South African Commercial Catering and Allied Workers Union (SACCAWU) v Southern Sun Hotel (Pty) Ltd (J573/2011) [2012] ZALCJHB 33 (15 March 2012)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

reportable

case no: J573-2011

In the matter between:

SOUTH AFRICAN COMMERCIAL CATERING

AND ALLIED WORKERS UNION (SACCAWU) …....................................................Applicant

(in the application for leave to appeal)

And

SOUTHERN SUN HOTEL INTERESTS

(PTY) LTD …..........................................................................................................Respondent

Decided : In chambers

Delivered : 15 March 2012

Summary : Premature referral of a dispute to the CCMA in contravention of the provisions of a recognition agreement. The Union interdicted from referring a dispute to CCMA. Application for leave to appeal dismissed.

JUDGMENT: LEAVE TO APPEAL

AC BASSON, J

Introduction

This is an application for leave to appeal against an order granted on 11 April 2011 in terms of which this Court interdicted the applicant (in the application for leave to appeal - the South African Commercial Catering and Allied Workers Union - hereinafter referred to as ‘SACCAWU’ or ‘the applicant’) from referring or pursuing a dispute in the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as ‘the CCMA’) concerning the issues referred to by the applicant in its letter of 25 March 2011 to Edward Nathan Sonnenbergs, until such time as the applicant has complied with the provisions of the recognition agreement concluded on 3 November 1993.

The CCMA was also interdicted from considering or in any manner dealing with the dispute referred to it by the applicant on 25 March 2011 and from issuing any certificate of outcome in terms of section 64(1)(a) of the Labour Relations Act. 66 of 1995 (hereinafter referred to as ‘the LRA’).

The respondent Southern Sun Hotel Interests (Pty) Ltd, operates a number of hotels throughout the Republic of South Africa and has an established relationship with SACCAWU which dates back to 1993.

The application for leave to appeal

The applicant filed an application for leave to appeal on 29 June 2011, almost two months out of time. It was submitted that the orders interdicting SACCAWU from pursuing its referral of the dispute to the CCMA and preventing the CCMA from conciliating the dispute are bad in law. In support of this argument SACCAWU solely relied upon the principles established in County Fair Foods (Pty) Ltd v FAWU and Others1 and argued that this decision is ‘decisive of the dispute’.

The respondent opposed the application for leave to appeal on the basis that SACCAWU’s total reliance on the County Fair decision is misplaced and not decisive. It was further argued that the County Fair decision does not bear on the determination of the dispute in this case. The respondent, therefore, argued that SACCAWU has failed to satisfy the test that there is a reasonable prospect that the Labour Appeal Court may come to a different conclusion to that of the Labour Court.

Application for condonation for the late filing of the application for leave to appeal

Apart from opposing the application for leave to appeal on the basis that SACCAWU has not made out a proper case for leave to appeal, the respondent further opposed the application on the basis that the application for leave to appeal is late and that no proper case for condonation has been made out in the application for condonation.

Rule 30 of the Labour Court Rules provides that an application for leave to appeal against a judgment or order must be brought within 15 days of the date of judgment or order. This Court delivered its judgment on 11 April 2011. The application for leave to appeal accordingly ought to have been delivered on 6 May 2011. The application for leave was, however, only delivered on 29 June 2011 and is therefore almost two months out of time.

SACCAWU was represented by Mr. Baboyi who is legally qualified and SACCAWU’s in-house legal representative. He was also present at the hearing of the urgent application when the matter was argued. The order was granted immediately after the hearing of the matter in the presence of Mr. Baboyi. It is therefore reasonable to accept that Mr. Baboyi understood the nature of the proceedings as well as the order granted by the Court. Despite the fact that Mr. Baboyi was present when the order was granted and despite the fact that the respondent has also sent the order to the applicant on 11 April 2011, no steps were taken to timeously deliver the application for leave to appeal.

It is relevant to refer to some of the facts that preceded the application for the interdict as it has a bearing on the merits pertaining to the application for condonation. I will also refer to the events that took place after the order was granted in so far as those events are relevant in deciding the application for condonation.

