Solidarity obo Members v South African Police Service and Others (J2145/14) [2014] ZALCJHB 462 (26 November 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J 2145/14

SOLIDARITY obo MEMBERS

Applicant

and

THE SOUTH AFRICAN POLICE SERVICE

First Respondent

THE MINISTER OF POLICE NO

Second Respondent

THE NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICE

Third Respondent

THE POLICE AND PRISONS CIVIL RIGHTS UNION

Fourth Respondent

THE SOUTH AFRICAN POLICE UNION

Fifth Respondent

Heard: 23 October 2014

Delivered: 26 November 2014

TLHOTLHALEMAJE, AJ

Introduction:

[1] The applicant (Solidarity) brought this application before the court on a semi-urgent basis to seek an order in the following terms:

1.1 Declaring that the First Respondent’s refusal to consult the Applicant as prescribed by Section 16 of the Employment Equity Act, 55 of 1998 (The EEA) preparatory to the adoption of its equity plan, which is to commence on 1 January 2015, to be in breach of the EEA, and thus unlawful,

1.2 Declaring that the Applicant’s members employed by the First Respondent have been and/or will be unfairly discriminated against by the First Respondent’s refusal to consult the Applicant.

1.3 Declaring that the First Respondent’s refusal to consult the Applicant as required by Section 16 of the EEA on the matters prescribed by Section 17 unlawfully prevents the Applicant and its members employed by the First Respondent from exercising their right to be consulted prior to the adoption of the equity plan which is to commence on 1 January 2015.

1.4 Declaring that the Applicant is entitled to be consulted in terms of the aforesaid section over matters contemplated in section 17 of the EEA;

1.5 Directing the First Respondent to permit the Applicant to represent its members employed by the First Respondent at consultations preparatory to the adoption of its equity plan which is to commence on 1 January 2015

Background to the application:

[2] This application turns on the interpretation of Section 16 of the Employment Equity Act. Solidarity as a registered trade union has about 2400 members who are employed by the First Respondent (SAPS). It is common cause that Solidarity has never made an application to SAPS to be recognized as a trade union representing its members. It however contended that it brought this application in its own interest and those of its members and ‘minority groups’, who have suffered prejudice and/or might actually or potentially suffer prejudice in consequence of the lack of proper representation during negotiations preceding the adoption of the successive Employment Equity Plan of the SAPS, which needs to commence on 1 January 2015.

[3] In Solidarity’s view, it has a right to be consulted as the nominated representative of its members. Neither the members claimed by Solidarity nor the ‘minority groups’ it had referred to are identified in the pleadings. The prejudice suffered by these members and the ‘minority groups’ is equally not specified with any particularity. This issue albeit significant, was not pursued by any of the respondents.

[4] The basis of approaching the Court for relief according to Solidarity is that it had made a request to Second Respondent (National Commissioner) on 7 August 2014 to permit it to engage in consultations and had not received a response. In Solidarity’s view, SAPS has since the adoption of the first equity plan in 2001, consulted only with the Fourth Respondent, POPCRU and the Fifth Respondent, SAPU. Accordingly, it was fair to assume that the National Commissioner had no intention of consulting with it despite its request and/or entitlement to be consulted.

[5] For the purposes of this introduction, it is also important to point out that POPCRU and SAPU are majority unions within SAPS. According to SAPU, it represents 85 683 members out of 210 422 employees in the employ of SAPS. POPCRU in its papers did not indicate its membership figures, but it is common cause that the two unions far surpass the

threshold of 30 000 members set at the level of the Safety and Security Sectoral Bargaining Council (The SSSBC). It is at that level where the Employment Equity Plan after consultations, is turned into a collective agreement which is binding on all employees in SAPS, including members of Solidarity. SAPS being a designated employer, has a duty to adopt and implement affirmative action measures in compliance with the provisions of section 16 of the EEA.

[6] The Second Respondent (Minister) carries the overall accountability for the Plan and is responsible for driving the program in terms of Clause 9 of the current Plan. The National Commissioner is responsible for the championing of the Plan as well as its overall management and implementation. POPCRU and SAPU by virtue of their status at the level of the SSSBC play a major role in the consultation, monitoring and evaluation of the implementation of the Plan and programmes within SAPS.

