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[2020] ZALAC 31
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Pelindaba Workers Union v SA Nuclear Energy Corporation and Others (JA73/2018) [2020] ZALAC 31; [2020] 10 BLLR 1024 (LAC); (2020) 41 ILJ 2602 (LAC) (25 June 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA73/2018
In
the matter between:
PELINDABA
WORKERS UNION Appellant
and
SA
NUCLEAR ENERGY CORPORATION First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
COMMISSIONER
LEN DEKKER N.O.
Third
Respondent
Heard:
06 June 2020
Delivered:
25 June 2020
Coram:
Davis, Sutherland JJA and Savage AJA
______________________________________________________________________
JUDGMENT
______________________________________________________________________
SUTHERLAND JA
Introduction
[1]
[1]
This case is about whether the Commission for Conciliation, Mediation
and Arbitration
(CCMA) had jurisdiction to address the application
brought by the appellant (PWU) claiming that the employer of its
members, the
first respondent (SANEC), committed an unfair labour
practice as contemplated in section 186(2)(
a
)
of the Labour Relations Act 66 of 1995 (LRA), in that SANEC’s
conduct of which PWU complained, constituted an “….unfair
act or omission ….involving ….unfair conduct relating
to the provision of benefits to an employee.
[2]
[2]
A commissioner of the CCMA held that jurisdiction existed; on review,
the Labour Court
found the opposite. The controversy falls to be
determined by ascertaining the true character of the dispute because
the critical
contestation between the two parties is simply whether
the dispute is really about a benefit. If it is, the CCMA has
jurisdiction,
if not, the CCMA has not got jurisdiction.
[3]
[3]
The test for the true dispute is well established. In
Coin
Security
Group
(Pty) Ltd v Adams & others
[4]
at [16]:
‘
It
is the court's duty to ascertain the true or real issue in
dispute:
Ceramic
Industries Ltd t/a Betta Sanitaryware v
National
Construction Building & Allied Workers Union & others
(2)
(1997)
18 ILJ 671 (LAC)
;
Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union &
others (1)
(1998)
19 ILJ 260 (LAC)
.
In conducting that enquiry, a court looks at the substance of the
dispute and not at the form in which it is presented (
Fidelity
at
269G-H;
Ceramic
at
678C). The characterization of a dispute by a party is not
necessarily conclusive (
Ceramic
at
677H-I; 678A-C). There is in my view no difference in the approach of
these decisions. In each case the court was concerned
to establish
the substance of the dispute. The importance of doing this lies in s
65 of the Act which provides that no person
may take part in a
strike if 'the issue in dispute is one that a party has the right to
refer to arbitration or to the Labour Court
in terms of this Act . .
.'. The phrase 'issue in dispute' is, in relation to a strike,
defined as 'the demand, the grievance,
or dispute that forms the
subject matter of the strike'.’
The dispute
[4]
The point whether or not the dispute was about a benefit, and in
turn, whether the
CCMA had jurisdiction, was pertinently raised in
the CCMA hearing.
[5]
What exactly did SANEC do? The proximate act was to grant a wage
increase to the D
band employees of 5.5%. What SANEC did not do was
to grant to that band, a 7.5% increase, which is what the rest of the
workforce
was granted.
[6]
PWU is a minority unrecognised union. It has members in the D band,
hence its grievance
on their behalf. NEHAWU is the recognised
majority union with whom collective bargaining takes place by SANEC.
[7]
The conclusion of collective bargaining for the 2015 financial year
produced a collective
agreement between SANEC and NEHAWU granting a
7.5% increase in respect of bargaining unit A, which consisted of
workers in bands
A up to C3. Bargaining unit “B” included
bands C4 and D. SANEC ‘extended’ the 7.5 % to C4 band,
but not
to band D.
[5]
D band
employees got the lesser increase of 5.5%
[8]
To bring the grievance about this differentiation between the rest of
the workforce
and D band within the jurisdiction of the CCMA, section
186(2)(
a
) was invoked by PWU, and the allegation was made that
the conduct of SANEC was an unfair labour practice. The heads of
argument
filed on behalf of PWU are unequivocal in this regard.
[9]
The law on what constitutes benefits as contemplated by section
186(2)(
a
)
of the LRA was held, in
Apollo
Tyres
SA
(Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
& others (Apollo),
[6]
at
[50] - [51] to be an existing entitlement:
‘
[50]
….
In
my judgment 'benefit' in s 186(2)
(a)
of
the Act means existing advantages or privileges to which an
employee is entitled as a right or granted in terms of
a policy or
practice subject to the employer's discretion.
In as far
as
HOSPERSA
,
GS4
Security
and
Scheepers
postulate
a different approach they are, with respect, wrong.
[51]
This approach will also put paid to the anomaly created by
HOSPERSA
.
An employee who wants to use the unfair labour practice jurisdiction
in s 186(2)
(a)
relating to promotion or training does not
have to show that he or she has a right to promotion or training in
order to have
a remedy when the fairness of the employer's conduct
relating to such promotion (or non-promotion) or training is
challenged.
On the other hand, where an employee wants to use the
same remedy in relation to the provision of benefits such an employee
has
to show that he or she has a right or entitlement sourced in
contract or statute to such benefit.”
(Emphasis added)
[10]
Plainly the contention by PWU is astonishing. What is the
reasoning offered to support it?
[11]
The award upheld the contention. The incoherency of the award
presents a challenge to comprehension.
When it grapples with the
facts, it seems to articulate this rationale:
10.1
No collective bargaining took place in
respect of band D.
