National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR 2596/2018) [2021] ZALCJHB 29; [2021] 7 BLLR 701 (LC); (2021) 42 ILJ 2276 (LC) (4 March 2021)

The Labour Court of South Africa

(Held at Johannesburg)

Of Interest to Other Judges

CASE NO: JR 2596/2018

In the matter between:

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA

Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION & ARBITRATION First Respondent

COMMISSISONER R DIBDEN N.O. Second Respondent

SCRIBANTE (PTY) LTD Third Respondent

MINERALS COUNCIL OF SOUTH AFRICA Fourth Respondent

BARGAINING COUNCIL FOR THE CIVIL

ENGINEERING INDUSTRY

Fifth Respondent

Application heard: 02 March 2021.

Judgment delivered: 04 March 2021. Judgment delivered electronically, by email, sent to the parties’ representatives.

JUDGMENT

VAN NIEKERK J

Introduction

[1] In the recent case of National Union of Metalworkers of SA v Commission for Conciliation, Mediation and Arbitration & others (2020) 41 ILJ 1629 (LAC), Sutherland JA said the following:

[12] The notion that, for the practical purposes of regulating employment conditions in economic activities, by assigning some enterprises to one or other bargaining council, proceeds from the foundational idea that ‘grouping’ like with more or less like is a sensible pragmatic approach. Central thereto is the attempt, by the use of words, to describe the supposedly distinguishable economic activities in definitions which are almost always complex, wordy and often hairsplitting. The task aims at describing the characteristics or attributes of industrial activities. Then the characteristics or attributes of a business enterprise are described and the two are compared. Just as it is not objectively possible to determine when night ends on day begins, and a practical answer depends on what you want to pinpoint that moment for, so it is with demarcation of so-called distinct ‘industries’.

[2] This case concerns the industrial activities of civil engineering and mining and a comparison of their characteristics with the registered scope of the bargaining council for the civil engineering industry. The applicant contends that its members employed by the third respondent are engaged in the mining industry; the third respondent contends that they are engaged in the civil engineering industry. The ‘use of words’ to distinguish the two industries is represented by the defined scope of the civil engineering industry. The relevant paragraphs read as follows:

1.1 The Civil Engineering Industry means the industry in which employers (other than local authorities) and employees that are associated for the purposes of carrying out work of a civil engineering character normally associated with the civil engineering industry and includes work in connection with any one or more of the following activities:

…

1.1.2 Excavation and bulk earthworks; bush clearing and de-stumping; topsoil stripping; drilling and blasting; preparation of pension areas, drilling pre-split holes and blast holes lasting and/or cast blasting; secondary blasting; loading; hauling and dumping of mineralised and/or waste material to waste dumps or processing plant feed(ROM Pad) stockpiles; production dosing of topsoil, inter-burden or waste material; pumping and dewatering of storm and/or contaminated water, construction and maintenance of; access and hall roads, ramps; waste and processing plant feed (ROM Pad) areas; safety beams; high wall; benches; storm water systems; catch drains, bund walls, sage dams, trimming, scaling or chain dragging of patters, heap – leach pads, tailings dams, dust suppression of loading areas, haul roads and dumping areas; rehabilitation of work areas or waste dumps; topsoil spreading, hydro-seeding and watering;

Excluding the following:

(d) The Mining Industry which is defined as an industry where employers and employees are associated for the purpose, directly or indirectly, for the winning, extracting, processing and refining of the material in, on or under the water from any residue stockpile or all residue deposit.

[3] The second respondent (the arbitrator) was called on to apply these provisions and make the demarcation. The central question that he was required to decide was whether the third respondent’s undertaking at the site in question (referred to as South 32) fell within the exclusion contained in paragraph (d), i.e. within the mining industry. On 17 September 2018, the arbitrator issued an award in favour of the third respondent. He held that the third respondent’s business at South 32 fell within the scope of the bargaining council for the civil engineering industry. In these proceedings, the applicant seeks to review and set aside that award.

The award

[4] The award under review records the background to the dispute. The third respondent as a civil engineering company, which carries out civil engineering activities countrywide. It is a member of the bargaining council; whose registered scope includes all of the activities that the third respondent undertakes. The third respondent’s business is civil engineering, including bulk earthmoving, utilising a number of mechanical means, and includes the building and construction of dams, roads, airports and other civil infrastructures.