[7] The formulation of the EE plan follows a process of consultation that takes place at various levels, including at Provincial level, where each province tables its EE Implementation Plan following consultations. Consultations further take place within the Divisions and Components; at the National Equity Office, which monitors progress in regards to the Plan, and furthermore within the individual business units. The National Commissioner and the National Department of Labour are then furnished with a section 21 report. Ultimately, and before implementation, final consultations take place at the level of the SSSBC with POPCRU and SAPU, resulting in a collective agreement as defined in section of 213 of the Labour Relations Act.

The issue of ‘Semi-Urgency’:

[8] Only the fourth respondent had raised the issue of urgency. The concept of ‘semi-urgency’ is a misnomer in this court as there is no provision made for it in the rules. A matter is either urgent or not[1], and the proper route to follow in approaching the Court where a matter is not urgent in the true sense is through the provisions of paragraph 12.14 of the Practice Manual of this Court, which provide that;

“An applicant that wishes to have an application heard on an expedited but not an urgent basis may approach the Judge President or his deputy, with a properly motivated request in writing, for a direction as to the conduct of the application, time periods that will apply and the allocation of a date for the hearing.”

[9] In view of Solidarity having failed to utilise the above route, it is only proper to consider the matter in the ordinary course of urgent applications. Rule 8 of the Rules for the Conduct of proceedings in the Labour Court[2] deals with urgent applications. The Labour Appeal Court in Jiba v Minister: Department of Justice and Constitutional Development and Others[3] explained the requirements of Rule 8 as follows;

“Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and the degree to which the ordinary applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking deviation from the rules”.

[10] In Commissioner For the South African Revenue Services v Hawker Air Services (Pty) Ltd and Another[4] Cameron JA (as he then was) dealt with the urgency in the following terms:

“Urgency is a reason that may justify deviation from the times and forms the rules prescribe. It relates to form, not substance, and is not a prerequisite to a claim for substantive relief. Where an application is brought on the basis of urgency, the rules of court permit a court (or a judge in chambers) to dispense with the forms and service usually required, and to dispose of it ‘as to it seems meet’ (Rule 6(12)(a)). This in effect permits an urgent applicant, subject to the court’s control, to forge its own rules (See Republikeinses Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972(1) SA 773 (A) 782A-783H) which must ‘as far as practicable be in accordance with’ the rules). Where the application lacks the requisite element or degree of urgency, the court can for that reason decline to exercise its powers under Rule 6(12) (a). The matter is then not properly on the court’s roll, and it declines to hear it. The appropriate order is generally to strike the application from the roll. This enables the applicant to set the matter down again, on proper notice and compliance.”

[11] It follows that an applicant seeking urgent relief must adequately and in detail, set out in the founding affidavit, the reasons for the urgency. The basis for allowing parties to dispense with the Rules of Court relating to time periods is to prevent the occasioning of an injustice and involves the balancing of this consideration with that of the rights of parties to a considered opportunity to place their cases before the court.[5]. As it was aptly put in Vermaak v Taung Local Municipality[6]:

“The consideration of the first requirement being why is the relief necessary today and not tomorrow, requires a Court to be placed in a position where the Court must appreciate that if it does not issue a relief as a matter of urgency, something is likely to happen. By way of an example if the Court were not to issue an injunction, some unlawful act is likely to happen at a particular stage and at a particular date.”

[12] On a consideration of the facts, and on Solidarity’s own version, no basis has been laid as to the reason this application should be treated as urgent. This conclusion is fortified by the assessments made by the Fourth Respondent, which I am in agreement with. Firstly, on its own version, Solidarity had never been consulted in relation to the preparation and implementation of any of SAPS EE Plan since 2001. Since then, three employment equity plans have been prepared and implemented. Secondly, the current plan expires at the end of 2014 and the new one is scheduled to commence in January 2015. Solidarity has not indicated what it had done between 2000 and 2010 in order to be consulted in relation to the EE Plans. If the issue of consultation on the EE Plan has not been urgent for Solidarity since 2001, no material has been placed before the Court as to the reason it has suddenly become urgent.

