Sostenus Wilherm
Beifang Mining Technology Services (Pty) Ltd has approached the Labour Court challenging an arbitration award that reinstated a recognition agreement with the Revolutionary Union (RU).
It argues that the agreement was invalid because the union allegedly did not represent the majority of employees in the relevant bargaining unit when it was signed.
The company has lodged a notice of appeal in terms of Section 89 of the Labour Act, challenging findings made by the arbitrator in relation to the recognition agreement concluded between the company and the union on 20 March 2024.
According to documents seen by the Windhoek Observer, Beifang’s grounds of appeal centre on the validity of the recognition agreement and whether the Revolutionary Union represented the majority of employees in the bargaining unit when the agreement was concluded.
“The arbitrator erred in law in failing to find that the Recognition Agreement signed on 20 March 2024 was null and void ab initio, meaning invalid from the outset,” Beifang says in its notice of appeal
The company further challenges the arbitrator’s alleged failure to distinguish between agreements that are voidable and those that are void from the beginning, arguing that the legal consequences of the two situations are different.
“The arbitrator erred in law in failing to make a distinction between agreements that are voidable and those that are void ab initio and the consequences that follows from each respectively,” the document reads.
Beifang further argues that an agreement that is void from the outset cannot create legal rights or consequences.
The company says in its appeal that the arbitrator erred in law failing to hold that the nothing follows from an agreement that is void ab initio as same has no legal effect and consequence.
The company is also challenging the arbitrator’s finding that the recognition agreement remained legally binding despite the union allegedly not representing the majority of employees in the bargaining unit on 20 March 2024.
Beifang says the arbitrator made an error in finding that the agreement was legally binding, despite the union allegedly failing to meet the majority requirement.
“The arbitrator erred in law in finding that the Recognition Agreement entered into between the parties on 20 March 2024 was legally binding despite the fact that on 20 March 2024 the Revolutionary Union (RU) did not represent the majority of employees in the bargaining unit and should thus not have been recognized,” the document reads.
Beifang argues that the Revolutionary Union should therefore not have been recognised as the exclusive bargaining agent at the time the agreement was concluded.
The company further relies on Section 64(2)(ii) of the Labour Act, arguing that the arbitrator should not have directed it to give effect to the recognition agreement if the union did not represent the majority of employees in the bargaining unit.
“The arbitrator erred in law in directing the Appellant to give effect to the Recognition Agreement despite the peremptory provisions of section 64(2) (ii) which prohibits an employer from recognizing a union which does not represent the majority of employees in the bargaining unit as an exclusive bargaining agent.”
The appeal follows an arbitration award that went against Beifang and effectively restored the recognition agreement between the company and the Revolutionary Union.
According to the material orders contained in the award, the cancellation of the recognition agreement between the Revolutionary Union and Beifang Mining Technology Services, purportedly effected through the company’s letter dated 11 April 2024, was declared null and void and of no force and effect.
The arbitrator further declared that the Revolutionary Union continued to represent the majority of employees in the relevant bargaining unit and ordered that the recognition agreement concluded on 20 March 2024 be reinstated with full force and effect from the date of the award.
The company was also ordered to deduct prescribed trade union membership fees from the remuneration of employees who are members of the Revolutionary Union.
Those deductions are to be remitted to the union, less a one percent administration fee, by no later than the fifth day of the month following the award.
The arbitration award also directed Beifang to cease all interference with intimidation of or victimisation of employees who are, or wish to become, members of the Revolutionary Union.
The company was further ordered to comply with the recognition agreement.
The dispute therefore centres on the legal validity of the recognition agreement and whether the Revolutionary Union met the statutory majority requirement when it was recognised by Beifang in March 2024.
The company is also challenging the legal basis upon which the arbitrator concluded that the union continued to represent the majority of employees in the bargaining unit.
Beifang’s position is that recognition as an exclusive bargaining agent is subject to statutory requirements and that an employer cannot lawfully recognise a union that does not satisfy the majority threshold.
The company is asking the Labour Court to determine whether the arbitrator correctly interpreted and applied the relevant provisions of the Labour Act and whether the recognition agreement signed on 20 March 2024 could legally remain in force.
