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[2011] ZAECELLC 19
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HOSPERSA and Others v MEC for Health: Western Cape and Others (C 37/2011) [2011] ZAECELLC 19 (9 February 2011)
Not reportable
Of interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C 37 / 2011
IN THE MATTER BETWEEN:
HOSPERSA
…............................................................................
First
applicant
WINSTON
ANDREWS
…......................................................
Second
applicant
ANTON
HOCHER
….................................................................
Third
applicant
and
MEC
FOR HEALTH: WESTERN CAPE
….............................
First
respondent
DEPARTMENT
OF HEALTH: WESTERN CAPE
THE
PUBLIC HEALTH & WELFARE
…...........................
Second
respondent
SECTORAL
BARGAINING COUNCIL
….............................
Third
respondent
JUDGMENT
STEENKAMP J:
Introduction
This is an urgent application for an interdict pending the
resolution of a dispute between the parties at the Public Health and
Welfare Sectoral Bargaining Council (the third respondent, to which
I shall refer as “the bargaining council”).
By agreement between the parties, the application under this case
number has been consolidated with a similar application set
down for
today under case number C 38 / 2011. The second applicant in that
matter, Anton Hocher, is now the third applicant under
this case
number. The second applicant is Winston Trevor Andrews. Both Andrews
and Hocher are members of the Health and Other
Services Personnel
Union of South Africa (HOSPERSA), the first applicant, and employees
of the Department of Health, Western
Cape (the second respondent).
The applicants seek an order pending the resolution of a dispute
that has been referred to the bargaining council concerning
the
interpretation and application of a collective agreement concluded
in the Public Service Coordinating Bargaining Council
and in the
Health and Welfare Sectoral Bargaining Council and embodied in its
Resolution 1 of 2003, that:
The first and second respondents are interdicted and restrained
from giving effect to the demand issued by them that the second
and
third applicants return to their workplace forthwith.
The first and second respondents are interdicted and restrained
from taking any steps to treat the second and third applicants’
absence from their workplace as unauthorised absence.
The first and second respondents are ordered to treat the second
and third applicants in all aspects as persons who have been
duly
seconded by it to first applicant as full-time shop stewards for
the period 1 January 2011 to 31 December 2011.
Background to the application
Hospersa has nominated both Andrews and Hocher to serve as full-time
shop stewards for the year 1 January 2011 to 31 December
2011. The
arrangement in terms of which the employer releases an employee to
serve as a full-time shop steward of the union,
while the employer
continues to pay him or her, is governed by a collective agreement
reached in the bargaining council and embodied
in resolution 1 of
2003.
The relevant provisions of the resolution are the following:
“
3.1
Eligibility
for appointment as a FTSS
1
In order to be appointed as a
FTSS a person must:
3.1.1 be a permanent employee in
the public health and welfare sector and have been nominated by the
trade union;
3.1.2 be a member in good
standing of the trade union making the nomination; and
3.1.3 not hold a critical or
managerial (including junior, middle and senior management level)
post at the workplace or been employed
at a level higher than level
8. In determining whether a person is critical the following criteria
should be considered:
3.1.3.1 the type of service
provided;
3.1.3.2 the nature of work
performed by the employee;
3.1.3.2 the current and expected
allocation of resources; and
3.1.3.4 the non-availability of
similar skills to replace the employee.
3.1.4 The limitations stipulated
in clause 3.1.3 above may be lifted in exceptional circumstances by
agreement of the respective
trade union and the employer, represented
by the head of the department. In considering whether an exception
ought to be made,
the parties may take into account the following:
3.1.4.1 the burden and
complexity of labour relations work required to be performed by the
FTSS;
3.1.4.2 the nature and type of
negotiations at the FTSS will be involved in;
3.1.4.3 the nature and number of
disputes that may arise.”
and
“
3.3
Notification
of the elected FTSS
3.3.1 Once the trade union
parties have nominated and elected their FTSS, the trade unions must
notify the respective departments
in writing of the names of the
employees who have been elected as FTSS. A copy of this notification
shall be sent to the Council.
3.3.2 the relevant department
may be allowed a maximum of 30 days for the executing authority or
his/her delegate to release the
FTSS subject to an extension of a
further 30 days by agreement of the parties.”