[13] Thirdly, Solidarity launched the application some four months before the expiry of the current EE plan and the commencement of the new plan despite being always aware that it was and would not be consulted. Fourthly, and on the whole, Solidarity has not brought this application within a reasonable time, and has not sought interdictory relief against the respondents. The contention that SAPS has not responded to the demand that Solidarity should henceforth be consulted cannot suddenly make the matter urgent, more specifically when regard is to be had to the merits of its submissions as will be discussed below. It appears that from Solidarity’s perspective that a matter should be treated as urgent when it decides it should be urgent. The allegations that its members or other unidentified ‘minority groups’ may be discriminated against or their rights prejudiced if the matter is not treated as urgent are indeed a red herring, and there is no basis for a conclusion to be made that if the matter is not treated as urgent an injustice will occur. It can safely be concluded therefore that the urgency that Solidarity claims is self-created.

[14] In the light of the above conclusions, this application should ordinarily be struck off the roll. This however would do injustice to the case of the First, Second, Third and Fifth respondents, who seek that the application should be dismissed. I will then for the sake of completeness deal with the merits of the application.

The applicable provisions:

[15] Section 16 of the Employment Equity Act provides as follows;

“16. Consultation with employees

(1) As designated the employer must take reasonable steps to consult and attempt to reach agreement on the matters referred to in section 17-

(a) with a representative trade union representing members at the workplace and its employees or representatives nominated by them; or

(b) if no representative trade union to present members at the workplace, with its employees or representatives nominated by them.

(2) The employees or their nominated representatives with whom an employer consults in terms of subsection (1) (a) and (b), taken as a whole, must reflect the interest of-

(a) employees from across all occupational levels of the employer’s workforce

(b) employees from designated groups; and

(c) employees who are not from designated groups

(3) This section does not affect the obligation of any designated employer in terms of section 86 of the Labour Relations Act to consult and reach consensus with a workplace forum on any of the matters referred to in section 17 of this Act”

[16] “Section 17 Matters for consultation;

A designated employer must consult the parties referred to in section 16 concerning;

(a) the conduct of the analysis referred to in section 19;

(b) the preparation and implementation of the employment equity plan referred to in section 20; and

(c) a report referred to in section 21”

[17] The above provisions are supplemented by two codes of Good Practice. The first is on the ‘Integration of Employment Equity Into Human Resource Policies and Practices’[7]. The objective of this Code is to provide guidelines on the elimination of unfair discrimination and the implementation of affirmative action measures in the context of key human resource areas, as provided for in the EEA. This Code is not intended to be a comprehensive human resources Code, but rather an identification of areas of human resources that are key to employment equity and can be used to advance equity objectives[8]. The Code is intended to be a tool to aid employers to implement employment equity by providing principles that should be incorporated

into employment equity plans and that guide policies and practices. This Code is also intended to provide guidelines to employers to consider and apply as appropriate to their circumstances[9]. Pertinent to these proceedings is clause 5.3.14 of the Code which provides that:

“5.3.14. Consultation

The success of employment equity depends largely on the efficacy of the consultation process. Employers, employees and trade unions must be willing to play a constructive role in the consultation process. Regular and meaningful consultation will contribute to a joint commitment to workplace transformation. It may also foster workplace democracy and productivity. Consultation will ensure that realistic employment equity plans are prepared which address the training and development of designated groups and the adaptation of the workplace to affirm difference.

The involvement of trade unions in the consultation process is not enough. Employers must also consult with employees from across all occupational categories and levels.

5.3.15. It is essential to ensure that whatever form consultation takes, it does not undermine existing collective bargaining processes or existing relationships.’

5.3.16. Transformation committees or other structures that already exist, which bring together employees and management, may need to be adopted in order to serve the consultation purposes of the Act. Necessary adaptations may include bringing in representatives from segments of the workforce that do not already participate, including designated or non-designated groups or trade unions. Where workplace forums exist, there should be a vehicle for consultation, and attempts should be made to ensure that these are as representative as possible. Where no structures exist or current structures are impractical for employment equity consultation, the employer should initiate a process to establish a consultative structure and or support an employee initiative of this nature. Criteria for appointment of representatives to the structure, the number of representatives, their roles and responsibilities and mandates will have to be clearly set out. The representatives on the structure should be trained on understanding and implementing the key components of the Employment Equity Act.”

