UASA - The Union and Another v BHP Billiton Energy Coal South Africa and Another (JS1082/09) [2013] ZALCJHB 170 (1 August 2013)

Not Reportable

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

JUDGMENT

Case no: JS 1082/09

In the matter between:

UASA-THE UNION First Applicant

ASSOCIATION OF MINEWORKERS

AND CONSTRUCTION UNION Second Applicant and

BHP BILLITON ENERGY COAL

SOUTH AFRICA First Respondent

NATIONAL UNION OF

MINEWORKERS Second Respondent

Heard: 29 July & 01 August 2013

Delivered: 01 August 2013

Summary: (Trial-application for postponement following notice of intention to amend – distinct new legal and factual basis for claim introduced by amendment – amendment granted).

LAGRANGE, J

This matter was enrolled for trial on Monday 29 July 2013. Before proceedings commenced, it was agreed with the parties that the matter would commence on Thursday 1 August 2013, to permit further discovery of documents, in particular contracts of employment of some of the applicants’ members.

I am advised that discovery of approximately 600 such contracts has given rise to a belief on the part of the applicants that most of their members are not employees of the first respondent.

The applicant is attacking the legal validity of an agency shop agreement concluded between the second and first respondents. In the applicants’ original statement of the case, no averments were made about the true identity of the applicants’ members, employer or employers. As set out in the original statement of claim, the legal basis for arguing that the agency shop agreement is invalid is that the agency shop could only be lawful on the basis of a ballot conducted at each of the distinct operations of the first respondent, which the applicants contended constituted distinct workplaces. The first respondent’s defence, in turn was that, all the operations of the first respondent formed part of a single integrated operation and could not be regarded as distinct workplaces and that no ballot was necessary to determine support for the agency shop agreement. It also pleaded that all employees at the different operations are employees of the first respondent and not of any of its subsidiaries.

Following discovery of the employment contracts mentioned the applicants filed a notice of Amendment on 30 July 2013 in which it seeks to replace paragraph 15 of its statement of case in its entirety. The original paragraph read:

"The agency shop agreement, by contemplating that the polling of employee support will be in BECSA taken as a whole, constitutes a breach of the act."

The proposed amending paragraph would read:

"15. The agency shop agreement is unlawful, inter-alia, by reason of the fact that it constitutes a breach of section 25 of the LRA in that:

15.1 The first respondent was not the employer of the employees employed at the various operations set out in paragraph 8 hear above as at 7 July 2009.

15.2 The agency shop agreement contemplated that polling of employee support in respect of BECSA taken as a whole, i.e, treating the various operations as one workplace, as opposed to each operation being an independent workplace.

15.3 With the exception of Central Services and I- Campus all the employees at the remaining various operations stipulated in paragraph 8 here in above were employed by different legal entities which owned the various operations/businesses.

15.4 An employer’s workplace-as defined in the LRA-refers to a single workplace and where an organisation consists of more than one legal entity, an agreement by one entity to enter into an agency shop agreement cannot be enforced into forced against another entity."

It was argued that the amendment does not introduce a new cause of action but simply additional facts which support the applicants’

case that the agency shop agreement was implemented contrary to section 25 of the LRA. However, the additional facts raised impugn

the validity of the agency shop agreement on a different basis than the original statement which was predicated on an argument that the respondent could not implement the agreement at group level because it did not constitute a single workplace. In the broad sense, the amendment which the applicant seeks to introduce also concerns the validity of the agency shop agreement, but on an entirely distinct basis which it had not relied on before, namely the identity of the true employer of the applicants’ members in the various operations of the first respondent. In my view, this raises a distinct legal basis for contesting the validity of the agency shop agreement and requires the respondents to defend the validity of the agreement on two fronts.

In the circumstances, the respondents ought to be given an opportunity to consider whether to oppose the amendment or not. I am aware that it was only on the discovery of the documents which the applicants had been requesting that they saw fit to introduce this amendment, but I believe that they could have brought matters to a head with an application to compel discovery, coupled if necessary with an application to postpone proceedings, before this week.

Order

Accordingly, the matter is postponed sine die to permit the respondents time to respond to the notice of amendment.

The applicants must pay the wasted costs of the respondent occasioned by the postponement for today and tomorrow.

In the event that the amendment is opposed, and the applicant applies for leave to grant the amendment, the registrar is directed

to enrol the application on the opposed roll at the earliest opportunity.

In the event the amendment is not opposed, the registrar is directed to re-enroll the matter for trial at the earliest opportunity.

_______

R LAGRANGE, J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: L. Halgryn instructed by Bester & Rhoodie Attorneys

FIRST RESPONDENT: A. Myburgh instructed by Edward Nathan Sonnenbergs

SECOND RESPONDENT: Hans Van der Riet instructed by Cheadle Thompson Haysom Attorneys