[5] South 32 is a mining company engaged in Mpumalanga, mining coal on a number of opencast sites as well as in underground operations. The present proceedings concern the Wolwekrans Colliery. South 32 is the owner and holder of the mining licence and on all other sites, conducts the full spectrum of the mining operation, from topsoil stripping, drill and blast operations, and overburden removal and coal seam exposure and the fragmentation of the coal seams through drill and blast operations. The operation includes the loading and hauling of fragmented coal to various stockpiles and the final beneficiation of the coal through crushes and a wash plot, all undertaken by South 32. South 32 is also responsible for generating the relevant mind plans, crushing and washing the mineralised material, quality control, and sales. Further, South 32 is responsible for the environmental management and rehabilitation of the mining area.

[6] At South 32, the third respondent provided a contracted service on five sites. It was not in dispute that the third respondent was involved in loading and hauling, topsoil, pre-stripped material, overburden material and fragmented mineralised material (coal) from the opencast pit to designated stockpiles using a number of mechanical means, including front-end loaders, excavators, dozers and trucks to load all material. It was also not in dispute that on request by South 32, the third respondent loaded and hauled coal from areas previously mined by South 32 to the stockpiles.

[7] At the arbitration hearing, the applicant’s witness Mathebula stated that employees were involved in the excavating, hauling and loading operations in respect of topsoil and overburden removal, but also loaded and hauled coal to the relevant stockpiles. It was thus contended that the essence of the third respondent’s activities were associated with mining. The arbitrator goes on to record that the essence of the applicant’s submissions was that the third

respondent performed work on a coal mine (being the removal of coal from the pit and pillar areas and haulage to the stockpiles), an activity that was normally associated with mining. It was submitted by the applicant’s representative that as the employees moved coal from the pit and pillar areas and hauled the coal to the stockpiles, the activities they performed were not of a civil

engineering nature or character and that they were engaged in the mining industry. The third respondent’s submissions were to the effect that the work undertaken by its employees on South 32 fell within the scope of the bargaining council.

[8] In his analysis of the evidence, the arbitrator noted that he was required to give consideration to the actual nature of the employer’s business, rather than the terminology employed by the parties to describe job functions and activities. He recorded further the relevant principles to be applied to determine whether or not an employer and its employees fell within a particular sector for the purposes of demarcation. Turning next to the relevant scope of registration, the arbitrator observed that the bargaining council’s scope was subject to an exclusion in respect of the mining industry

contained in paragraph (d).

[9] The arbitrator found that there was no credible evidence that the third respondent and its employees were associated for the purpose referred to in the exclusion. On the other hand, South 32 operations, ‘most definitely fell within the exclusion, as its primary purpose was to liberate the coal and process/refine it to a sellable product. South 32 had the mining licence and own the mine and was responsible for all environmental and rehabilitation in terms of mining regulation. South 32 would also been have bound by the mining charter.’

[10] The arbitrator found that the evidence supported the third respondent’s submission to the effect that the sole purpose of the third respondent and its employees associating was to perform the function set out in the contract with and to receive remuneration for the volume of bulk material moved from one point (being the pit or mining area) to designated stockpiles. There was no evidence that the third respondent was responsible for the beneficiation of the mineralised material through to processing and refinement. The mere fact that activities undertaken by the third respondent were physically carried out on a mine did not mean that the nature of the third respondent’s business would automatically change simply because of the geographical location where these activities were carried out, or because they were carried out on a mine. Such an interpretation would create an absurdity and defeat the objective of the definition of mining industry in the exclusion.

[11] Finally, to the extent that the applicant’s representative during the arbitration hearing sought an order to the effect that its members employed by the third respondent ought to ‘fall under the COM’ (Chamber of Mines, being the fourth respondent and an employers’ organisation in the mining industry) the arbitrator observed that there was no bargaining council established for the mining industry. To the extent that the applicant sought to have its members fall outside of the provisions of the bargaining council’s main agreement on account of a perception that the main agreement for the mining industry made provision for higher salaries, this was a misconception. Indeed, to exclude the third respondent’s employees at South 32 from the provisions of the bargaining council’s main agreement would be to deprive them of the fruits of collective bargaining and the degree of regulation on wages in terms and conditions of employment. For all

of these reasons, the arbitrator came to the conclusion that the third respondent was not engaged in the mining industry and that its operations at Wolwekrans remained regulated by the main agreement concluded by the bargaining council.