[19] The other provisions relevant for these proceedings are to be found in the amended regulations[11], which further provide that:

‘3. Consultations

3.1 All employees must be informed of the content and application of the Act, employment equity and anti-discrimination issues, the process to be followed by the employer, and the need for the involvement of all stakeholders, as preparation for their participation and consultation.

3.2 A consultative forum must be established or an existing forum utilised. The forum must include employee representatives reflecting the interests of employees from all occupational categories and levels and both designated and non-designated groups.

3.3 Consultation must include:

· Regular meetings and feedback to employees and management; and

· Access to relevant information by employees.’

[20] In unpacking the above provisions, no issue was taken up with Solidarity’s interpretation of section 16 (1) of the EEA to the effect that it imposes on SAPS, a duty to take ‘reasonable steps to consult and attempt to reach agreement’ on an employment equity plan, and that that ‘consultation is to be held with a representative trade union representing members at the workplace and with employer’s employees or representatives nominated by them’.

[21] The crux of the matter is whether Solidarity is entitled to be consulted over issues surrounding the employment equity plans as contemplated in sections 16 and 17 of the EEA. This question can only be answered within the context of the collective bargaining framework as it currently exists within SAPS. This framework has its foundation in the Constitution and the LRA.

[22] Primary amongst the objectives of the LRA is to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution, in particular and for the present purposes, section 23 (5)[12]; to provide a framework within which employees and their trade unions, employers and employer’s organisations can inter alia, collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest. Section 23 of the LRA further regulates the legal effect of collective agreements[13].

[23] Our collective bargaining system is based on principles of voluntarism and majoritarianism[14]. The Labour Appeal Court in Kem-Lin Fashions CC v Brunton & another[15] emphasised the principle of majoritarianism in the following terms:

“The legislature has also made certain policy choices in the Act which are relevant to this matter. One policy choice is that the will of the majority should prevail over that of the minority. This is good for orderly collective bargaining as well as for the democratisation of the workplace and sectors. A situation where the minority dictates to the majority is, quite obviously, untenable. But also a proliferation of trade unions in one workplace or in a sector should be discouraged. There are various provisions in the Act which support the legislative policy choice of majoritarianism. Some of them are sections 14(1); 16(1); 18(1); 25(1) and (2); 26(1) and (2); 32(1) (a) and (b); 32(3) (a), (b), (c) and (d) and 32(5); 78(b).”

[24] Flowing from the principle of majoritarianism in the LRA is the right to enter into a collective agreement and to set thresholds of representivity for the granting of access, stop-order and trade union leave rights to minority unions[16]; the right to conclude agency shop and closed shop agreements[17]; the right to apply for the establishment of a workplace forum[18] and the right to conclude collective agreements which will bind employees who are not members of the union or unions party to the

agreement as contemplated in section 23 of the LRA.

[25] In the light of the above, POPCRU and SAPU at the level of the SSSBC had set the threshold to be met by other unions for the purpose of exercising of rights. The agreement in terms of which the threshold was set is binding on SAPS, and Solidarity has not challenged that collective agreement.

The submissions:

[26] Section 1 of the EEA defines ‘representative trade union’ as a ‘registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by the employer in a work place’. The same definition is to be found in section 11 of the LRA. The term ‘sufficiently representative’ is not defined in the EEA.

[27] Central to Solidarity’s argument is that from the provisions of section 16 of the EEA, the duty to consult extended beyond the scope of representative trade unions and embraced the representatives of employees at every level within the employer’s workforce. None of the respondents took issue with this contention. It further argued that to the extent that it represented 2400 employees, it must be taken to be a ‘representative nominated’ by employees within the workplace within the meaning contemplated in section 16 (1) of the EEA. It therefore not only expected, but also demanded the right to be consulted on the implementation of the new Employment Equity Plan.

[28] Furthermore, Solidarity held the view that the fact that SAPS only consulted with POPCRU and SAPU was of no consequence; that the fact that the two unions were sufficiently representative was irrelevant; and that it was not relevant that the product of the consultations was tabled at the SSSBC and made a subject of a collective bargaining agreement. Equally irrelevant for Solidarity was the fact that a threshold was embodied in the resolution taken at the SSSBC. It also held the view that no provision was made for the setting of thresholds for the purposes of consultation under the EEA.