Prior to launching the urgent application for an interdict, the respondent had referred a dispute in terms of section 24 of the LRA relating to the interpretation and application of the recognition agreement entered into between the applicant and the respondent to the CCMA. (I will refer to this agreement in more detail hereinbelow.) In terms of this referral the respondent sought a determination from the CCMA that its interpretation of clause 6.1 of the recognition agreement was correct namely that any dispute about matters of mutual interest should be heard separately from the annual negotiations on the terms and conditions of employment as provided for in clause 6.1 of the recognition agreement. The interpretation dispute was set down by the CCMA for hearing on 23 June 2011 and was to continue on 4 August 2011 when the proceedings could not be finalised. The application for leave to appeal was filed on 29 June 2011.

Subsequent to the granting of this Court’s order (on 11 April 2011), SACCAWU again declared a dispute with the respondent on 13 April 2011 (hereinafter referred to as ‘the second dispute’).2 The second referral to the CCMA was in all material respects the same as the dispute that was interdicted by this Court. The second dispute was set down for conciliation by the CCMA. The respondent brought a second urgent application to the Labour Court (hereinafter referred to as ‘the second application’) to interdict and restrain the applicant from pursuing the second referral until such a time that the applicant has complied with the provisions of the recognition agreement. The second application was duly served by hand on the applicant.

The second application was not opposed by SACCAWU and an interim order was granted by my learned brother Van Voore, AJ with the return date 30 June 2011. In terms of the order, SACCAWU was interdicted from referring or pursuing a dispute relating to terms and conditions of employment concerning bargaining unit employees in terms of the recognition agreement until such time as the CCMA has finally determined the interpretation dispute. The CCMA was directed to take such steps as may be reasonably available to it to expedite the arbitration hearing in respect of the interpretation dispute. The interim order was served immediately after the hearing of the second application on 31 May 2011. The respondent contended in the second application that it was seeking a second interdict on the basis that the second dispute was the same as the first and that SACCAWU was bound by the first order (issued by this Court 11 April 2011.) SACCAWU did not oppose the second application and more importantly did not indicate that it was the SACCAWU’s understanding that the first judgment was not of binding effect or that it was interim in nature.

The Rule Nisi issued by Van Voore, AJ was discharged on the return date by agreement between the parties on the basis that the applicant had agreed to accept the respondent’s position and to refer two separate disputes to the CCMA in accordance with the respondent’s characterisation of such disputes without prejudice to its right to appear in this appeal and its rights to argue its interpretation of the relevant provisions of the recognition agreement in terms of the interpretation dispute.

In respect of the application for condonation, the respondent argued that the delay in bringing the application for leave to appeal is excessive and that there is no reasonable explanation for the excessive delay.

The deponent (Mr. Molefe) to the founding affidavit states that he and Mr. Baboyi belaboured under the impression that this Court’s order (dated 11 April 2011) was not final and that it was merely an interim order. There is no merit in this submission. It is clear from the order that the order is final in nature and that it does not provide for a return date nor does the order provide that the order is made pending any later event.

I am therefore in agreement with the submission that this is not only improbable but also a disingenuous attempt by SACCAWU to rely on the alleged ignorance of Mr. Molefe and Mr. Baboyi as a basis for justifying their failure to timeously deliver the application for leave to appeal. It is furthermore instructive to note that Mr. Baboyi, who was in Court on the day of the hearing did not even file a confirmatory affidavit to the application for condonation. Mr. Baboyi therefore does not even attempt to offer any explanation to this Court as to why he belaboured under this impression.

Lastly, if regard is had to the notice of motion, it is clear that the respondent was seeking a declaratory order and two interdicts in final terms. As already pointed out, the order is clearly final and not made pending any later event. The fact that SACCAWU almost immediately issued a new notice of dispute and referred virtually the same dispute to the CCMA for a second time is also inconsistent with their own understanding of the order namely that they thought that the order only had an interim effect. Clearly if this was the case they would not have referred a second dispute.

I am therefore not persuaded that the applicant has offered a reasonable explanation for the delay. In fact, the explanation is wholly unreasonable and highly improbable. It is in light of this finding that I find that it is therefore not necessary to consider the prospects of success in the application for leave to appeal.