Grounds for review

[12] The applicant’s grounds for review are that the arbitrator misconstrued the evidence and submissions presented by the applicant, and thus committed a gross irregularity; that he ignored relevant evidence and arrived at a decision that is objectively wrong. In particular, the applicant contends that the evidence of its witness Mathebula was ignored, and ought to have been accepted in the absence of any cross-examination. That evidence was that on the four sites concerned, the third respondent’s employees were involved in the extraction of coal on a routine basis, with the exception of the Klipfontein site, where extraction occurred on an ad hoc basis. The applicant submits that the evidence of the third respondent’s witness Scheepers was to the effect that the third respondent was contracted to perform mining services, and that the services were carried out with the sole purpose of winning and extracting coal, a purpose that fell within the definition of the mining industry as contained in the definition of that industry in the exclusion from the bargaining council’s scope. These activities were carried out in accordance with the mining plan, not in terms of a construction plan and South 32 and the third respondent collaborated to prepare the plan and a mining schedule. The arbitrator’s finding that the third respondent was contracted only to move bulk material from one point on the mine to a designated stockpile is not supported by the evidence.

[13] Further, the applicant contends that the arbitrator misconstrued the evidence when he found that the mere fact that the activities are physically carried out in a mine does not mean that the nature of the third respondent’s business should not automatically be regarded as mining. The applicant’s case had always been that the third respondent and its employees were associated directly or indirectly for the purpose of mining and therefore fell within the exclusionary clause (d) of the definition of the civil engineering industry. Insofar as the arbitrator placed reliance on the third respondent’s witness White, who testified to the historical practice that prevailed at the time that the bargaining council was established, White had conceded under cross-examination that he was not familiar with the definition of the civil engineering industry or the exclusionary clause, that he had never worked for the third respondent and was not aware of the business it conducted. This evidence was thus irrelevant. In so far as the arbitrator had been directed to the Andru Mining award, the arbitrator in that matter had concluded that the contractor was engaged in the mining industry and the arbitrator’s attempt to distinguish the award from the facts of the present case constituted a reviewable irregularity. On the totality of the evidence before the arbitrator, the applicant submits that the third respondent was contracted to move bulk, expose coal, load and haul it and that the third respondent’s activities could not be disassociated from the extraction of minerals.

[14] The applicant submits that no reasonable decision-maker could have arrived at the finding the arbitrator did when it was common cause that at four of the five sites, the third respondent was engaged in several activities directly related to mining, as defined in paragraph (6). On the evidence, the purpose of engaging the services of the third respondent was to extract coal, loaded and haul it to a stockpile, activities specific to the mining industry. Further, the applicant contends that the arbitrator committed a material error of law which materially impacted on the outcome in that he was required to consider whether the extraction of coal was an ancillary or distinct activity. If distinct, a separate demarcation was required; if ancillary, the arbitrator was required to consider whether the activity was significant.

Analysis

[15] The first issue to be determined is the test to be applied in the present proceedings. In terms of section 62 (1 of the LRA, the CCMA is given exclusive jurisdiction to determine whether any employee, employer, class of employees or class of employers is or was employed in a sector or area. It is now well-established that a demarcation decision is one ordinarily involving facts, law and policy considerations and that in demarcation proceedings, they will, more often than not, be no one absolutely correct judgement. Of necessity, there must be a wide range of approaches and outcomes and to deference should therefore be given to the role, functions and resultant decisions of the CCMA not achieving the objectives of the act (see Coin Security (Pty) Ltd v CCMA and others [2005] 7 BLLR 672 (LC)). When the ground for review is an incorrect interpretation of the law by the commissioner, constitutes a material error of law which will result in both an incorrect and unreasonable award. In this instance, the award can either be attacked on the basis of its correctness and/or its reasonableness (see SBV Services (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and others [2018] 8 BLLR 778 (LAC)).