[29] Solidarity acknowledged that there was no objection to the conclusion of the collective agreement. It however contended that the existence of a collective agreement was neither necessary nor a sufficient condition for the existence of a valid EE plan, and that the plan could not be clothed with special status by reason of the conclusion of a collective agreement whether inside or outside of a bargaining Council. For Solidarity, it was equally of no consequence that it had never applied to SAPS to be recognised as a trade union representing employees at the workplace. What was important was whether it had the right to be consulted.

The Respondents’ submissions:

[30] In the light of an overlap in the submissions made on behalf of the respondents, these shall be condensed as follows;

30.1 Solidarity failed to prove that it is a representative trade union as contemplated in section 16 (1) (a) of the EEA, and that if it was shown that the conduct of SAPS was reasonable in regard to the consultation process, that should be the end of the matter.

30.2 When regard is had to the provisions of section 21 (8) of the LRA it was clear that the relief sought by Solidarity went against the decisions of the majority union and was thus in conflict with the policy of majoritarianism.

30.3 In regards to the procedure of consultation which was followed by SAPS, it was clear that such a procedure was inclusive and thoroughgoing and met the statutory objects behind section 16 of the EEA.

30.4 Other than the issue of urgency, the application should be dismissed on the grounds that it was premature, and that the relief that Solidarity seeks, on its own terms, was untenable.

30.5 Solidarity made unsubstantiated allegations that the Fifth Respondent failed to comply with its duties as a trade union in terms of the EEA and EE Plan.

30.6 Solidarity had failed to show a clear right, infringement of any right and the absence of alternative remedies.

Evaluation:

[31] Adv Brassey SC on behalf of Solidarity further submitted that section 16 (1) (a) and (b) of the EEA envisaged a wide level of consultation and with different interest groups, and that by virtue of subsection (a), Solidarity was deemed to be a ‘representative’ for the purposes of consultation, as nothing in that subsection prohibited both sets of representation.

[32] Solidarity had sought to place reliance for the demand or entitlement to be consulted on the provisions of clause 5.3.14 (Consultation) of the Code of Good Practice on the Integration of Employment Equity Into Human Resource Policies and Practice. The starting point is that this Code of Good Practice is meant as a guide, and most importantly, must be read in conjunction with the EEA and other Codes issued in terms of the EEA, the Constitution of South Africa and all other relevant legislation, including the LRA. Clause 5.3.14 of the Code provides guidelines in respect of whom the consultations should take place with, and makes it clear that the employers, employees and trade unions must be willing to play a constructive role in the consultation process. In terms of the Code, it is envisaged that employees from across all occupational categories and levels, including with designated or non-designated groups or trade unions are to be consulted. Clause 9 of the current EE Plan ensures compliance with the Code by making provision for the inclusion of all employees who may not be represented by SAPU and POPCRU in the consultative process. Other key stakeholders in the development, implementation, monitoring and evaluation of the SAPS EE Section 20 Plan have been identified. I did not understand Solidarity’s argument to be that this consultative process was flawed other than that it, as an entity, was unlawfully excluded from it.

[33] Based on the submissions made by Solidarity, it is my view that its approach to this matter in relation to the relief it seeks is clearly untenable as correctly pointed out on behalf of the Fourth Respondent. In effect, with its demands and its reasoning in regard thereto, Solidarity clearly aims to upset the established collective bargaining system’s ‘apple cart’ as it exists, and effectively undermine the gains made in that regard. In its view, the collective bargaining arrangements as they exists within SAPS currently are irrelevant, and simply on its say-so. These observations are gleaned from the following:

[34] Section 3 of the EEA provides that it must be interpreted (a) in compliance with the constitution; (b) so as to give effect to its purpose; (c) taking into account any relevant code of good practice issued in terms of that Act or any other employment law; and (d) in compliance with the international obligations of the Republic, in particular, those contained in the ILO Convention 111 concerning Discrimination in Respect of Employment and Occupation. Clause 5.3.15 of the Code relied upon specifically provides that:

‘It is essential to ensure that whatever form consultation takes, it does not undermine existing collective bargaining processes or existing relationships.’