Lastly, even if it was so that Mr. Molefe and Mr. Baboyi did not appreciate the nature of the order granted by this Court, they must have been aware of the final nature of the order at the very latest after the order was granted by Van Voore, AJ on 31 May 2011. No proper explanation for not having filed the application for leave to appeal soon after the second order is tendered. Moreover, there is no explanation why the persons involved in the on-going dispute with the respondent did not receive or consider the second application which was duly and properly served on SACCAWU.

In the event, I am of the view that the application for condonation should fail. See in general Melane v Santam Insurance Co Ltd3 where the Court pointed out that in considering the application for condonation, the Court will have regard to the degree of lateness; the explanation therefore; the prospects of success on the merits; the importance of the case and other considerations. The explanation for the delay should be reasonable and where the applicant for condonation does not offer a reasonable explanation for the delay, the Court will not consider the prospects of success. See in this regard NUM and Others v Western Holdings Gold Mine4 and Waverley Blankets Ltd v Ndima and Others; Waverley Blankets Ltd v Sithukuza and Others.5 The fact that there are strong prospects of success on the merits is therefore irrelevant where no proper explanation for the delay has been offered.

In the event I am wrong in refusing the application for condonation, I will now briefly turn to the merits of the application for leave to appeal.

Brief background facts

The matter came before this Court on 11 April 2011 on the basis of urgency. This Court granted an order interdicting SACCAWU from pursuing the dispute at the CCMA on the basis that the referral to the CCMA was premature because SACCAWU had not complied with the requirements of clause 9.1 of the recognition agreement.

SACCAWU and the respondent are bound by a recognition agreement regulating collective bargaining between the two parties and the resolution of disputes. The agreement deals with organisational rights and sets out the basis on which the applicant and the respondent will negotiate wages and other substantive terms and conditions of employment applicable to the parties within the bargaining unit defined in the agreement. The applicant represents the majority of the employees.

Clause 6 of the recognition agreement deals with the process to be employed when negotiating wages and other terms and conditions of employment. Clause 9 of the agreement deals with the process to be followed if a dispute arises between the parties in respect of the issues dealt with in terms of the recognition agreement. Clause 6 (6.1) reads as follows:

‘The Company and the Union will meet annually to negotiate terms and conditions of employment of all employees falling within the

bargaining unit. Negotiations may also take place outside these annual negotiations on other matters of mutual interest, should both parties agree that it is necessary to do so.’

Clause 9.1 and 9.2 of the agreement read as follows:

‘9.1 In the event of the parties being unable to resolve any issue which has already been dealt with in terms of this agreement, either party may declare itself in dispute with the other party by submitting a written statement of the issues giving rise to the dispute together with the required settlement. Such written statement must be acknowledged by the receiving party within seven days of receipt and any remedies and/or alternatives suggested.

9.2 In the event of deadlock persisting between the parties, it is agreed that the following procedure be followed:

9.2.1 In a dispute where referral to more than one Industrial Council and/or Department of Manpower is necessary, the applicant in the dispute shall refer the dispute to the Department of Manpower, Johannesburg, in terms of the provisions of the Labour Relations Act. Where the dispute does not arise in any of the Johannesburg units of the Company, it is agreed that the dispute be referred to any other Industrial Council or Department of Manpower which has jurisdiction. In so doing the parties agree that they will consider all legal requirements as well as procedural requirements to have been fulfilled in the referral of the dispute.

9.2.2 In the event of any other Industrial Council having jurisdiction in a particular dispute at the units within the Company, the parties shall jointly advise the said Council/s that they have been unable to resolve the dispute and, having met in terms of Clause 9.2.1, request the Secretary of the Industrial Council to report immediately to the Director General that the Industrial Council was unable to succeed in settling the dispute in terms of the provisions of the Labour Relations Act.

In addition the parties shall jointly notify the Industrial Council that they do not intend appearing before the said Council.

According to the respondent, the parties must meet after the declaration of a dispute by one of the parties and after the other party has within seven days acknowledged receipt of the written statement of the dispute in terms of clause 9.1 of the recognition agreement as it is only through such meeting that the parties could reach deadlock (as contemplated by clause 9.2 of the recognition agreement). Only once the parties have reached deadlock, can the dispute, according to the respondent, be referred to the CCMA in terms of clause 9.2 of the recognition agreement.