“
3.4
Appointment
of the FTSS
3.4.1 Once the respective
departments have received the notification, the appointment of the
FTSS will be duly confirmed.
3.4.2 Such appointment will be
by way of a secondment to their respective trade union.”
“
3.5
Period
of appointment
3.5.1 The FTSS is appointed for
the period of one year and may be re-elected and accordingly the
FTSS’s secondment may be
extended.
3.5.3 The FTSS may be appointed
to this position for a period of three years but will be seconded by
the employer to the trade union
for one calendar year reviewed
annually by both parties, commencing 1 January and ending 31
December. In the event that the agreement
is implemented during the
course of the year, the FTSS will be released to commence with
his/her activities for the remainder of
the year."
Both applicants – Andrews and Hocher – have been acting
as full-time shop stewards during 2009 and 2010. When Hospersa
notified the Department of Health (the second respondent) that it
wished to extend their secondment for the 2011 calendar year,
the
Department refused.
In the case of Andrews, Hospersa notified the MEC and the Head of
the Department of Health on 1 December 2010 that, in terms
of clause
3.3.1, they had nominated and elected him to serve as FTSS from 1
January to 31 December 2011 and wished him to be
seconded. On 29
December 2010, the Head of the Department responded in the following
terms:
“
Your
request for the release of Mr Andrews to serve as FTSS from 1 January
2011 to 31 December 2011, refers.
The Department did consider your
request, as well as the service delivery needs of the department.
After careful consideration,
the Department of Health cannot approve
your request to release Mr Andrews for another term due to the
following reasons:
The Occupational Therapy Unit
is working with one less member for the past two years. The strain
an extra workload on the Department
is negatively influencing
service delivery.
The Occupational Therapy Unit
is expanding its services due to the needs of patients and we need
Mr Andrews back to assist the
Department to reach its objectives.
Given the reasons above is it
[
sic
] not possible to release Mr Andrews for another year and
we appreciate your understanding in this regard. You come to make
another
nomination to the department for consideration.
Mr Andrews must return to his
post he occupied prior to his release as FTSS at Alexandra Hospital
by not later than 3 January 2011."
In the case of Mr Hocher, Hospersa sent a similar letter to the MEC
and the Head of Department on 1 December 2010. In an undated
response and received on 29 December 2010, the head of Department
also refused to release him due to the additional workload
on other
staff members. The head of department notified Hospersa that Hocher
had to return to this post at Groote Schuur Hospital
by 1 January
2011 and that, if he did not do so, his absenteeism "will be
regarded as unauthorised absenteeism which will
result in no work no
pay. If absenteeism continues, the relevant prescripts will apply."
Hospersa referred a dispute to the bargaining council about the
interpretation and application of the collective agreement embodied
in Resolution 1 of 2003 as long ago as 1 February 2010. The dispute
concerns the parties' different views as to whether the Department
has a discretion whether or not to release a full-time shop steward
who has been duly nominated and elected by the trade union.
The
question of a discretion arises on two levels: firstly, whether the
Department has a discretion to refuse such a nomination;
and
secondly, whether it can do so unilaterally based on the criteria
set out in clause 3.1.3.
Although that dispute was conciliated in April 2010, it has not been
arbitrated. It was set down for arbitration in June 2010,
but the
Department raised a point
in limine
that was dismissed. It
was set down again in November 2010, but it was postponed by
agreement between the parties, and subsequent
events have now
intervened.
Pending the resolution of that dispute, the applicants seek an order
enabling the two full-time shop stewards to remain in their
seconded
positions rather than returning to their workplaces at Alexandria
and Groote Schuur hospitals respectively.
Urgency
Ms
Golden
, who appeared for the first and second respondents,
submitted that the application is not urgent.
This court has, in the past, reminded litigants that urgency is not
that there for the taking. Rule 8 of the Rules of the Labour
Court
expressly states that a party that applies for urgent relief must
file an application that complies with the requirements
of rule
7(1), 7(2), 7(3) and, if applicable, 7(7). And rule 7(2) expressly
requires that the affidavit in support of the application
must
contain the following:
the reasons for urgency and why urgent relief is necessary;
the reasons why the requirements of the rules were not complied
with, if that is the case; and
if a party brings an application in a shorter period than that
provided for in terms of section 68 (2) of the LRA, the party
must
provide reasons why a shorter period of notice should be permitted.