[35] In the light of the above, Solidarity’s arguments are premised on the contention that the provisions of the EEA should be read and applied in isolation from the bargaining framework as alluded to above, including ignoring the fact that such a framework is founded on constitutional provisions. In undermining and completely disregarding the existing collective bargaining arrangements at the level of the SSSBC, Solidarity chooses to ignore the fact that it is not sufficiently representative for the purposes of exercising any rights at that level[19]; that the established principles of majoritarianism as they prevail in our bargaining system are entrenched, and worst still, that it has not, on its own version, sought or endeavoured towards participating in the bargaining framework as it currently exist.

[36] Solidarity has not demonstrated that it has a clear right in the light of the provisions of section 16 of the EEA. Firstly, as already indicated, it does not have sufficient membership to justify recognition at the level of either the workplace or the SSSBC. Its contention that the EEA does not permit the establishment of thresholds is unsustainable in that the EEA specifically provides that it should be interpreted in accordance with the provisions of other labour laws and applicable Codes. The setting of thresholds is permissible under section 18 of the LRA and recognised under clause 5.3.15 of the Code that Solidarity seeks to rely on. The fact that the EEA does not specifically make reference to setting of thresholds does not imply that they should be ignored for the purposes of compliance with section 16 of the EEA.

[37] Solidarity is not a representative union for the purposes of consultations as contemplated in section 16 of the EEA. Having had regard to the provisions of section 21 (8)[20] of the LRA as implored by the decision in NUMSA & others v Bader Bop (Pty) Ltd & another[21], I am in agreement with the submissions advanced on behalf of the First to Third respondents that Solidarity has not advanced any facts which would enable a proper factual enquiry envisaged by section 21 (8) of the LRA.

[38] Solidarity has not laid a basis for a finding to be made that the measures taken by SAPS in the consultation process at the levels mentioned are not reasonable, other than the mere rhetoric that it is entitled to be consulted as an entity by virtue of being ‘nominated’ by its members. However, from the established bargaining structures as they are, Solidarity has no legal right to claim an entitlement to be consulted. Its contention that the consultation process is not inclusive is clearly without substance in that all employees within SAPS are consulted at all levels as already elaborated above.

[39] Solidarity has not supported its allegations that its own members within SAPS have been excluded from the consultation process. Even if Adv Brassey’s contention that the issue in this case is not about collective bargaining but about consultations, no basis has been laid for a conclusion to be made that members of Solidarity, despite being denied a collective platform for the purposes of consultations, have indeed been excluded from that consultative process.

[40] Members of Solidarity, for the purposes of nominating their representatives as contemplated in section 16 (1) (a) and (b) have not indicated in what material respects taken as a whole, the consultative process fell short of reflecting the interests of employees from across all occupational levels of the employer’s

workforce, employees from designated groups; and employees who are not from designated groups as contemplated in section 16 (2).

[41] Reference to ‘representatives nominated by them’ in section 16 (1) (b) of the EEA cannot be interpreted to imply simply because those employees are aligned to Solidarity, it must

necessarily follow that Solidarity is the ‘nominated representative’. It is accepted that there is a lacuna in these provisions to the extent that it is not specified with any particularity where these ‘nominations’ must come from. It can however not imply that the nominated representatives can be from anywhere, let alone from unrecognised or less than sufficiently representative trade unions. If that were to be the case, nothing prevents other employees who are not at all aligned to any union from nominating anyone from anywhere under the sun, to represent them in the consultative process. This clearly would turn the entire consultative process into a farce.

[42] ‘Nominated representatives’ can therefore only imply representatives nominated by employees from within their ranks and within the workplace in the event that they do not belong to or are aligned to any of the recognised unions. It cannot however imply that simply because those employees are members of Solidarity, it therefore follows that it automatically assumes the title of ‘nominated representatives’ as an entity. If this was the case, than any other individuals or grouping may as well claim to be a ‘representative nominee’ for the purposes of consultations under the EEA.