The respondent conceded that clause 9 of the recognition agreement does not expressly provide for a dispute meeting between the parties after the declaration of a dispute but submitted that this dispute meeting is implied by the conduct and past practice of the parties in that the parties have always convened a dispute meeting to discuss and attempt to resolve the issues in dispute following the declaration of a dispute by one of the parties in terms of section 9 of the recognition agreement.

SACCAWU did not dispute the fact that it was the past conduct and practise that the parties have always convened a dispute meeting to discuss and attempt to resolve the issues in dispute following the declaration of a dispute by one of the parties in terms of clause 9 of the recognition agreement. However, SACCAWU averred that this only happened if one of the parties have acknowledged receipt of the declaration of the dispute within seven days and have agreed to a meeting as contemplated in clause 9 of the recognition agreement.6

It is common cause that the parties commenced negotiations on 15 February 2011 in respect of wages and other conditions of employment. According to the respondent, SACCAWU also made other demands during the negotiations that did not refer to wages and substantive terms and conditions of employment of employees within the bargaining unit as defined in terms of the recognition agreement. According to the respondent, these other demands cannot constitute part of a dispute that was being declared in terms of clause 9 of the recognition agreement. SACCAWU disputed this and argued that negotiations may also take place outside these annual negotiations on other matters of mutual interest should both parties agree that it is necessary to do so. According to SACCAWU the exclusion of other matters of mutual interest from these annual negotiations is not automatic. These ‘other mutual interest demands’ include that the respondent stop with immediate effect after 2011 to use labour brokers; that the amendment of the recognition agreement be finalised before the end of April 2011 and that the respondent commit itself to centralised bargaining once approached by SACCAWU. These demands further lack, according to the respondent clarity. Moreover, it was contended that certain of the demands do not relate to employees employed in the bargaining unit as defined in the recognition agreement and therefore do not relate

to the terms and conditions of employment of employees to whom the recognition agreement applies. SACCAWU disputed this.

On 14 March 2011, SACCAWU declared a dispute with the respondent over the inability to reach agreement over wages and conditions of employment and the amendment of the recognition agreement. It was proposed that the respondent meet on 15 March 2011 for a dispute meeting. The respondent argued that SACCAWU by declaring the dispute in the letter dated 14 March 2011, was aware of the fact that it was an implied term of clause 9 of the recognition agreement that once a party has declared a dispute with the other party and the other party has acknowledged the dispute within seven days as required in terms of clause 9.1 of the recognition agreement, the parties will meet for a dispute meeting for the purposes of discussing and attempting to resolve the issues in dispute. It was further submitted on behalf of the respondent that the declaration of the dispute in the letter dated 14 March

2011 was, in any event, defective. The respondent informed SACCAWU of this view in a letter dated 21 March 2011. SACCAWU was, inter alia, informed that because of SACCAWU’s non-compliance with the recognition agreement, no proper dispute meeting can be convened as contemplated by the recognition agreement. SACCAWU was further informed that any referral to the CCMA arising therefrom will be unlawful and defective consequent upon SACCAWU’s failure to comply with the recognition agreement. SACCAWU was lastly

requested to remedy its non-compliance with the recognition agreement

SACCAWU responded to this letter and alleged that the respondent’s response to the letter dated 14 March 2011 which requires a party to acknowledge a written statement of dispute within seven days of receipt, was received outside of the time periods envisaged in terms of clause 9 of the recognition agreement. SACCAWU therefore argued that, because the respondent had not acknowledged receipt of the declaration of a dispute within seven days as required in terms of clause 9 of the recognition agreement, it had no alternative but to refer the dispute relating to matters of mutual interest to the CCMA.

Notwithstanding the fact that SACCAWU was of the view that the respondents did not acknowledge the dispute within the required seven days, SACCAWU nonetheless proceeded in a letter dated 25 March 2011 to rectify the defects associated with its failure to set out the issues giving rise to the dispute together with the required settlement as required in terms of clause 9 of the recognition agreement in respect of the demands made in terms of the recognition agreement. SACCAWU, however, also persisted

with the demands that do not, according to the respondent, relate to wages and terms and conditions of employment. According to the respondent, these disputes do not fall within the ambit of the recognition agreement and cannot constitute part of a dispute that is being declared in terms of clause 9 of the recognition agreement.