[16] The third and fifth respondents submit that while the correctness (as opposed to the reasonableness) of an award as a threshold for review might find traction in a situation where the interpretation of words or phrases in a certificate of registration or similar instruments is at issue, the judgment in SPV did not determine that findings on factual matters or policy considerations on which there is not a single correct or incorrect answer (and on which deference is to be accorded to the CCMA) are reviewable based on the correctness threshold.

[17] In the present instance, as appears from the grounds for review, the applicant contends first, that the arbitrator committed a material error of law and that his decision was thus incorrect; secondly, to the extent that he committed material and reviewable irregularities in his assessment of the evidence, the applicant submits that the outcome of the proceedings under review (in the form of the arbitrator’s award) falls outside of a band of decisions to which reasonable decision-makers could come on the available evidence. In the circumstances, I intend to deal with the matter on the basis that the applicant seeks to attack the award both on the basis of its correctness (in so far as the applicant contends that the arbitrator committed an error of law that materially affected the outcome) and its reasonableness (insofar as the applicant contends that the arbitrator failed properly to assess the evidence before him and thus reached a decision that fails to meet the reasonableness

threshold).

[18] As I have indicated, the central question that the arbitrator was called on to determine was whether the third respondent’s undertaking at South 32 fell within the scope of paragraph 1.2.2, or within the exclusion in paragraph (d). It should also be recalled that the case sought to be made by the applicant at the arbitration hearing was that the third respondent’s activities at Wolwekrans Mine was not, in any way, work of a civil engineering character or work ancillary to such work. The case was that clause 2.1 specifically excludes from the scope of the bargaining council’s registration work that falls within the scope of the mining industry as defined in paragraph (6) and that the third respondent undertook such work.

[19] It is not in dispute that the arbitrator was required first to interpret the scope of the definition of the civil engineering industry and the circumstances under which the exclusion contained in paragraph (d) applied. The definition is complex. Clause 1.1.2 deals specifically with activities that are defined as civil engineering activities. There was no disagreement, as the arbitrator records in his award, that the third respondent ‘was involved in loading and hauling, topsoil, pre-strip material, overburden material and fragmented mineralised material (coal) from the opencast pit to the designated stockpiles including the run on mine (ROM)’.

[20] But the inclusion in the definition of the hauling and dumping of mineralised and/or waste material to waste dumps or processing plant feeds (described as a ROM pad or ‘run of mine pad’), as well as the reference to the pumping and dewatering of contaminated water and the construction and maintenance of waste and ROM Pad areas, all of which are activities that occur only on mines, suggests that more is required before these activities are classed not as civil engineering activities, but as mining. Put another way, the fact that civil engineering activities (as per the defined scope) are carried out in a mine, does not necessarily mean that the activities collapse into the mining industry. That being so, the issue for determination, at its core, was whether the exclusion in paragraph (d) was triggered. That in turn required a determination of whether it could be said that the third respondent and its employees were ‘associated for the purpose, directly or indirectly, for the winning, extracting, processing and refining of a material in, on or under the earth …’ (own emphasis).

[21] The definition of ’Mining Industry’ describes the process of extracting, processing and beneficiating a mineral and should be interpreted accordingly. The use of the word ‘and’ in the phrase ‘winning, extracting processing and refining’ suggests that the phrase must be interpreted conjunctively and not disjunctively, i.e. all four elements of the definition must be present before it can be said that there can be an association of employers and employees for the purpose of engaging in the mining industry. It is not sufficient simply for a party engaged only, for example, in the extraction of a material, to be considered as engaged in the mining industry. Put another way, because the words cannot be read disjunctively, those employers and employees who are involved only in the extraction of the mineral are not suddenly rendered miners or part of the mining industry. That would lead to the absurd result that paragraph 1.1.2 would have no meaning and its purpose, which was clearly to carve out civil engineering, would be undermined. The arbitrator appreciated this when he considered that South 32 ‘most definitely’ fell within the exclusion, as its primary purpose was ‘to liberate the coal and process/refine it to a sellable product’.

