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Suffice it to say that Ergo undertook not to recognise any other union unless it is "sufficiently representative" (clause 5.2.7).

In terms of 5.3.5, the parties may at any stage agree to mediation and arbitration in an attempt to settle the dispute.The appeal succeeded with costs including the costs of two counsel.The determination of the Industrial Court was set aside and replaced with the following: "The practice of the [respondent] in refusing to implement agreed wage increases retrospectively to those employees who embarked upon a legal strike in furtherance of the 1987 wage dispute does not constitute an unfair labour practice." In the Labour Appeal Court separate judgments were delivered by the presiding judge and jointly by the two assessors."(1)(a) Any party to any proceedings before a labour appeal court may appeal to the Appellate Division of the Supreme Court of South Africa against a decision or order of the labour appeal court (except a decision on a question of fact), providing (sic) that the labour appeal court grants leave for such an appeal or, where such leave has been refused, the Appellate Division grants leave thereto. Do they refer to any factual finding made by the Labour Appeal Court or do they refer to the whole of a judgment on a question which is one of fact?(2) After hearing an appeal, the Appellate Division may confirm, amend or set aside the decision or order against which the appeal has been noted or make any other decision or order, including an order as to costs, according to the requirements of the law and fairness." This provision in so far as it excludes the jurisdiction of this Court in respect of a "decision on a question. What of a decision, such as the present, which is one of mixed fact and law?The complaint was made by the appellant, the National Union of Mineworkers ("NUM").

Ergo denied that its conduct constituted an unfair labour practice.In terms thereof NUM was recognised by Ergo as the sole collective bargaining representative of its members within a defined bargaining unit, ie "the A and B Paterson job grades".On 10 July 1987 the agreement was revised and NUM's recognition was extended to embrace all the employees (whether its members or not) within the aforesaid bargaining units.In my view this provision merits reconsideration by the Legislature.7 It would appear that we are required to determine whether, on the facts found by the Labour Appeal Court, it made the correct decision and order. It will be convenient therefore to determine the facts which were common cause or not in issue before the Court a .On 29 April 1984 NUM and Ergo entered into a recognition agreement.If the dispute is not referred to arbitration and should it remain unresolved after the third meeting, then NUM or Ergo becomes entitled to invoke the dispute-resolving mechanisms provided in the Act: 5.3.7.3.