In a letter dated 30 March 2011, the respondent’s attorneys accepted that in respect of those demands which relate to terms and contains of employment of employees in the applicable bargaining unit, that the letter dated 25 March 2011 now contained sufficient clarity with regards to the issues giving rise to the dispute together with the required settlement proposals as required in terms of clause 9 of the recognition agreement. It is further recorded that in respect of those demands that do fall with the ambit of the recognition agreement, that the respondent now accepted that the letter dated 25 March 2011 rectified the defects in the purported declaration of a dispute dated 14 March 2011.

According to the respondent, the letter dated 25 March 2011 now constituted a proper declaration of a dispute which the respondent acknowledged within the seven days of receipt thereof as required by the recognition agreement. The letter further states that in light of the fact that the proper declaration of the dispute in terms of clause 9 of the recognition agreement only occurred on 25 March 2011 (in terms of which the defects of the declaration of a dispute dated 14 March was rectified), the referral of the dispute to the CCMA was therefore premature and unlawful in that it was made before the dispute resolution procedures in terms

of the recognition agreement had been followed. The respondent declared its willingness to meet with SACCAWU for purposes of

conducting a dispute meeting in relation to those disputes that fall within the ambit of the recognition agreement. The respondent

requested SACCAWU to withdraw the dispute that was, according to the respondent, prematurely referred to the CCMA failing which the respondent reserved the right to interdict and set aside such premature and unlawful referral.

[34] In brief, it was therefore the respondent’s case that the declaration of the dispute on 14 March 2011 was defective and that it was therefore not required to acknowledge receipt of the dispute within seven days as required in terms of clause 9.1 of the recognition agreement. The defects were, however, cured by SACCAWU in the letter dated 25 March 2011. The respondent acknowledged receipt of the declaration of the dispute within seven days of receipt of the letter dated 25 March 2011. Because the respondent regarded the letter dated 25 March as a proper declaration of the dispute, it requested a dispute meeting with SACCAWU. This dispute meeting must be held according to the respondent as the parties can only reach deadlock during this meeting as required in terms of clause 9.2 of the recognition agreement. It is only once deadlock has been reached that the parties may refer a dispute to the CCMA. Although the respondent acknowledged that SACCAWU properly declared a dispute on 25 March 2011 in relation to the demands in terms of the recognition agreement, it persisted with its contention that that certain demands did not properly related to the terms and conditions of employment of employees in the applicable bargaining unit and hence they do not fall within the scope and ambit of the recognition agreement.

[35] The applicant however declared a dispute with the respondent on 14 March 2011 and referred the dispute to the CCMA on 25 March 2011.

[36] It was therefore submitted that, prior to any dispute resolution meeting, firstly, that the referral of the dispute to the CCMA was in contravention of the dispute resolution process provided for in the agreement. It was argued that Clause 6.1 of the agreement obliged the parties to meet and negotiate matters of mutual interest relating to terms and conditions of employment of employees falling within the bargaining unit. Matters of mutual interest which do not concern terms and conditions of employment were to take place outside the annual wage negotiations. Secondly, the applicant had failed to declare a dispute, negotiate and reach deadlock with the respondent in respect of the dispute in accordance with the provisions of clause 9 of the agreement prior to referring the dispute to the CCMA for conciliation.

[37] It is common cause that SACCAWU referred a dispute to the CCMA on the same day of the second declaration namely 25 March 2011. In light of the aforegoing, the respondent submitted that the wage dispute that was referred to the CCMA was in contravention with the recognition agreement and therefore premature and unlawful: Firstly, the respondent was not afforded an opportunity to acknowledge the written statement of the dispute with the required seven days of receipt thereof. Secondly, the parties have not met in accordance with past practice in an attempt to discuss and resolve the dispute as contemplated by clause 9.2 of the recognition agreement. Thirdly, clause 9.2 requires that the parties reach a deadlock (which deadlock can only be reached during the dispute meeting) before a dispute is referred to the CCMA.