In
NUM v Black Mountain,
2
Basson J stated that urgency in itself does not relieve a party from
this obligation and the applicant should, in as much detail
as
possible, placed such facts that are necessary before the court and
which will enable this court to decide whether the forms
of service
provided for in the rules should be dispensed with.
In the present case, the deponents to the founding affidavits dealt
fairly comprehensively with the requirements for an interim
interdict. The same cannot be said for the requirement of urgency.
That is dealt with in a rather cursory fashion. However, the
reasons
for urgency are addressed. The applicants explained that the
Department only made its stance – i.e. that the employees
to
return to their workplaces despite the ending dispute - clear in
January 2011, when it stated that the Department could not
agree to
the union’s request. Until such time as the applicants
launched this application on 20 January 2011, they believed
that an
interim arrangement could be reached by agreement.
The explanation is far from comprehensive and is open to criticism,
but I am satisfied that the applicants have, at a minimum,
explained
the reasons for urgency and why urgent relief is necessary. I will
therefore proceed to deal with the merits of the
application.
The nature of the relief sought
The applicants do not seek a rule
nisi
. Ms
Golden
has
argued that the relief they seek is final in nature. But although it
is not couched in the form of a rule
nisi
, the relief sought
is still interim in nature. What they seek is, in essence, an
interdict
pendent lite.
They seek interim relief pending, not
a dispute before this court, but before the bargaining council. The
requirements for an
interim interdict are therefore still
applicable.
3
Prima facie
right?
Have the applicants made out a
prima facie
right, though open
to some doubt? This depends to a large extent upon the
interpretation of clause 3 of the collective agreement
– the
dispute that the bargaining council has to pronounce on. The
applicants say that they qualify for appointment as
full-time shop
stewards and have been duly elected. The respondents say that the
Department is vested with a discretion whether
or not to release the
applicants; and that they occupy critical posts.
The dispute about the interpretation of clause 3.1.3 is an abject
lesson in the dangers of drafting agreements in the passive
voice.
It states that, "in determining whether a person is critical
the following criteria should be considered", and
then the
criteria are listed. What it does not say, is who should consider
those criteria. Had it been drafted in the active
voice, this
problem of interpretation would not have arisen.
Be that as it may, this is a dispute that the bargaining council
will have to grapple with. In the interim, the question before
me is
whether the applicants have established at least a
prima facie
right to remain in their seconded positions as full-time shop
stewards pending the resolution of the main dispute.
It is common cause that the two applicants qualify with regard to
three criteria – that is, they are permanent employees
in the
public health and welfare sector and have been nominated by the
union; they are members in good standing of the union;
and they are
not employed at a level higher than post level 8. What is in
dispute, is whether they occupy critical posts.
Andrews is employed as an occupational therapy assistant. It is
disputed whether this at post level 4 or 5, but it is in any
event a
low-ranking post. The Department states that it has been working
without him for the past two years. The strain and extra
workload on
the Department is negatively influencing service delivery. The
occupational therapy unit is also expanding its services
and Andrews
is required to assist it.
These statements do not, in my view, establish that Andrews fulfils
a critical post. The mere fact that the OT Unit has managed
without
him for two years, points to the contrary. There can be no doubt
that his absence does lead to an extra workload for
the remaining
personnel in that unit; but they have managed to cope and should be
able to do so for another relatively short
while, pending the
resolution of the dispute before the bargaining council.
In the case of Hocher, he is employed as a "senior
administration officer" in the support services department of
Groote Schuur hospital. He works in the component of environment and
hygiene services. The other SAO in that component retired
recently.
The component is responsible for waste management, portering,
hospital transport, the external environment –
comprising the
hospital grounds, gardens and buildings – and what is
euphemistically known as "death management".
