Murray and Roberts (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others

Murray and Roberts (M&R) was engaged in constructing the Kusile Power Station for Eskom. Two collective agreements existed at Kusile: the Project Labour Agreement (PLA) dated 29 February 2012 and the Final Partnership Agreement (PA) dated 7 June 2013, concluded between employer organisations and various trade unions, excluding AMCU. Both agreements defined "trade union" as only those that were signatories and required new unions to meet certain thresholds (300 members per site for the PA) and be members of specific bargaining councils. On 26 February 2014, AMCU notified M&R seeking to exercise organisational rights under sections 12, 13, 14, and 15 of the LRA. M&R did not meet with AMCU as required. AMCU referred an organisational rights dispute to the CCMA on 17 April 2014 (first referral). On 21 May 2014, M&R raised a preliminary point that AMCU needed 5000 members in the MEIBC to qualify. Instead of deciding this, a settlement agreement was concluded whereby AMCU withdrew its dispute and agreed to submit its audited membership to the MEIBC. On 20 March 2015, AMCU again notified M&R seeking organisational rights, stating it had 556 members. M&R again failed to meet. AMCU referred a second dispute on 20 April 2015. M&R raised a res judicata objection. The second commissioner issued a jurisdictional ruling on 28 May 2015 upholding the objection based on the settlement agreement. AMCU then brought a review application to set aside both the settlement agreement and the jurisdictional ruling.

• Whether the Labour Court erred in not requiring joinder of the seven trade unions that were parties to the PLA and PA
• Whether the settlement agreement was void due to common mistake regarding the legal position on organisational rights
• Whether threshold agreements in collective agreements can preclude minority unions from accessing organisational rights under sections 12, 13, and 15 of the LRA
• Whether the delay in bringing the review application should have been condoned
• Whether the jurisdictional ruling based on the settlement agreement was correctly set aside

The appeal was dismissed with costs. The Labour Court's decision to set aside the settlement agreement concluded on 21 May 2014 and the jurisdictional ruling of 28 May 2015 was upheld.

A settlement agreement concluded on the basis of a common mistake regarding the legal position is void when: (a) the contract was based on a common assumption; (b) the assumption was incorrect; and (c) the subject-matter of the assumption was vital to the transaction such that the parties would not have entered into it had they known the true position. Threshold agreements concluded under section 18 of the LRA between employers and majority unions cannot preclude minority unions from exercising or bargaining for organisational rights under sections 12, 13, and 15 of the LRA. Minority unions may access organisational rights by: (1) meeting thresholds in existing collective agreements; (2) bargaining directly with employers to conclude collective agreements on organisational rights; or (3) referring the matter to arbitration under section 21(8C) of the LRA. Joinder of parties to threshold agreements is not required in proceedings to set aside a settlement agreement to which they were not parties and in which they have no direct legal interest.

The Court noted that AMCU had raised an alternative ground for review based on alleged partiality or reasonable perception of bias by the commissioner in the conciliation proceedings. The Court declined to decide this issue as it was not adequately ventilated and was unnecessary given the finding on common mistake. The Court also observed that if M&R had known the true legal position but misrepresented it to AMCU, this would constitute misrepresentation inducing the settlement agreement, providing yet another basis for vitiation. The Court commented that the settlement agreement did not appear to involve any compromises by M&R and that AMCU had "capitulated" while ignorant of the true legal position. The Court exercised discretion to condone the delay of one year and six months in bringing the review application, noting that the nature and merits of the application justified entertaining it.

This case is significant for clarifying the rights of minority trade unions to access organisational rights under the LRA despite the existence of threshold agreements. It reinforces the Constitutional Court's holding in SACOSWU that private threshold agreements cannot limit constitutional rights to collective bargaining. The judgment confirms that minority unions have multiple pathways to organisational rights and are not bound by thresholds set in agreements to which they are not signatories. It also provides important guidance on when settlement agreements can be set aside on grounds of common mistake regarding the legal position, applying contract law principles to labour disputes. The case demonstrates the courts' willingness to protect constitutional labour rights over private contractual arrangements that seek to exclude minority unions.