[22] In relation to the third respondent, it will be recalled that the arbitrator found that there was no evidence that the third respondent associated with its employees for any purpose other than performing the function set out in the service contract (i.e. to receive remuneration for the volume of bulk material moved from one point to another). In other words, the third respondent was not responsible in any way for the beneficiation of mineralised material through processing and refinement.

[23] This leads to a consideration of the applicant’s submissions regarding the arbitrator’s assessment of the evidence, and the contention that on the evidence, the nature of the third respondent’s operations at Wolwekrans were such that the terms of the definition of ‘Mining Industry’ were satisfied. Mathebula, a union branch secretary employed by the third respondent, testified that there were five sites on which the third respondent operated, he being employed at the Klipfontein site. His evidence was that at the SKS, VDD, BMK and Deep Far South sites, the third respondent was engaged in the stripping of topsoil and the overburden and the loading and hauling of both; in the latter instance, to expose what is referred to as the 4-seam coal. Further, the mid-burden was removed, loaded and hauled to the stockpile to expose the 2-seam coal. The 2-seam coal was extracted, loaded and hauled to the stockpile. At the Klipfontein site, the same activities were undertaken except for the loading and hauling of 2 and 4 seam coal which was undertaken occasionally at South 32’s request. In response to a question by his representative ‘Your evidence is that you do not get to the coal extract and haul it?’ Mathebula replied ‘Sometimes we are called to load and haul the coal, but not to extract it (unclear)’. By way of a summary, Mathebula said at the conclusion of his evidence in chief:

MR MAKHURA: Just a clarification, which activity do you get up until?

MR MATHEBULA: Strip topsoil, load and haul it to the topsoil stockpile all the area undergoing rehabilitation and the strip the pre-soil and load and haul the pre-strip to the stockpile all waste dump. Then, we remove the overburden, load and haul it to the way stockpile and/or waste dump. Then we remove the mid-burden and load an order to the stockpile and/or waste dump. At Klipfontein, we expose the coal, the other sites, expose the coal and load and haul coal.

MR MAKHURA: Klipfontein’s operations end with the removal of the mid-burden compared to the other four sites. Your evidence is that you do not get to the coal, extract and haul it?

MR MATHEBULA: Sometimes we are called to load and haul the coal. But not to extract it (unclear).

[24] Scheepers testified ‘South 32 is the mine owner, they got the mining rights. They perform from exploration rights. They perform from exploration up until selling the coal, so they do from A to Z. I have a fairly good knowledge of the contract; I see that Scribante is being paid according to our contract …’. Further, ‘Typically South 32 does its own coal removal. They have the plant to do it themselves’. In regard to the removal of coal, Scheepers said the following: ‘The mine has got there and fleet to remove coal. Only where they cannot reach or they cannot fit in with their fleet because the areas are basically congested and in some cases the areas got too much water and it happened once or twice where the fleet was in breakdown Scribante will get involved in moving coal’.

[25] In relation to what was referred to as a pillar mining, Scheepers testified that the mine had moved over from a normal open pit into an area where ‘… they [the mine] are going for the coal that is left after the tunnels were mined out. Mine is a heavy fleet, you cannot work on those parts of the mine with their equipment and therefore we use our equipment, because theirs does not fit in there’.

[26] Scheepers testified further that while the work was not particularly productive, ‘… they [the mine] punch through the areas where the pillars will be mined out, so we mine the pillars. We have to do backload, so whereby you start at the back of the area, you go behind and swing to the front, so which is usually very unproductive in that situation’. Scheepers testified that the mine was responsible for drilling and blasting, and was responsible for pumping out excessive pit water. He confirmed that the third respondent moved material (including coal) on the four sites but ‘it doesn’t happen very often that Scribante does remove coal at Klipfontein’. The third respondent did not move all the coal, the mine moved the majority of the coal and it was only in those areas where the mine could not get to the coal or where the third respondent was engaged in what Scheepers referred to as ‘mining the pillars’.