Hocher is, despite the impressive sounding title, a relatively
low-level employee. As is the case with Andrews, the Department
has
managed without him for more than a year. This has, no doubt, led to
inconvenience and will continue to do so pending the
resolution of
the main dispute. In my view, though, the Department has not shown
that it is a critical post and I am satisfied
that the applicants
have established at least a
prima facie
right.
Apprehension of irreparable harm
Should the employees be forced to return to their workplaces pending
the resolution of the main dispute, the trade union will
be deprived
of the expertise that they have built up over the past two years. If
the arbitrator at the bargaining council decides
the dispute in
their favour, they may take up the secondment again; but by that
time, the harm would have been done. They have
set out in the
founding affidavits that they are dealing with a number of current
disputes and that it would lead to delays and
the absence of
competent representation for their members.
Balance of convenience
If I were to grant the interim relief sought, the Department will be
inconvenienced. Should I not do so, the trade union will
be
inconvenienced.
In my view, the inconvenience to the trade union outweighs that of
the Department. The two full-time shop stewards have been
operating
as such for some time and have acquired valuable expertise and
experience. Hospersa represents some 80 000 members,
and the Western
Cape has the third highest number of its members employed in the
public sector. The union will be severely hamstrung
by the loss of
two of its full-time shop stewards in circumstances where their
appointment is in dispute.
There is no doubt that the Department is suffering great
inconvenience. It cannot be easy for any employer to do without the
services of an employee that it is paying while that employee
provides services to its collective bargaining partner. In the
case
of state hospitals that face daily budgetary constraints this must
be even more so. But as I have pointed out, the Department
has
managed without these two employees for more than a year; it is not
inconceivable that they can do so for a further period
of time.
In any event, there is no reason why the underlying dispute cannot
be resolved speedily. That is the very aim of the dispute
resolution
system set up by the Labour Relations Act and administered by the
CCMA and bargaining councils. The council is a party
to these
proceedings. I intend to make an order that will compel it to deal
with the underlying dispute expeditiously.
Alternative remedy
The only other remedy for the applicants is the one that there are
already pursuing, i.e. the referral of a dispute about the
interpretation and application of the collective agreement to the
bargaining council. Pending the resolution of that dispute,
they
have no other remedy.
Conclusion
I am satisfied that the applicants have made out a case for the
interim relief sought. The inconvenience to the respondents can
be
addressed by the proper and expeditious resolution of the underlying
dispute by the bargaining council, provided the parties
to the
dispute assist it by proceeding to argue the merits of the dispute
without further delay.
With regard to costs, I take into account that Hospersa and the
Department of Health have an ongoing relationship. Furthermore,
both
the individual applicants are still employed by the Department. The
parties have to resolve the underlying dispute as soon
as possible.
An adverse costs order could have a chilling effect on that process.
Order
Pending the resolution of a dispute that has been referred to the
Bargaining Council concerning the interpretation and application
of
the collective agreements concluded in the Public Service
Coordinating Bargaining Council and in the Health and Welfare
Sectoral Bargaining Council recorded in its Resolution 1 of 2003:
The first and second respondents are interdicted and restrained
from giving effect to the demand issued by them that the second
and
third applicants return to their workplace forthwith.
The first and second respondents are interdicted and restrained
from taking any steps to treat the second and third applicants’
absence from their workplace as unauthorised absence.
The first and second respondents are ordered to treat the second
and third applicants in all respects as persons who have been
duly
seconded by it to first applicant as full-time shop stewards for
the period 1 January 2011 to 31 December 2011.
The third respondent – i.e. the Bargaining Council – is
ordered to set the dispute under case number PSHS 761-09/10
down for
arbitration by no later than 14 March 2011 and to issue its award
within 14 days of the conclusion of the arbitration.
There is no order as to costs.
______________________________
STEENKAMP J
Date of hearing:
4 February 2011
Date of judgment:
9 February 2011
For the applicants:
Adv RJ Seggie SC
Instructed by Llewellyn Cain, Pietermaritzburg
For the respondent:
Adv T Golden
Instructed by The state attorney, Cape Town
1
Full-time
shop steward
2
(2007)
28
ILJ
2796
(LC) para [13]
3
As
set out, for example, in
Setlogelo v
Setlogelo
1914 AD 221
at 227 and
followed in countless cases thereafter.