[38] SACCAWU denied that such a meeting was necessary and stated in a letter dated 4 April 2011 that ‘there is nowhere this clause speaks of meeting’. (sic)

[39] As a result of SACCAWU’s refusal to withdraw the referral, the respondent declared a dispute with SACCAWU in terms of clause 9 of the recognition agreement in relation to the interpretation and application of the recognition agreement. This dispute was referred to the CCMA on 5 April 2011.

Evaluation of the arguments

[40] It is clear from the provisions of the recognition agreement that it is required that the steps set out in clause 9 of this agreement be followed prior to referring any dispute in accordance with the statutory conciliation mechanisms and prior to industrial action being embarked upon by either party. Because SACCAWU did not follow these procedures, it is in breach of the agreement. It is clear from the papers that a proper dispute (in respect of those matters that do fall within the ambit of the recognition agreement) was only declared on 25 March 2011. The respondent acknowledged the written statement of the dispute within seven days of receipt. In terms of past practice, the parties therefore had to meet and discuss the issues in dispute and attempt to resolve the dispute. In the present case, the applicant denied the respondent the opportunity to acknowledge the written statement within seven days of receipt by referring the dispute to the CCMA on the same day (25 March 2011) the dispute was declared. As a result no dispute meeting was held as impliedly required in terms of Clause 9.2 of the recognition agreement and in accordance with past practice. Consequently, a deadlock has not been declared as required in terms of Clause 9.2 of the recognition agreement. As this was not done, the referral to the CCMA was premature and in breach of the recognition agreement. The respondent has therefore made out a case for the relief sought in the notice of motion, namely, that the applicant must be interdicted and restrained from referring or pursuing a dispute in the CCMA concerning the issues referred to by the applicant in its letter dated 25 March 2011 to Edward Nathan Sonnenbergs until such time as the applicant has complied with the provisions of the recognition agreement.

Interpretation of the recognition agreement

[41] It is accepted that this Court does not have the necessary jurisdiction to interpret a collective agreement as this is a matter

that falls witin the ambit of the CCMA’s powers. See in this regard Denel Informatics Staff Association and Another v Denel Informatics (Pty) Ltd,7 where it was held:

‘[14] Once again, it is clear that the Labour Court does not acquire jurisdiction in terms of the Act to adjudicate a dispute concerning

the interpretation or the application of a collective agreement as such dispute must be resolved by way of arbitration. It is thus not a matter to be determined by the Labour Court.’

….

‘. . . the Labour Court has no jurisdiction to entertain the alleged dispute about the application or the interpretation of the recognition agreement and such dispute must be dealt with in terms of the provisions contained in s 24 of the Act. . .’.

[42] In so far as it was necessary to interpret the recognition agreement, I have, however, done so in light of the fact that the interpretation of the collective (recognition) agreement is ancillary to the main issue falling within the jurisdiction of this Court. As already pointed out, the dispute about the interpretation of the recognition agreement has been referred to the CCMA. The Labour Court accordingly has the power to interpret collective agreements in motion proceedings where such an interpretation is incidental to the issue falling within its jurisdiction. The issue before this Court was whether SACCAWU has complied with the provisions of the recognition agreement and in deciding this issue, the Court was required to interpret the recognition agreement. See in this regard: Metro Bus (Pty) Ltd v SAMWUobo Members8 where the Court similarly pointed out that the Labour Court cannot exercise its inherent jurisdiction to interpret a collective agreement as this power is assigned to the CCMA in terms of the LRA. The Court, however, confirmed that the Labour Court may interpret collective

agreements when the determination of their meaning is incidental to disputes falling within its jurisdiction. See also Johannesburg City Parks v Mphahlani NO and Others9 where the Court followed a similar approach:

‘There are a number of areas in the LRA with references to disputes or proceedings that are about the interpretation or application of collective agreements, particularly, in provisions that deal with dispute resolutions. Some of the sections of the LRA which contain such references are, 22 and 24. In all of those sections, the references to disputes about the interpretation or application of a collective agreement are references to the main disputes sought to be resolved and not to issues that need to or may need to be answered in order to resolve the main dispute. Let me make an example to illustrate the distinction I seek to draw between a dispute and an issue in a dispute. One may have a situation where an employee is dismissed for operational requirements and that dismissal is challenged as unfair because it is said that in terms of a certain collective agreement the employer was supposed to follow a certain procedure before dismissing the employee but did not follow such procedure. In such a case, in determining whether the dismissal was fair or unfair, the Labour Court would have to determine whether the relevant provisions of the collective agreement were applicable to that particular dismissal. The employer may argue that, although the collective agreement is binding on the parties, the particular clause did not apply to a particular dismissal. This means that the Labour Court has to interpret and apply the collective agreement in order to resolve the dispute concerning the fairness or otherwise of the dismissal for operational requirements. So, the real dispute is about the fairness or otherwise of the dismissal and the issue of whether certain clauses of the collective agreement are applicable to the dismissal dispute is an issue necessary to be decided in order to resolve the real dispute.’

[43] The Labour Appeal Court, in Minister of Safety and Security v Safety and Security Sectoral Bargaining Council and Others,10 also confirmed the approach that a Court may interpret a collective agreement if such interpretation of the agreement is ancillary to the resolution of that dispute.

[44] The application for leave to appeal relies upon the principles established in County Fair Foods.11 As already pointed out, the applicant is of the view that this decision is ‘decisive of the dispute’. The respondent is of the view that the applicant’s total reliance on the County Fair decision is misplaced in that it is not decisive and does not, in any event, bear on the determination of the dispute in this case.

[45] In County Fair, the employer launched an urgent application to interdict a contemplated strike and contended that the strike was unprotected in

terms of the provisions of section 65(1)(a) of the LRA. The employer contended that it and the union were parties to a recognition

agreement which constituted a collective agreement which prohibited a strike in respect of the issue in dispute. The employer argued that there was a procedural prohibition against striking until certain provisions of the recognition agreement had been met and that this prohibition was in substance no different from a substantive prohibition in a collective agreement against an issue in dispute being the subject matter of a strike. This argument was rejected by the Labour Appeal Court.

[46] I am in agreement with the submission that this judgment is not decisive of the matter. In the present matter, the issue was not whether SACCAWU could be interdicted from striking because its intended strike was in breach of the provisions of section 65 of the LRA. The application that served before this Court did not concern an application to interdict a strike. The respondent sought an order requiring SACCAWU to comply with the provisions of the recognition agreement which requires that, before the dispute may be referred to conciliation by the CCMA, certain steps must be taken in an effort to resolve the underlying dispute. The sole issue for determination before the Court was whether the referral of the dispute to the CCMA was premature or not. As pointed out, the respondent was of the view that such referral was premature and that the provisions of the recognition agreement had to be observed. This Court was not (as it was in the County Fair case) asked for an order interdicting the strike. The Court was likewise not asked to consider the provisions of section 65 of the LRA. I am therefore in agreement that the ratio of the County Fair case therefore has no bearing on the present matter at all. There is accordingly no prospect that the Labour Appeal Court will find in favour of the applicant.

[47] The application for leave to appeal is therefore dismissed. I can find no reason why costs should not follow the result.

_____________

A.C Basson, J

Judge of the Labour Court

Appearances:

For the Applicant : Adv FA Boda

Instructed by : Docrat Attorneys

For the Respondent : Advocate AIS REDDING SC

Instructed by : Edward Nathan Sonnenbergs Attorneys

1(2001) 22 ILJ 1103 (LAC); [2001] 5 BLLR 494 (LAC).

2The facts pertaining to the second application appears from the founding and answering affidavits in the application for condonation for the late filing of the application for leave to appeal. These facts are relevant in respect of the application for condonation.

3 1962 (4) SA 531 (A) at 532C-D.

4(1994) 15 ILJ 610 (LAC) at 613E.

5(1999) 20 ILJ 2564 (LAC) at para 11.

6SACCAWU’s stance on this matter was conveyed to the respondent in a letter dated 4 April 2011.

7(1999) 20 ILJ 137 (LC) at para 14.

8 [2009] 9 BLLR 905 (LC) at paras 15 - 19.

9 [2010] 6 BLLR 585 (LAC) at para 14.

10 [2010] 6 BLLR 594 (LAC) at paras 10 - 11.

11Above n 2.