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  • REPUBLIC OF SOUTH AFRICA

    Reportable

    IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG)

    Case no: JA46/2012

    In the matter between:

    SOUTH AFRICAN LOCAL Appellant

    GOVERNMENT ASSOCIAITON

    and

    INDEPENDENT MUNICIPAL AND First Respondent

    ALLIED TRADE UNION

    SOUTH AFRICAN MUNICIPAL WORKERS Second Respondent

    UNION

    SOUTH AFRICAN LOCAL GOVERNMENT Third Respondent

    BARGAINING COUNCIL

    Heard: 20 AUGUST 2013

    Delivered: 04 March 2014

    Summary: Collective agreement- dispute relating to its implementation date-

    no requirement for signature by third respondent constitution- practice and

    custom- principle that practice or custom is well-entrenched- practice that

    agreement binding when signed by all parties- no agreement reached on 20

    April 2010 without it being signed-

  • 2

    Rectification- principle that party seeking rectification must prove that contract

    does not reflect the true intention of the parties restated- no rectification can

    take place as there was no agreement reached by parties. Appeal upheld-

    Court- a quos judgment set aside.

    CORAM: WAGLAY JP, et C J MUSI et MOKGOATLHENG AJJA

    JUDGMENT

    C J MUSI AJA

    [1] This appeal, which was brought with the leave of the court a quo, is against

    the judgment of the Labour Court (Basson J).

    [2] The South African Municipal Workers Union (SAMWU) and the Independent

    Municipal and Allied Trade Union (IMATU) sought the following relief in the

    court a quo:

    i) An order declaring that the 20 April Wage Curve Agreement constitutes a

    binding collective agreement between IMATU, SAMWU and SALGA.

    ii) Alternatively to (i) above, rectification of the wage Curve Agreement signed

    on 21 April 2010 by deleting clause 8.2 thereof and inserting clauses 8.2 and

    8.3 of the 20 April Wage Curve Collective Agreement.

    iii) If the order in (i) is granted, then an order is also sought declaring that the

    Wage Curve Agreement signed on 21 April 2010 does not constitute a valid

    agreement.

    [3] SAMWU approached the court a quo on an urgent basis for an order declaring

    the purported agreement signed on 21 April 2010 as void ab initio. The order

    was sought in order to prevent the third respondent (The South African Local

    Government Bargaining Council (SALGBC) from implementing the purported

    Wage Curve Collection Agreement signed on 21 April 2010, until the dispute

    relating to the said agreement could be resolved. Due to irreconcilable

    factual disputes, that could not be resolved on the papers, the matter was

  • 3

    referred to oral evidence. After a protracted trial, the court a quo made the

    following order:

    1. The categorisation and Job Evaluation Wage Curves (sic) Collective

    Agreement signed on 21 April 2010 by the first applicant and the first and

    second respondents is rectified by deleting clause 8.2 thereof and inserting

    clauses 8.2 and 8.3 of the categorisation of Job Evaluation Wage Curves (sic)

    Collective Agreement on pages 42 53 of Bundle C, subject to the

    amendment to clause 7.2.3 agreed to just before the signing ceremony.

    2. The first respondent is ordered to pay the costs of the applicants and

    the second respondent including the costs of two council (sic)

    [4] Mr Brassey, on behalf of the appellants, did not have any quarrel with the

    court a quos analysis of the primary facts. The facts can therefore be

    summarised as follows. In 2003, IMATU and SAMWU (the Unions) and the

    South African Local Government Association (SALGA) concluded a Job

    Evaluation Collective Agreement. The parties, thereafter, were engaged in

    negotiations to conclude a Wage Curve Collective Agreement to give effect to

    the Job Evaluation Collective Agreement. Agreement could not be reached.

    On 27 January 2009, SAMWU referred a dispute to the third respondent for

    conciliation. It demanded that a collective agreement be concluded to create a

    wage curve for all the different job categories in municipalities.

    [5] The dispute could not be resolved during the conciliation process. On 26

    March 2010, SAMWU issued a strike notice. On 12 April 2010, its members

    embarked on a strike in furtherance of its demand for a Wage Curve

    Agreement and the conclusion of a new Disciplinary Code Agreement.