[43] In the light of the above, nothing prevents employees who are aligned to Solidarity from nominating amongst themselves, fellow employees, or even their unofficial ‘shop stewards’ from representing them in those consultative processes. In a sense, Solidarity’s views and influence (if any) in the consultative process can be conveyed through its members within a workplace without it being there as an entity. Ultimately, it does not enjoy the right to be consulted as an entity. To allow for a situation where Solidarity is given a platform in these consultative process as an entity will go against the grain of collective bargaining as established within SAPS. Solidarity cannot be allowed the status of free riding. To do so would in my view be an affront on the provisions of section 23 (5) of our Constitution, the provisions of Part A of Chapter 3 of the LRA, and result in the beginning of the collapse of established collective bargaining structures which SAPU, POPCRU and SAPS have worked hard towards.

[44] A further flaw in Solidarity’s arguments is that it presupposes that its members or the unidentified ‘minority groups’ it professes to represent, or even employees from non-designated groups are not adequately consulted. This flaw is addressed by the provisions of clause 9 of the current employment equity plan as already indicated above. In any event, Solidarity cannot abrogate to itself, the title of the protector of these groups, when it is apparent that both POPCRU and SAPU have members within SAPS across the spectrum. As correctly pointed out on behalf of the Fifth respondent, there are no ‘minority groups’ to talk of within the context of consultations as contemplated in section 16 of the EEA. Worst still, the South African Constitution does not refer to the concept of minorities.

[45] All the other arguments raised by Solidarity regarding the SAPS’ current EE plan being flawed in a number of respects, i.e., arbitrariness, inflexibility, quotas, creation of barriers etc are factors which the Court does not deem necessary to address in view of the fact that they have been succinctly dealt with by the Constitutional Court in the Barnard’s matter[22], and further since they do not take the merits of this application any further.

[46] A further disconcerting factor is that if Solidarity’s demands were to be found to be sustainable, nothing prevents it from making further demands in regards to any other matters of mutual interest that are negotiated and turned into collective agreements at a centralised level. In the end, Solidarity is not sufficiently representative, and has not made any endeavours to be recognised let alone gain access rights. It can therefore not simply claim an entitlement or right to be consulted over matters of mutual interests within SAPS, let alone any rights contemplated under section 16 of the EEA as an entity.

Costs:

[47] Solidarity has failed to satisfy the requirements in respect of the relief it seeks. It has not shown a clear right, or an actual or threatened invasion of the right. It has further not shown that it has no access to alternative remedies. Adv Brassey SC in regard to the issue of costs had submitted that it would be inexpedient to award any costs. It is trite that in awarding costs, the court has to take into account considerations of law and fairness.

[48] It is my view that this application was ill considered and was clearly launched with the intention to cause irritation to the respondents. The attack on both SAPU and POPCRU in Solidarity’s pleadings to the effect that neither of these two unions have taken the interests of the so-called ‘minority groups’ into account for the purposes of consultations over the matters under consideration was unwarranted and a cheap attempt at scoring points. The allegation by Solidarity to the effect that SAPU had no regard to or had failed to comply with its own Constitution in relation to its vision and mission is unsubstantiated and a lame attempt at political point scoring in the turf wars between the two unions. In the end, this application was an abuse of the Court’s process for the purposes of scoring cheap political points. The Court’s integrity should be protected at all costs, and it should sanction such conduct with an appropriate cost order.

Order:

i. The Applicants’ application is dismissed.

ii. The Applicant is ordered to pay to the First, Second, Third, Fourth and Fifth Respondents, the costs of this application.

________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:

Adv M Brassey SC with Adv M Engelbrecht

Instructed by:

Serfontein, Viljoen & Swart Attorneys

For the 1st – 3rd Respondents: Adv T Ngcukaitobi with AdvN Muvungau

Instructed by:

State Attorney

For the 4th Respondent: Adv V Ngalwana SC with Adv F Karachi

Instructed by:

Grosskopf Attorneys

Forth the 5th Respondent: Adv P Kirstein

Instructed by:

Van der Merwe Du Toit Inc

[1] See also De Beer v The Minister of Safety & Security Services/ Police and Another [2013] 10 BLLR 953 (LAC) at para 32 where the LAC held that: “The Act does not refer to ‘semi-urgent interim relief’. Section 158(1) (a) (i) refers to ‘urgent interim relief’.

