section 142A or 158(1)(c), a party may refer the dispute to a council or the Commission and subsections (3) to (5), with the necessary changes, shall apply to the dispute”

[15] Section 24 of the LRA provides; “Disputes about collective agreements

(9) 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 or 158 (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.

(10) 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-

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

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

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

(11) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(12) The Commission must attempt to resolve the dispute through conciliation.

(13) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration

(14) …

(15) …

(16) If there is a dispute about the interpretation or application of a settlement agreement contemplated in either section 142A or 158(1)(c), a party may refer the dispute to a council or the Commission and subsections (3) to (5), with the necessary changes, shall apply to the dispute”