Innovative Staffing Solutions (ISS) has lost yet another lap of its battle to stay off the National Bargaining Council for Road Freight and Logistics Industries’ (NBCRFLI) jurisdiction after its application for leave to appeal against the whole judgment and orders of the Labour Court handed down against it in November 2021 was dismissed on the 5th of April 2022.

On 24 November 2021, Judge Dephny Mahosi ordered that ISS was prohibited from claiming that it is not a Temporary Employment Service (TES) and that it is required to comply with the Main Collective Agreement of the Council.

ISS launched an application for leave to appeal against the whole judgment and orders of the Labour Court but it was thrown out with no order for costs.

In dismissing the application, Judge Mahosi ordered that pending the final determination of the review application brought by the applicant (ISS):

  • ISS is interdicted and restrained from holding out to any road freight companies that it is entitled not to comply with the NBCRFLI’s Main Collective Agreement (MCA) or that section 198(3) of the LRA is not applicable to its operations.
  • ISS is interdicted and restrained from advising any road freight companies that, if it engages its services in terms of its standard service level agreement, employees will no longer be subject to the provisions of the respondent’s MCA.
  • ISS is required to comply with the provisions of the NBCRFLI’s MCA.

Concluding her judgement, Judge Mahosi said:

I would urge labour courts in future to take great care in ensuring a balance between expeditious resolution of a dispute and the rights of the party which has lost. If there is a reasonable prospect that the factual matrix could receive a different treatment or there is a legitimate dispute on the law that is different. But this kind of case should not reappear continuously in courts on appeal after appeal, subverting a key purpose of the Act, namely the expeditious resolution of labour disputes Judge Dephny Mahosi

ISS’ application for leave to appeal to the Labour Appeal Court

In response to its application being turned down, ISS immediately filed a petition for leave to appeal to the Labour Appeal Court.

“We have petitioned the Labour Appeal Court with regards to the judgement made earlier this month by Judge Mahosi and we believe that it has excellent prospects for success,” ISS Managing Director, Arnoux Maré, told SA Trucker.

“ISS would like to emphasise again, however, that our company offers permanent employment to our over 36,000 staff, who are employed across a variety of sectors such as mining, engineering, construction, retail, agriculture, and transportation and logistics,”

“Should this matter be decided in ISS’ favour, all other rulings made regarding the case would become void, and the issue would once again be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). We have therefore written to the Judge President of the Labour Appeal Court to ask him to please intercede to expedite the hearing of this matter,” Maré added.

Read also: Our complete coverage of the ISS vs NBCRFLI legal woes

Maré said there is still no ruling that states that ISS should be forced to register with the Bargaining Council, which means that the Council remains unable to force ISS to comply with its collective agreement, which is, however, in direct contradiction with Judge Mahosi’s ruling on 24 November 2021.

He also said that ISS, in the interim, had filed a second Review Application regarding a recent judgement by a Commissioner of the Bargaining Council who ruled that the bargaining council had jurisdiction over them despite being aware of the main Review Application pending at the Labour Court.

National Secretary for the NBCRFLI, Musa Ndlovu, however, says there is little to no hope of success for ISS’ application. He also expressed no knowledge of the second review application allegedly made by ISS.

“We are not aware of such an application and as such, we cannot comment on something that we have not received any legal papers from the Attorneys of ISS,” Ndlovu said.

He added that Maré’s statement that “the there is no ruling that states that ISS should be forced to register which means that the Council remains unable to force ISS to comply with its MCA” are thus devoid of fact and in direct contravention of the order of the 24th of November 2021, which clearly directs ISS to comply with the councils Main Collective Agreement. The order entails registering ISS and its employees with the Council, rendering monthly returns and making payments.

All attempts by ISS to suspend the operation of the enforcement of the demarcation have failed and ISS has to comply. The Demarcation Award cannot be suspended pending the outcome of the Review ApplicationNBCRFLI Musa Ndlovu

Ndlovu said the NBCRFLI is not prepared to try its case on social media as ISS has been doing saying where necessary, the council will provide clarity to stakeholders to the council.