Rapid Dawn 1123 CC t/a Bessenger Associates Labour Hire and Others v Motor Industry Bargaining Council (MIBCO) and Another (JR2435/15) [2016] ZALCJHB 557 (8 December 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2435/15

In the matter between:

RAPID DAWN 1123 CC t/a BESSENGER First Applicant

ASSOCIATES LABOUR HIRE

BOET JORDAAN SPARES AND EQUIPMENTCC Second Applicant

RITE MOTOR SPARES CC Third Applicant

EASTERN TRANSVAAL SPARES EXPORT CC Fourth Applicant

and

MOTOR INDUSTRY BARGAINING COUNCIL First Respondent

(“MIBCO”)

ARBITRATOR MARLEZE BLIGNAUT N.O Second Respondent

Heard: 13 September 2016

Delivered: 08 December 2016

Summary: Failure by a commissioner to apply the provisions of the Labour Relations Act 66, 1995 properly and to misconstrue the evidence led at the arbitration hearing constitute a reviewable irregularity.

JUDGMENT

MTHOMBENI AJ

Introduction

[1] This is an application for the reviewing and setting aside of an arbitration award (“the award”), dated 22 November 201?, issued by the second respondent (“the commissioner”) under case number MIPT18511. The application is unopposed.

Background

[2] The first respondent is a bargaining council established in terms Section 29 of the Labour Relations Act[1] (“the LRA”).The award under review was issued by the commissioner under the first respondent’s auspices at its

Dispute Resolution Centre, Northern Region.

[3] The first applicant had been rendering a temporary employment service, as defined in Section 198 of the LRA, since 1 November 2011. The first applicant is a temporary employment service for second, third and fourth applicants. At the time, the other applicants were not registered with the first applicant.

[4] On 24 March 2014, the first respondent registered the first applicant in terms of its Collective Agreement. Since then, all monies due to the first respondent had been deducted by the first applicant from the salaries of the relevant employees and paid over to the first respondent.

[5] Subsequently, the first respondent brought several claims, following the issuing of contravention notices by Madoda Sonwabo (“Sonwabo”), against the first applicant in respect of clauses 11 and 21 of its Administrative Collective Agreement of 31 May 2002, concerning returns and interest, and clauses 6(4) and (8) of its Auto Workers Provident Fund Agreement of 24 March 2005, relating to contributions and interest. Later, the other applicants were also joined as defaulters.

[6] On 24 June 2015, the matters were brought before the commissioner for arbitration. After a reconciliation was conducted, all the monies, which were due to the first respondent subsequent to the date of the first applicant’s registration; namely 24 March 2014, were found to have been paid by the first applicant to the first respondent. The first respondent, thus, abandoned those claims.

[7] Consequently, the commissioner consolidated all matters which concerned the period prior to 24 March 2014 under one case number.

These matters related to three claims amounting to R 25 423.27,167 833.31 and R 4 818.40, respectively.

[8] The arbitration hearing was adjourned to 10 September 2015. On the latter date, after the first respondent had called Sonwabo who on 7 February 2014 had conducted the inspection into the first applicant and issued contravention notices, as its sole witness. Thereafter, the applicants close their case without calling witnesses. The matter was adjourned to 10 November 2015, the day on which the arbitration hearing was finalised.

[9] In her award, the commissioner concluded:

“6.1 At the time of the investigation Mr. Madoda Sonwabo deposed of (sic) affidavits in respect of each of the respective cases.

6.2 The evidence of Mr. Sonwabo was also left unchallenged at the arbitration hearing.

6.3 I, therefore, conclude, based on the evidence presented, that the first and further respondents, contravened the provisions of the Council’s collective agreements as which (sic) will be reflected below.

6.4 In respect of the question of liability I find no reason to deviate from the provisions of section 198 read with Item 3.7 of the Council’s Main Collective Agreement and to find the first respondent together with the relevant further respondent (sic) should be held jointly and severally liable in respect of each of the respective claims”.

[10] In addition, the commissioner ordered the applicants to pay further interest of 1.5% per month in respect of each claim with effect from 2 March 2014 on the outstanding capital.