[27] Significantly, Mathebula did not testify that the extraction, loading and hauling of coal were normal activities at four of the five sites at the Wolwekrans mine. He was not asked how regularly these activities took place or which activity formed the bulk of the third respondent’s work and which is ancillary, or what volumes of different types of material were removed or how the work undertaken by the third respondent differed from that performed by the third respondent’s employees. Mathebula’s evidence, general as it was, accorded with the specific evidence given by Scheepers. Scheepers did not concede that the third respondent was undertaking mining activities at Wolwekrans. This evidence, in context, was that the term ‘mining services was nothing more than a descriptor given in the contract between the third respondent and South 32.

Those services constituted activities which on any account comprised civil engineering activities, albeit that they were undertaken and performed in a mine. Further, he testified that the mining plan was drafted and determined by South 32 and not the third respondent. The third respondent sought input into the mine plan if it considered that a specific provision of the plan was impossible or impractical.

Otherwise, South 32 was handed the plan of the schedule and it proceeded to execute its tasks. In short, the evidence was that the vast majority of material, including coal, was moved by South 32, that the third respondent was paid a rate per cubic metre for whatever it moved and that where the third respondent was involved in moving coal (which was exceptional) this was generally done on a basis that the third respondent would be paid on a day work basis as its equipment was not used for capacity and because this was not work that the third respondent wanted. None of this evidence was challenged during Scheeper’s cross-examination.

[28] What is significant is that none of the evidence discloses that the third respondent was associated with its employees for the purpose of winning, extracting, processing and refining of a material contemplated by the exclusion. Specifically, there was no evidence that the third respondent was responsible for the beneficiation of coal through processing and refinement.

[29] In the circumstances, I fail to appreciate how it can be said that the arbitrator committed any reviewable irregularity in his assessment of the evidence; in particular, how it can be said that he committed any material error of law in his interpretation of the bargaining council defined scope, the exclusion, and their application to the facts.

[30] But this is not the end of the enquiry. As the Labour Appeal Court has made clear, the exercise of demarcation goes beyond the meaning of words in the defined scope of a bargaining council. To this end, the exercise requires a pragmatic policy decision and requires what the court referred to as the ‘best fit’ (see National Union of Metalworkers of SA (supra) at paragraph 13). To the extent that the applicant submits that the arbitrator committed a material and reviewable irregularities in his allusions to matters of policy, it seems to me from the terms of the award that the arbitrator was acutely aware that the enquiry he was required to conduct extended beyond the mere interpretation of the defined scope of the bargaining council. To that end, he made observations regarding the historical practice that prevailed at the time of the establishment of the bargaining council in which the civil engineering and mining industries were sought to be recognised and regulated, he reflected on the role of the bargaining council in the civil engineering industry (as opposed to the fact that there is no bargaining council in the mining industry, and the like. The history of the exclusion of the mining industry from the scope of the bargaining council agreement is significant, given the nature of the demarcation enquiry. The undisputed evidence of White was that until the formation of a bargaining council for the civil engineering sector, sectoral determinations were issued by the Minister of Labour from time to time in which a distinction between civil engineering activities and what we regarded traditionally as mining activities was maintained. When the formation of the bargaining council was discussed, there was a consent by members of the employer’s organisation in the civil engineering industry that they would be prejudiced should their members engage in opencast or open pit mines and generally undertaking the same activities as the roads and earthworks sectors would be classified as falling within the mining industry when employed on mines, and in the civil engineering industry when employed elsewhere. To this end, the employer’s organisation crafted a definition of the civil engineering industry that included civil engineering activities that were undertaken only at opencast or open pit mines. At the time that the bargaining council sought registration, and objection was lodged by the Chamber

of Mines which, after intervention by NEDLAC, led to significant changes being made to the original proposed scope of the bargaining

council. Those changes resulted in the terms of the existing proposed scope, and in particular, paragraph (d) being the exclusion of the mining industry as defined.

[31] To the extent that the applicant points to the wording of the service contract between the third respondent and South 32, schedule 1 to the contract describes the scope of the third respondent’s services. The description of work records that ‘Wolwekrans Colliery requires the service of a contractor to perform the mining services across the different mining areas in Wolwekrans’ The scope of the work is described in detail. This included topsoil stripping, pre-strip removal, and at Klipfontein, the stripping, loading, hauling and dumping in accordance with the mine plan of all material in order to expose the desired coal seams. Properly construed, none of these obligations bring the activities of the third respondent within the scope of the definition of ‘mining industry’ for the purposes of paragraph (d).

