Construction and Allied Workers Union v Lesotho Brick And Pave and Another (Pty) Ltd (LC/REV 93 of 10) [2011] LSLC 28 (14 October 2011)

IN THE LABOUR COURT OF LESOTHO LC/REV/93/10 HELD AT MASERU In the matter between: CONSTRUCTION AND ALLIED WORKERS’ UNION APPLICANT and LESOTHO BRICK AND PAVE (PTY) LTD DIRECTORATE OF DISPUTE PREVENTION AND RESOLUTION 1st RESPONDENT 2nd RESPONDENT RULING Date: 14/10/11 Practice and Procedure - Non-compliance with Labour Court Rules to represent”-1st the grant of an “authority in respect of respondent’s Counsel raising a point in limine to the effect that the union lacks the mandate to bring a case on behalf of the members it purports to represent - Legal point upheld, but flaw considered rectifiable. 1. The applicant union has approached this Court seeking the review of the award of the Directorate of Dispute Prevention and Resolution (DDPR) in A O834/09 and A 0840/09 which were consolidated and heard as one. The gist of the claim before the DDPR was that the complainants were underpaid by virtue of having not been in paid the minimum wage applicable to construction machine operators accordance with the Wages Order No.158 of 2008. 2. At the inception of the hearing of the review application, 1st respondent’s Counsel pursued a preliminary point she had taken to the effect that the union has no locus standi in judicio in the matter. Motivating the point, she contended that the dispute does not relate to it as an entity, but it purports to represent some other persons who have not granted it the authority to represent them. She brought it to the Court’s attention that the applicant has filed an “authority to represent” which has not been signed by the purported members, and she argued that a proper “authority” must originate from the person who wishes to be represented. She submitted that the union cannot authorise itself to represent the complainants. In reaction, the union official insisted that the union is empowered under Rule 3 of the Labour Court Rules, 1994 to institute proceedings on behalf of its members. The Court is therefore confronted with the issue whether the applicant has locus standi in judicio to represent the complainants in the matter before it. WHETHER THE UNION HAS LOCUS STANDI IN JUDICIO 3. As aforementioned, the union official insisted that they are properly before Court relying on Rule 3 of the Labour Court Rules, 1994. The Rule provides that; Proceedings for the determination of any matter by the Court shall be instituted by any interested person or persons presenting, or delivering by registered post, to the Registrar an originating application, which shall be in writing in or substantially in accordance with Form LC 1 contained in Part A of the Schedule … The Rule is not very relevant in the determination of the issue that is before us. The real question for determination here is whether the union is properly before Court. It is common cause that the union is not appearing in person but on behalf of other people. It is also indisputable that the applicant filed an “authority to represent” which was signed by the union’s General Secretary. The issue then becomes whether this constitutes a proper “authority to represent” as envisaged by Section 28 of the Labour Court Order, 1992. The Section provides, to the extent relevant, that; (1) At any hearing before the Court, any party may appear in person or be represented - a) by an officer or any employee of a trade union or of an employers’ organization; Furthermore, Rule 26 of the Labour Court Rules, 1994 provides that; Where a party is represented by a legal practitioner or any of the persons specified in Section 28 (1) of the Code, that party shall (emphasis mine) file in Court a written authority for such representation in or substantially in accordance with Form LC 6 contained in Part A of the schedule. 4. The Rule is clearly couched in a peremptory manner. Applying this Section to the case before us, the union ought to have been authorised by the members it purports to represent to lodge the review case on their behalf. The Court also notes that the parties that are before Court now are not the parties that were before the DDPR when this is purported to be a review of the very matter that was before the DDPR. At the DDPR parties were cited by name, but here the union appears as the applicant. This is highly irregular because the matter is now between different parties. We will now explore what constitutes a proper authority to represent. ASCERTAINING PROPER REPRESENTATION 5. As enunciated under Rule 26 (supra), representation has to be in accordance with Form LC 6 contained in Part A of the Schedule to the Labour Court Rules, 1994. It clearly emerges from the Rule that an “authority” can only be granted by the parties seeking to be represented. Perhaps to put the point in a proper perspective it would be prudent to reproduce the said form :- THE KINGDOM OF LESOTHO THE LABOUR COURT FORM Case*/Appeal LC 6 RULE 26 No… 19.. AUTHORITY TO REPRESENT …………………….………………………………. Applicant(s)* …………………………………………………….. Applicant(s)* Versus ……………………………………………………. Respondent(s)* …………………………………………………… To: The Registrar, The Labour Court. P. O. Box MASERU, Take notice that I*/we, the above mentioned applicant(s)*/ appellant(s) /respondent(s) …………………………………………… …………………………………………… have appointed …………………………………………… whose postal address is …………………………………………… …………………………………………… To represent me*/us in the above matter in his capacity as (state capacity under section 28 (1) of the Labour Code Order, 1992) ...................................................................... Signature Capacity Place Date ……………. ………………… ………….. … ……………. ………………… ………….. … ……………. ………………… …………… … *(Delete wherever inapplicable) 6. Clearly, where a complainant is represented he/she has to expressly authorise the person it has appointed to act on his/her behalf to so act. This authority is signified by complainant’s appending their signatures to the “authority to represent”. Since the complainant’s were cited as parties before the DDPR they also have to appear as such on review. The union being an interested party but acting only in a representative capacity, could appear as one of the parties. In this case since it appears in a representative capacity it is enjoined to file an “authority to represent” duly signed by the parties which gave it the mandate. 7. This Court took a similar stance in Tebello Thandazo & 6 Others v Nien Hsing International LC 39/10 (unreported). This was a case in which only one of the complainants had signed the “authority to represent”. The Court refused to accept the authority on the basis that all the complainants had to sign the “authority” in order to ensure that the union indeed had their mandate as required by law. This is however a rectifiable flaw and therefore does not warrant the invalidation of the proceedings. The Court deems the irregularity not to be fatal as it does not go the root of the case. The applicant is in the circumstances given an opportunity to regularise its papers by seeking a proper mandate. 8. By virtue of the authority tendered by the applicant not bearing its members’ signatures, the Court has established that the union is not properly before Court. The union has clearly not been given a mandate to represent the complainants.1st respondent’s Counsel’s point in limine is found to be in order and is therefore upheld. There is no order as to costs. THUS DONE AND DATED AT MASERU THIS 14th DAY OF OCTOBER, 2011. F. M. KHABO DEPUTY PRESIDENT OF THE LABOUR COURT I CONCUR I CONCUR M. THAKALEKOALA MEMBER R. MOTHEPU MEMBER REPRESENTATION: FOR THE APPLICANT : MR. T. THELINGOANE FOR 1st RESPONDENT : ADV. L. SEPHOMOLO 6