Grounds of review

[11] The applicants submit that the commissioner committed misconduct in relation to the duties of an arbitrator and/or committed gross irregularities in the conduct of the arbitration proceedings and/or exceeded her powers and/or failed to correctly apply the law in one of the following respects:

11.1 She failed to properly or at all evaluate the evidence of the only witness that testified at the arbitration hearing, namely Sonwabo;

11.2 She failed to properly or at all evaluate whether or not the first respondent had established a prima facie case on any basis and/or on the basis testified to by Sonwabo;

11.3 She misdirected herself as to the basis upon which the first respondent presented its case as per the evidence of Sonwabo;

11.4 She wrongly concluded that the first respondent had established a prima facie case, requiring an answer from the applicants;

11.5 She concluded that the applicants had a burden to rebut bald and vague allegations of the first respondent, without those having been substantiated or howsoever testified to in the evidence of Sonwabo;

11.6 She relied upon or attached undue weight to affidavits of Sonwabo, about which, and the contents of which, the first respondent had failed to lead evidence by Sonwabo who, when questioned about inconsistencies in those affidavits, testified that they were incorrect;

11.7 She took certain documents before her into account, while disregarding others without reason;

11.8 She took certain documents before her, about which no evidence was led into account, while disregarding others about which no evidence was similarly led;

11.9 She had regard to hearsay evidence, which was not dealt with in the testimony of witnesses who were available if the first respondent wished to call them; and

11.10 She made an award against the applicants in respects of monies which the first applicant allegedly owed the first respondent prior to 1 November 2011, while the first applicant became a temporary service for the other applicants.

Relevant collective agreements, constitution of MIBCO and legislation

The Motor Industry Bargaining Council - Mibco Collective Administrative Agreement

[12] Clause 6, which deals with the administration of the agreement, states:

“(1) The Motor Industry Bargaining Council – MIBCO, registered in terms of section 29 of the Act, hereinafter referred to as the “ Council”, shall be the body responsible for the administration, interpretation and enforcement of any provision of this Agreement, the Main Agreement or any other collective Agreements entered into by the parties to the Council”.

[13] Clause 7, concerning agents, states:

“The Council or any Regional Council may appoint one or more specified persons as agents to assist in giving effect to the terms of this Agreement, and it shall be the duty of every employer and every employee to permit such persons to enter such establishment,

institute and complete such enquiries and to examine such documents, books, wage sheets, time sheets and pay tickets, question such individuals and to do all such acts as may be necessary for the purpose of ascertaining whether the provisions of this Agreement are being observed”.

The Motor Bargaining Council – MIBCO Constitution

[14] Clause 31.2, which deals with agents and designated agents, states:

“13.2.1 The Council may appoint one or more specific persons as agents to assist in giving effect to the terms of any agreement which may be arrived at by the parties.

An agent may enter any establishment and may question any employer or employee and inspect the record of wages paid, time worked and payment made for premium bonus work and overtime, for the purpose of ascertaining whether the terms of such agreement are being observed.

13.2.2 The Council shall apply to the Department of Labour for agents to become designated agents in terms of the Act”.

The Motor Industry Bargaining Council – Mibco Main Collective Agreement

[15] Clause 3.7(2) on temporary employment service states:

“In accordance with section 198 of the Labour Relations Act-

(a) …

(b) the temporary employment service and the client shall be jointly and severally liable if the temporary employment service in respect of any of its employees contravenes-

(i) a collective Agreement concluded by Bargaining Council that regulates terms and conditions of employment…”

The Labour Relations Act 66, 1995

[16] Section 33, on the appointment and powers of designated agents of bargaining councils, states:

“(1) The Minister may, at the request of a bargaining council, appoint any person as the designated agent of that bargaining council to promote, monitor and enforce compliance with any collective agreement concluded in that bargaining council.

(1A) A designated agent may-

(a) secure compliance with the council’s collective agreements by-

(i) Publicising the contents of the agreements;

(ii) Conducting inspections;

(iii) Investigating complaints; or

(iv) Any other means the council may adopts; and

(b) Perform any other functions that are conferred or imposed on the agent by the council.

(2) A bargaining council must provide each designated agent with a certificate signed by the secretary of the bargaining council stating that the agent has been appointed in terms of this Act as a designated agent of that bargaining council”.

[17] Section 33A (3) states:

“A collective agreement in terms of this section may authorise a designated agent appointed in terms of section 33 to issue a compliance order requiring any person bound by that collective agreement to comply with the collective agreement within a specific period”.

[18] Section 198(4) states:

“The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any of its employees, contravenes-

(a) A collective agreement concluded in a bargaining council’.