A matter is either urgent or it is not’.

[2] “(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7). (2)The affidavit in support of the application must also contain- (a)the reasons for urgency and why urgent relief is necessary; (b) the reasons why the requirements of the rules were not complied with, if that is the case; and (c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted”.

[2] “(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(2)The affidavit in support of the application must also contain-

(a)the reasons for urgency and why urgent relief is necessary;

(b) the reasons why the requirements of the rules were not complied with, if that is the case; and

(c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted”.

[3] 2010 31 ILJ 112 at para 18

[4] Case no: 379/2005 at para 9

[5] See National Police Services Union v National Commissioner of the National Police Services and Others (1999) 20 ILJ 2408 (LC)

[6] (JR315/13) [2013] ZALCJHB 43 (12 March 2013)

[7] GG 27866 of 4 August 2005

[8] Clause 2.1 of the Code

[9] Clause 3.4 of the Code

[10] GG 20626 of 23 November 1999

[11] (Made under the EEA) that replaced the regulations published in Government Notice R1360 in Government Gazette 20626 of 23 November 1999, the Notice R955 in Government Gazette 21583 of 2 October 2000 and the Notice in R480 in Government Gazette 28858 of 26 May 2006

[12] ‘Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1)’.

[13] 23 Legal effect of collective agreement. “(1) A collective agreement binds- (a) the parties to the collective agreement; (b) each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them; (c) the members of a registered trade union and the employers who are members of a registered employers' organisation that are party to the collective agreement if the collective agreement regulates- (i) terms and conditions of employment; or (ii) the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers; (a) employees who are not members of the registered trade union or trade unions party to the agreement if- (i) the employees are identified in the agreement; (ii) the agreement expressly binds the employees; and (iii) that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.

[13] 23 Legal effect of collective agreement.

“(1) A collective agreement binds-

(a) the parties to the collective agreement;

(b) each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them;

(c) the members of a registered trade union and the employers who are members of a registered employers' organisation that are party to the collective agreement if the collective agreement regulates-

(i) terms and conditions of employment; or

(ii) the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers;

(a) employees who are not members of the registered trade union or trade unions party to the agreement if-

(i) the employees are identified in the agreement;

(ii) the agreement expressly binds the employees; and

(iii) that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.

[14] Section 18 of the LRA. ‘Right to establish thresholds of representativeness (1) An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace, or the parties to a bargaining council, may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15. (2) A collective agreement concluded in terms of subsection (1) is not binding unless the thresholds of representativeness in the collective agreement are applied equally to any registered trade union seeking any of the organisational rights referred to in that subsection’.

[14] Section 18 of the LRA. ‘Right to establish thresholds of representativeness

(1) An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace, or the parties to a bargaining council, may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15.

(2) A collective agreement concluded in terms of subsection (1) is not binding unless the thresholds of representativeness in the collective agreement are applied equally to any registered trade union seeking any of the organisational rights referred to in that subsection’.

[15] (2001) 22 ILJ 109 (LAC) at para 19

[16] section 18

[17] sections 25 and 26

[18] sections 80 and 81

[19] An issue confirmed by the Constitutional Court in South African Police Services v Solidarity obo Barnard [2014] ZACC 23 (CC)

[20] Section 21 (8) provides that; ‘If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner- (a) must seek (i) to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and (ii) to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union; (b) must consider- (i) the nature of the workplace; (ii) the nature of the one or more organisational rights that the registered trade union seeks

to exercise; (ii) (iii) the nature of the sector in which the workplace is situated; and (iii) (iv) the organisational history at the workplace or any other workplace of the employer; and …’

[20] Section 21 (8) provides that;

‘If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner-

(a) must seek

(i) to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and

(ii) to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union;

(b) must consider-

(i) the nature of the workplace; (ii) the nature of the one or more organisational rights that the registered trade union seeks

to exercise;

(ii) (iii) the nature of the sector in which the workplace is situated; and

(iii) (iv) the organisational history at the workplace or any other workplace of the employer; and …’

[21] [2002] ZACC 30; 2003 (3) SA 513 (CC)

[22] See SAPS v Solidarity obo Baranard [2014] ZACC 23 CC