[32] Finally, to the extent that the applicant submits that the arbitrator committed a reviewable irregularity by failing to consider and apply the arbitration award issued in Andru Mining, the facts of that case are distinguishable. Andru Mining was contractually committed to extracting coal from under the earth, using its own equipment to do so with the obligation to meet specific targets in respect of both quantity and quality. It was paid per tonne of coal extracted, and subject to penalties for any failure to meet the specified target. It received no payment for the bulk movement of materials in order to expose the coal. In effect, Andru ran the mine on behalf of the mine owners. In the present instance, the third respondent was contractually committed to moving earth, and but for the ad hoc in limited circumstances described by Scheepers, it did not excavate coal. It was paid according to the amount of bulk material moved. It did not run the mine on behalf of South 32.

[33] In summary, the arbitrator correctly found that there was no evidence that the third respondent was responsible for the beneficiation of any mineralised material, he correctly found that the third respondent was contracted to move bulk material from one point on the mine to a designated stockpile, and that he correctly determined that the third respondent carried out one business, being civil engineering. The minimal and ad hoc activities referred to by Scheepers did not constitute a second business or an enterprise carried on as concrete by the third respondent with the aid of its employees. In short, the arbitrator’s award was based on a conspectus of all the evidence before him, as well as the correct application of the law. The arbitrator did not commit any error of law or other material reviewable irregularity and the application to review and set aside his award stands to be dismissed.

[34] In passing, it warrants mention that the applicant appears to have misconstrued the nature of a demarcation. This is apparent from the address to the arbitrator by the applicants then representative. Although the representative submitted that the correct enquiry is one that focuses on the purpose of the association between the employer and employees in question, he went on to submit that simply because the third respondent was engaged in the activities of extracting coal, loading it and hauling it to a stockpile that it was engaged in the activity of mining. This approach ignores the basis on which demarcations are conducted, where the primary enquiry is into the purpose for which the employer and employees concerned. What the applicant ignores is that the focus in a demarcation enquiry is not on individual activities or on the association between the employer and its client, or between the client and the employer’s employees. The focus is on the purpose for which the employer and the

employee are associated. To focus on a single, incidental activity which in the scheme of things is insignificant and to seek to elevate that activity to the purpose of association, is to entirely misconstrue the nature of the test to be applied.

Costs

[35] Finally, insofar as costs are concerned, section 162 of the LRA affords this court a broad discretion in relation to orders for costs. The court must exercise its discretion taking into account the requirements of the law and fairness. On the morning of the hearing, the applicant’s attorney submitted by email a document entitled ‘replying note ‘. That document extends to 12 pages and amplifiers to a considerable extent the heads of argument previously filed on the applicant’s behalf. This court has previously expressed its displeasure at parties to submit ‘notes’ on the day of the hearing in which they seek to either present an entirely new case or amplify arguments already submitted. No doubt, this practice occurs once counsel is briefed to argue the matter and the inadequacies of the heads of argument already filed are exposed. Heads of argument seven important purpose. They notify the representatives of opposing parties of the nature of the submissions that will be raised and which must, if necessary, be countered. More fundamentally, heads of argument assist the court in preparing the opposed motion roll. Parties who continue this practice run the risk of having their applications struck from the roll with an order for costs on a punitive scale. The interim, the filing of extensive submissions on the morning of the hearing that served to ambush representatives appearing for the third and fourth respondents and to greatly inconvenience the court, is a factor that must necessarily be taken into account in the determination of costs. In my view, given the applicant’s conduct and the fact that the third and fourth

respondents have succeeded in their opposition to the application, there is no reason to deprive them of their costs, including the costs of two counsel where so engaged.

Order

I make the following order:

1. The application is dismissed, with costs, such costs to include the costs of two counsel where so engaged.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES

For the applicant: Adv l Kutumela, instructed by Cheadle Thompson and Haysom Inc

For the third respondent: Adv A Annandale SC, with her Adv W Shapiro, instructed by RM Strauss Attorneys

For the fifth respondent: Adv R Itzkin, instructed by Cliffe Dekker Hofmeyr