Analysis

[19] The commissioner was enjoined to determine whether the applicants were in breach of or had failed to comply with the provisions of the collective agreements.

[20] It was common cause that contravention notices the first respondent had issued to the first applicant related to the between 3 January 2011 and 2 March 2014.

[21] The commissioner concluded that, based on the evidence presented, the applicants had contravened the provisions of the collective

agreements. Further, the commissioner found that the evidence of Sonwabo was left unchallenged and that the first respondent had

complied with the requirements set out in its collective agreement, read with the provisions of section 33A of the LRA.

[22] On the contrary, upon perusal of the record of the arbitration proceedings, Mr Erasmus, the first applicant’s representative

at the arbitration hearing, under cross-examination challenged Sonwabo’s testimony, pointed out discrepancies and contradictions, which were not cured under re-examination, and elicited concessions.

[23] To illustrate, I make the following extracts from the record:

“MR ERASMUS: Right. Now, I put it so (sic) you that that visit in February of 2014 is some three months prior to you having been appointed as a designated agent, do you agree with me?

MR SONWABO: I do agree with you. (page 22 of the record, line-12).

MR ERASMUS: But I understand your evidence to say that during that period and also the period of the inspection you were not a designated but, a normal agent, let us call it, in terms of clause 7 of the Collective Agreement do I understand you correct (sic)?

MR SONWABO: Yes. (page 22 of the record, line13-17).

MR ERASMUS: Okay. So it is common cause that you were an agent but not a designated agent when you conducted your investigation in February, in (sic) that so?

MR SONWABO: That is correct.

MR ERASMUS: Now if this thing here on page 100 of Bundle B is the compliance order as envisaged in (sic) section 33A of the Act, that is your evidence, where you signed it off here it says Madoda Sonwabo,were you a designated agent or were you not?

MR SONWABO: I was not. (page 31 of the record, line 14-19).

MR ERASMUS: Yes, I will take you there now, I will take you there shortly, but what we are dealing with is 33A of the Act, can I put to you bluntly, did you not comply with 33A (3) of the Act when you signed these three notice (sic), yes or no?”

MR SONWABO: No. (page 34 of the record, line 1-6).

MR ERASMUS: So then once again Mr Sonwabo, I put it to you that documents that you see on page 100,110 and 115 of that bundle are legally invalid

because you were not a designated agent when signed then (sic), yes or no.

MR SONWABO: I agree. (page 35 of the record, line12-16)”.

[24] Sonwabo, by his own admission, was not appointed as a designated agent as contemplated in section 33 of the LRA. It follows that he was not clothed with the authority to issue compliance notices as envisaged by section 33A of the LRA. In my view, those notices were null and void. Thus, it cannot be said that the first respondent had complied with either its collective agreements or the LRA.

[25] This Court has held that commissioners are obliged to apply the provisions of the LRA correctly. Failure to do so results in a reviewable irregularity.[2]

[26] The commissioner’s conclusion was, therefore, not supported by the law or evidence before her. In particular, the commissioner

failed to take into consideration the evidence of Sonwabo given under cross-examination, but incorrectly found that his testimony was unchallenged. In my view, the commissioner failed to apply her mind.

[27] From this perspective, it cannot be said that the decision reached by the commissioner is one that a reasonable decision-maker could reach.

[28] I, accordingly, make the following order:

28.1 The arbitration award, dated 22 November 2015, issued by the second respondent under case number MIPT18511, is reviewed and set aside.

28.2 The claims by the first respondent against the applicants are dismissed.

28.3 I make no order as to costs.

______________________

MTHOMBENI AJ

Acting Judge of the Labour Court

APPEARANCES

FOR THE APPLICANTS: E J Steenkamp

INSTRUCTED BY:

Erasmus-Scheepers Attorneys

FOR THE RESPONDENTS: No Appearance

[1] Act 66 of 1995.

[2]See: Le Roux v CCMA & Others (2000) 21 ILJ 1366 (LC), Miladys,a division of the Mr Price Group Ltd v Naidoo & Others (2002) 23 ILJ 1234 (LAC),Transnet Limited v CCMA & Others [2001] 6 BLLR 684 (LC),Mzeku & Others v Volkswagen SA (Pty) Ltd & Others (2001) 22 ILJ 1575 (LAC) ).