South Deep Gold Mine, a division of Gold Fields Limited v National Union of Metalworkers of South Africa and Others (J1188/21) [2021] ZALCJHB 362; (2022) 43 ILJ 941 (LC) (15 October 2021)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

CASE NO: J1188/21

In the matter between:

SOUTH DEEP GOLD MINE, A DIVISION

OF GOLD FIELDS LIMITED First Applicant

and

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA First Respondent

NATIONAL UNION OF MINEWORKERS Second Respondent

UASA – THE UNION Third Respondent

CCMA Fourth Respondent

COMMISSIONER M NYAMA N.O Fifth Respondent

Date of hearing: 14 October 2021

Date of judgment: 15 October 2021

JUDGMENT

VAN NIEKERK J

[1] The applicant approaches the Court on an urgent basis, seeking an order staying the enforcement of an arbitration award issued by the fourth respondent (the arbitrator) on 27 September 2021. In the alternative, the applicant seeks to be exempted from the requirement to furnish security in terms of section 145 (7) of the LRA; further alternatively, that the court determines the amount of security to be provided. The orders sought in relation to security are premised on the proposition that the provision of security has the consequence that the enforcement of the relevant award under review is automatically suspended.

[2] The award is one in which the arbitrator decided that the first respondent (NUMSA) should be granted organisational rights in terms of sections 12 (access to the workplace) and 13 (deduction of trade union subscriptions) of the LRA, with effect from 15 October 2021. The applicant and the second respondent (NUM) have both filed applications to review and set aside the award. These applications will have to be consolidated in due course but the dual review is of no consequence in these proceedings.

[3] In relation to security, the representative of the first respondent (NUMSA) submitted that the dispute between the parties was not of such a nature that the provision of security was required, with the consequence that there can be no automatic stay of the award.

[4] I deal first with the issue of security. My understanding of section 145 (7) is that it requires an applicant in a review application to provide security in certain specified amounts, with the purpose of dissuading losing parties in arbitration hearings from filing frivolous reviews. The quantum is prescribed by subsection (8) which requires in the case of an order of reinstatement or re-employment, the provision of security equivalent to 24 months’ remuneration; in the case of an order of compensation, security equivalent to the amount of compensation awarded. In the present instance, neither reinstatement or compensation was the remedy afforded by the arbitrator. Given the nature of the dispute, his function was to grant or refuse to grant the organisational rights sought by NUMSA. In these circumstances, I fail to appreciate how it can be said that any applicant in any application to review and set aside an award that does not contemplate either reinstatement, re-employment or the payment of compensation, is required to provide security when filing the review application.

[5] But it does not necessarily follow that an arbitration award cannot be stayed in circumstances where the requirement to provide security does not apply. It remains open to this court, as section 145 (3) of the LRA provides, to stay the enforcement of an award pending its decision in any review application. The discretion to stay an award is one that must be exercised judicially. In Robar (Pty) Ltd (Tube Division) v Joubert [2009] 8 BLLR 785 (LC), this court noted that at the heart of the enquiry, is whether the applicant has shown a well-grounded apprehension of execution taking place and of injustice being done to the applicant by way of irreparable harm being caused if execution were not to be suspended. In this sense, the approach to be adopted resonates with that applicable in applications for interim relief. The test to be applied is one in which the court must have regard to all relevant factors, including the prospects of success in the review application and the prospect and degree of prejudice to the parties respectively should the implementation of the award under review not be stayed.

[6] In the present instance, the applicant submits that the prospects of review are strong. In particular, the applicant submits that the arbitrator misdirected himself by having regard to the evidence that was not before him. The applicant refers in particular to a threshold for organisational rights which the arbitrator finds was established through the Chamber of Mines at 10%. It is common cause that no evidence was led of any such yardstick. Further, the applicant avers that the organisational history at the mine, in an essential element of an enquiry into a claim for organisational rights, was ignored and that this constitutes a reviewable irregularity. The applicant further points to evidence concerning an agency shop agreement in place at the mine and avers that the arbitrator failed to take the agreement and its effect into account. NUMSA, on the other hand, submits that the test for review is a stringent one and that this court must necessarily take into account the outcomes-based nature of the test and find on the papers that the applicant’s prospects of success in the review application are limited.

[7] The court is regrettably not in a position, in the absence of a record of the proceedings under review, to assess the strength of the applicant’s submissions regarding the reviewability of the arbitration award, even for the limited purposes of the assessment of the applicant’s prospects of success. I must necessarily bear in mind that it is not incumbent on the applicant in the present instance to satisfy the review test – the applicant must simply demonstrate that on the papers as they exist, there is some prima facie the prospect that the review will succeed. After a perusal of the award, I am satisfied that the applicant has met the threshold

and that should it submissions regarding the misdirections it alleges on the part of the arbitrator be sustained by reference to the record of the proceedings under review, that the award would stand to be reviewed.

[8] In regard to the applicant’s apprehension of irreparable harm, the applicant states that it has a real apprehension that should NUMSA be afforded organisational rights, and in particular access to the mine’s premises, what is referred to as a well- established in constructive collective bargaining environment that currently exists at the mine will be seriously jeopardised. In my view, the applicant’s apprehension of irreparable harm is well-founded. Concerns regarding the stability of the industrial relations environment have been expressed by applicant’s employee relations manager, and also by the NUM. Given the prior conduct of the persons who were previously leaders of the NUM branch committee and who now drives NUMSA’s efforts to secure organisational rights at the mine, these concerns are not unfounded

[9] In my view, the determinative factor is the relative prejudice to the parties should the order sought by the applicant be granted. The applicant correctly observes that should the application be refused; it would be required to afford organisational rights to NUMSA which could not be easily retracted should it succeed in the review application. In essence, once the award becomes operative the purpose of the review application may largely be defeated. Conversely, if the application were to be granted, NUMSA would not enjoy statutory organisational rights, but it would not be precluded from collecting membership subscriptions and levies directly from its members (as it has presumably done since it commenced recruitment at the applicant mine), nor would it be prohibited from recruiting members and meeting with them at locations outside of the mine’s premises. In this regard, the prosecution of the organisational rights dispute by NUMSA is not relevant – the organisational rights dispute was referred in September 2019 and the arbitration concluded some two years later. NUMSA has hardly pursued its attempts to obtain statutory organisational rights with any degree of diligence or vigor and it can hardly be heard now to complain that any further delay would cause it irredeemable prejudice.

[10] Having regard to all of the relevant factors it seems to me that the applicant has met the threshold for intervention, and that the implementation of the award ought properly to be stayed, pending the outcome of the review application.

[11] Finally, in regard to costs, I indicated to the parties at the hearing that I did not intend to make any order as to costs. I did so on the basis that there is an existing collective bargaining relationship between the applicant and the second and third respondents, and that the prospect remains of recognition in future, in one form or another, of NUMSA as a representative of at least some of the applicant’s employees. In these circumstances, an order for costs has the potential to prejudice what is an already fragile environment at the applicant’s mine and in these circumstances, the requirements of the law and fairness dictate that each party ought to pay its own costs.

I make the following order:

1. The implementation of the arbitration award issued by the fourth respondent on 27 September 2021 under case number GAJB 21643 – 19 is stayed, pending the outcome of the applications by the applicant and second respondent to review and set aside the award.

André van Niekerk

Judge of the Labour Court

APPEARANCES

For the applicant: Adv

H Viljoen, instructed by Cowen Harper Madikizela

For the first respondent: Union official

For the second respondent: Union official