    [6] During the strike, the parties resumed negotiations. During bilateral

    engagements between SALGA and SAMWU, it was agreed that the wage

    curves in the local government sector would be based on the 50th percentile

    market position as determined by Delloite & Touche in its survey of

    September 2009. Draft collective agreements relating to the wage curves and

    disciplinary code were written.

  • 4

    [7] The parties met formally, under the auspices of the third respondent on 19

    and 20 April 2010, in order to conclude collective agreements relating to the

    wage curves and disciplinary code. They met as a Bargaining Committee of

    the third respondent. In terms of clause 7.2.1 of the third respondents

    constitution, a Bargaining Committee consists of 20 seats divided equally

    between employer parties and trade union parties. SALGA therefore had 10

    seats allocated to it. SAMWU, because of its superior membership was

    allocated 6 seats, whilst IMATU had 4 seats allocated to it.1

    [8] After members of the Bargaining Committee and others had considered the

    draft collective agreements, and sufficient consensus achieved, the parties

    decided that a team would refine the agreements reached in the Bargaining

    Committee and draft the final agreements, for consideration by the principal

    decision-makers of the parties. The Bargaining Committee adjourned when

    the drafting team, consisting of Messrs. Koen (IMATU), Forbes (SAMWU),

    Lebello (SALGA), Yawa (SALGA) and Van Zyl (SALGA), started its work.

    Many of the members of the Bargaining Committee remained at the venue

    whilst the drafting team were refining the draft agreements.

    [9] The drafting team considered at least two issues on which the Bargaining

    Committee did not reach consensus i.e. the period over which back pay

    should be paid and the date on which the wage curve scales would be

    increased. After some deliberations and consultation with their respective

    principals, the parties agreed on nine months back pay over the ensuing nine

    months. The date on which the wage curve scales would be increased is the

    subject of a factual dispute that is at the heart of this case. According to the

    appellant, no agreement was reached. According to the unions, it was agreed

    that the implementation date for the increases would be 1 July 2010. The

    agreement relative thereto reads as follows:

    1 In terms of clause 5.4 of the SALBCs Constitution the allocation of representations amongst Trade

    Union Parties shall be determined by the following formula: A C B x 1 Where A equals the membership of the Trade Union in question. B equals the total joint membership of the Trade Union Parties. C equals the number of seats allocated to the Trade Union Parties.

  • 5

    8.2 The initial minimum salary on TASK Grade 1 of R 4,000.00 (four

    thousand rand) per month shall increase by the same percentage as agreed

    to in the current Wage and Salary Collective Agreement.

    8.3 The salary scales referred to in Annexures B1 to B8 will be

    adjusted with effect from 1 July 2010 and then annually thereafter by the

    same percentage as agreed to in the applicable Wage and Salary Collective

    Agreement.

    [10] SALGAs version was that the implementation date would be 1 July 2011.

    The court a quo found that the unions version is the correct version and

    rejected SALGAs version.

    [11] The drafting committee concluded their deliberations and refining of the draft

    agreements whereafter Adams (the Deputy General Secretary for Legal

    Matters of IMATU) was requested to print hardcopies of the agreements.

    Adams gave Yawa a copy of the two agreements. The unions indicated that

    they and SALGA discussed the contents of the agreements with their

    principals who were satisfied therewith and prepared to sign the agreements.

    Some Johannesburg branch members of SAMWU were dissatisfied with the

    agreement reached. According to Forbes, SAMWU would have signed the

    agreement irrespective of the dissatisfied members protestations.

    [12] On 20 April 2010, between 19H13 and 19H19, Mr George (SALGAs CEO)

    was interviewed on national television by Jeremy Maggs. When asked

    whether the matter was close to resolution he replied as follows:

    We have resolved the matter now. We have a deal on the table that we have

    worked on this afternoon as a culmination of what was worked off overnight,

    last ..., I mean yesterday at the South African Bargaining Council, so now we

    have a deal that as I leave the studio, I will be going back to the bargaining

    council to formalise the signing of the deal ... there is a deal Jeremy, that has

    been accepted by SAMWU, it has been accepted by IMATU remember there

    is (sic) three parties in the Bargaining Council SAMWU, SALGA, IMATU, all

    parties have now accepted the deal on the table.

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