---

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT DURBAN

CASE NO: D 318/98

In the matter between:

T MTHIMKHULU Applicant

and

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

(MS A C E REYNOLDS N.O) First Respondent

IKHWEZI TRANSPORT Second Respondent

JUDGMENT

BASSON, J:

1. This is the review of an arbitration award in terms of section 145 of the Labour Relations Act 66 of 1995 (“the Act”). The applicant, Mr T Mthimkhulu, seeks to review a decision made by a commissioner of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), Ms A C E Reynolds, in terms of which she held that the CCMA does not have jurisdiction to entertain the unfair dismissal dispute in casu.

2. It appears that the dispute in casu relates to the dismissal for misconduct of the applicant by the second respondent, Ikhwezi Transport (“the employer”).

3. The applicant's grounds for review are set out in the founding affidavit as follows.

4. First, “[t]hat the first respondent acted ultra vires and in contravention of section 136(1) of the Labour Relations Act 66 of 1995 (the Act)."

5. In essence, this contention is founded on the basis that the commissioner concerned does not have the competence to decide on his or her own jurisdiction.

6. However, quite the contrary is the case, as it is incumbent upon a commissioner to ascertain whether he or she has jurisdiction to deal with a matter that is being referred to the CCMA.

7. It follows that a commissioner who makes a finding in regard to jurisdiction does not act ultra vires.

8. The second ground of review raised by the applicant is that, “[t]he first respondent committed a gross irregularity by ruling that the CCMA did not have jurisdiction, when the CCMA had already accepted jurisdiction."

9. This contention can also not be upheld. The mere fact that a commissioner might usurp jurisdiction does not clothe the CCMA with jurisdiction as it would amount to an unlawful act, which cannot have the effect of clothing the CCMA with jurisdiction.

10. The question whether the CCMA has jurisdiction is a fact to be objectively ascertained. After all, the CCMA commissioners can not accept jurisdiction in contravention of the provisions of the Act.

11. Third, the applicant alleged that the first respondent erred in finding that there was a collective agreement and a bargaining council when, in fact, there were none.

12. The first respondent did not make any finding in regard to the existence of a bargaining council.

13. The first respondent relied on Annexure “A” (from pages 52 and further of the papers) to conclude that this document did, indeed, constitute a “collective agreement” in terms of the Act. Note that Appendix “C” thereof (at page 71 of the papers) deals with dispute resolution procedures.

14. It is common cause that in terms of these dispute resolution procedures a dispute for dismissal for misconduct must be referred to private arbitration and not to the CCMA.

15. The definition of a “collective agreement” is found in section 213 of the Act, which states that, "[a] collective agreement means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions on the one hand and, on the other hand,

(a) One or more employers;

3/1225 (b) One or more registered employers’ organisations; or

(c) One or more employers and/or one or more registered employers’ organisations".

16. It would appear that the applicant was a member of one of the trade unions that was a signatory to this agreement or written document (Annexure “A”, contained at pages 52 and further of the papers - referred to in paragraph [13] above).

17.Although the applicant may have become a member of the union after the said written agreement was concluded, this fact will make no difference to the binding nature thereof ( as will appear more fully below at paragraph [22] and [23]).

18The second respondent, or at least the holding company thereof, appears to have been a co-signatory to this document, which was signed on behalf of an employers’ organisation. This employers’ organisation was not registered at the time, but became registered at a time when the applicant was a member of the trade union concerned.

19. This means that, at least at a certain stage when the applicant was a member of the trade union concerned, this document constituted a “collective agreement” as between “a registered trade union and one or more employers or one or more registered employers’ organisations”, as the case may be (see the definition of a “collective agreement” discussed at paragraph [15] above).

20. Further, this collective agreement deals with “matters of mutual interest” or conditions of employment” as is required in terms of the definition of a “collective agreement” (in terms of section 213 of the Act quoted above at paragraph [15]).

21. In the event, the first respondent (the commissioner of the CCMA) was fully justified in concluding that the said document (Annexure “A” - paragraph [13] above) constituted a collective agreement.

22. Further, this collective agreement had its own dispute resolution procedure, that is, private arbitration, prescribed in the case a dispute such as the present dispute (at paragraph [14] above).

23. Section 23(2) of the Act therefore applies in casu. This subsection reads as follows:

"A collective agreement binds for the whole period of the collective agreement. Every person bound in terms of sub-section (1)(c) who was a member at the time it became binding or who becomes a member after it became binding, whether or not that person continues to be a member of the registered trade union or registered employers’ organisation for the duration of the collective agreement."

24. The mere fact that the applicant (the employee) may not at present be a member of the registered trade union who had signed the binding collective agreement in casu (see paragraph [16] above) therefore does not mean that the applicant is not bound by the terms of the collective agreement. The second respondent (the employer) is likewise bound to the terms of this collective agreement.

25. In the event, the misconduct dispute in casu must be referred to private arbitration in terms of the collective agreement and not to the CCMA in terms of the Act.

26. Collective agreements enjoy precedence over the provisions of the Act in this regard. The Act prefers collective agreements concluded on a voluntary basis by the parties concerned, in keeping with the objectives of the Act. Sub sections (1)(c)(i) and (d)(i) of the Act contains the objectives, "[t]o provide a framework within which employees and the trade unions, employers and employers’ organisations can collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest and formulate industrial policy” and “to promote orderly collective bargaining."

27. In the event, precedence is given to the products of collective bargaining and, as a rule, the Labour Court will uphold the products of collective bargaining, save for instances where the collective bargaining agreement itself is contra bonos mores and therefore void on such basis.

28. It is also clear that section 24 of the Act has no bearing on the present matter as this section deals with the situation where disputes are declared about collective agreements and where the section states (at sub-section (3)) that,"[i]f there is a dispute about the interpretation or application of a collective agreement such dispute must be dealt with in terms of the procedures provided for in the collective agreement, failing which the dispute must be dealt with in terms of the provisions of section 24" (and be referred to the CCMA).

29. In the event, the commissioner concerned acted fully within her competence as a commissioner of the CCMA when she made the decision in regard to the absence of jurisdiction.

30. The decision was justified on the basis that there was a collective agreement which provided for dispute resolution procedures in terms of which misconduct disputes (such as the present dispute) must be dealt with. The CCMA accordingly had no jurisdiction to deal with such dispute.

31. In the event, the application for review is dismissed with costs.

Basson J

Date of hearing: 29 October 1998

Date of judgment: ex tempore (edited version)

On behalf of the applicant: Mr Ngubu representative of New Face Union

On behalf of the respondent: Adv M Bingham instructed by DeNeys Reitz Attorneys

This judgment is available on the internet at website: http://www.law.wits.ac.za

/

BASSON J: Yes, I have taken into account what you have both said to me, and the application is dismissed with costs.

---------------------

---