The applicant, Parsons Transport Operations (Pty) Ltd, sought to review and set aside an enforcement arbitration award dated 2 November 2023 issued by the second respondent (Commissioner Noko Nkgoeng) under the auspices of the third respondent (National Bargaining Council for the Road Freight & Logistics Industry). The arbitration award directed the applicant to comply with collective agreement(s) by: (i) complying with a compliance order and statement of contraventions; (ii) ensuring the applicant's business and all employees are registered with the third respondent; and (iii) paying R50,645.91 in penalties and other payments. A compliance order was served on the applicant on 11 July 2023, which the applicant allegedly failed to comply with, leading to a statement of contraventions being issued. At arbitration on 30 October 2023, the applicant's representative requested time until 31 October to revert to the designated agent, but allegedly failed to do so. The commissioner proceeded to accept the uncontested evidence of the designated agent and concluded there was a contravention of the relevant collective agreement. The review application was unopposed. Critically, the applicant failed to place before the Court the record of the arbitration proceedings, the compliance order, or the statement of contraventions.
The application was postponed sine die to enable the applicant to take appropriate steps to address the concerns regarding the omitted record of proceedings. There was no order as to costs.
The Labour Court cannot properly exercise its powers of review under section 145 of the Labour Relations Act without a proper and complete record of the arbitration proceedings where the record is material to the determination of the review application. An arbitrating commissioner of a Bargaining Council or CCMA has a duty to ensure that a proper and complete record of proceedings is kept and made available to the Labour Court registrar in the event of a review application. The keeping of such a record is necessary as it provides objective material about what transpired at arbitration proceedings, which assists the court in the proper exercise of its review powers. Where the record is missing, the Court must first consider whether the applicant has taken all reasonable steps to search for the evidence and/or reconstruct the record. If the applicant has not taken all reasonable steps, the Court must choose between dismissing the application or postponing it to enable the applicant to take such steps. The Court will usually adopt postponement unless considerations of fair play between the parties, finality of litigation, or other factors (such as where the matter has dragged on for a long time and the party has had ample opportunity to reconstruct the record but failed to do so for no acceptable reason) demand that the application be dismissed without consideration of the merits.
Acting Judge Milo noted that the applicant's approach of requesting the record directly from the third respondent and then filing it under a rule 7A(6) notice was misguided - the proper procedure would have been for the applicant to bring an application to compel the third respondent to comply with its obligations under rule 7A(2) (or rule 37(8) under the new rules). The Court also observed that by the time the applicant filed its rule 7A(6) notice on 26 August 2024, the new Labour Court rules had already come into effect and repealed the former rules, such that any record should have been filed in terms of rule 37(13) of the new rules, though nothing of substance turned on this. The Court remarked that the bundle filed by the applicant did not even hint that a compliance order and statement of contraventions had been issued or that an arbitration had been held, highlighting the inadequacy of what was placed before the Court.
This case highlights the critical importance of ensuring that a proper and complete record of arbitration proceedings is placed before the Labour Court in review proceedings to enable it to exercise its powers of review. The judgment reaffirms the duty of arbitrating commissioners and bargaining councils/CCMA to keep proper records and make them available in review applications. It provides guidance on the Labour Court's approach when faced with review applications where material portions of the record are missing, including consideration of whether the applicant has taken all reasonable steps to search for evidence or reconstruct the record. The case demonstrates the court's balancing approach between dismissing applications for failure to provide the record versus postponing to allow applicants opportunity to obtain the record, particularly in unopposed matters where dismissal would potentially allow an award that may not deserve to stand to remain unchallenged. It serves as a reminder to applicants in review proceedings of their obligations under the Labour Court rules to obtain and place the record before the Court, including the option to compel production of the record where necessary.