10.2
Ergo
, the
change in the wage rates in band D was a unilateral decision by the
Management.
10.3
This unilateral decision was made in terms
of a “policy” of SANEC.
10.4
The “policy” in question was
the decision to apply a sliding scale to wage increases, in that
year.
10.5
Ergo
,
the increase in wages constitutes a benefit as contemplated by
section 186(2)(
a
)
of the LRA.
10.6
Therefore, the CCMA has jurisdiction.
[12]
The reasoning is fundamentally flawed. It constitutes, in part, a
series of
non sequiturs
. The elevation of an
ad hoc
decision to grant different percentage increases into a “policy”
is fatuous. The approach seems to have been influenced
by the
decision in
Apollo
which articulates the idea that a benefit
as contemplated by section 186(2)(
a
) is something which can be
conferred pursuant to a practice or policy. It does not follow that a
“policy” decision
of the management to grant differential
wages increases in a particular year is a “policy” in the
sense of a practice
or a policy as described in
Apollo
.
Moreover, the notion that a benefit can form part of remuneration,
itself uncontroversial, seems another influence; but plainly,
that
notion cannot be harnessed to support the conclusion reached on these
facts. Another notion that seems to have influenced
the conclusion is
that the employer’s consultation with another ‘minority
union’ (i.e. NEHAWU as regards bands
C4 and D which reside in
bargaining unit “B”) was unfair, presumably to the D
band. Why this is so is not stated. The
award also gives no hint of
the source of the evidence of this ‘fact’ relied upon to
state this observation. Lastly,
it may be that the critical element
in the flawed reasoning is that the commissioner seemingly equated a
decision made in consequence
of a discretion reserved to management
as the antithesis of collective bargaining and
ergo
, if giving
money to employees is not the result of collective bargaining, it
must follow that it is a benefit. Plainly that is
incorrect; a grant
of a “benefit” is not the flip-side of a collective
agreement derived from collective bargaining.
[13]
The Labour court in reviewing the award on the jurisdictional point,
confined itself to stating that
the reasons advanced by the
commissioner were unsound. It seems that the rationale in the
judgment is that a dispute over a wage
increase cannot be anything
other than a dispute of interest.
[7]
This was a correct stance to adopt on these facts. To construe a
unilateral wage increase
per
se
as a benefit is unsustainable; the unilaterality of the grant cannot
convert the increase into a benefit.
[14]
The Labour court, paradoxically, having found that the CCMA had no
jurisdiction to hear the matter
then decided the question of whether
SANEC had indeed committed an unfair labour practice. This was
inappropriate; logically, if
the issue ought not to have been
litigated in the CCMA, there cannot be a judicial pronouncement on
the very issue which may not
be heard. That part of the judgment
cannot, therefore, enjoy any standing other than an
obiter dictum
.
[15]
In argument on behalf of PWU, a thesis was advanced that NEHAWU and
SANEC had concluded a collective
agreement which was then, “outside
the statutory framework” extended to bargaining unit “B”
and because
this act of extension could have no standing in law, the
grant could only be construed as a unilateral act by SANEC, which
was,
ipso facto
, not derived from the dynamics of collective
bargaining, and as such, was therefore “arbitrary capricious
and inconsistent”
which therefore meant that a dispute of right
arises, as encapsulated by section 186(2)(
a
) of the LRA.
In my view, this thesis is without merit. The steps in the argument
simply do not follow on from one another.
The concept of a “benefit”
as used in section 186(2)(
a
) is a term of art, which as cited
above, has been circumscribed in the case-law.
[16]
Accordingly, the appeal on this aspect must fail.
The Costs
[17]
The Labour Court ordered PWU to pay the costs. PWU has appealed
against that order. No explanation
was stated in the judgment why
that costs order was appropriate. The continuing relationship between
PWU and SANEC is a factor
which would tend to mitigate against such
an order. On the basis of the approach in
Zungu
,
[8]
the order must be set aside.
[18]
As regards the costs on appeal, the efforts of PWU to defend the
award, however frail the merits, cannot
be branded as inappropriate.
There shall be no costs order in this court either.
The
Order
(1)
The appeal is, in part, dismissed, and in
part, upheld.
(2)
The order
a
quo
that the CCMA has no jurisdiction
in the dispute is confirmed.
(3)
The costs order made in the court
a
quo
is set aside.
___________________
Sutherland
JA
___________________
Davis
JA
____________________
Savage AJA
APPEARANCES:
FOR
THE APPELLANT:
Adv P Buirski
Instructed
by Deon de Bruyn Attorneys.
FOR
THE FIRST RESPONDENT:
P Maserumule and N Mbuyisa, of Maserumule
Attorneys
[1]
This
appeal has been addressed by the court without the benefit of oral
argument in accordance with the agreement of the parties,
a
circumstance occasioned by the national lockdown resulting from the
covid 18 pandemic.
[2]
Section
186(2)(
a
):
'Unfair
labour practice'
means
any
unfair
act or omission
that arises between an employer and an
employee
involving-
(a)
unfair
conduct
by the employer relating to the promotion, demotion, probation
(excluding
disputes
about
dismissals for a reason relating to probation) or training of
an
employee
or
relating
to the provision of benefits to an
employee
;
(emphasis
supplied
)
[3]
The
case bristles with several other issues which are unnecessary to
traverse. The only issue which definitively disposes
of the
dispute is the jurisdictional issue.
[4]
Coin
Security Group (Pty) Ltd v Adams & others
(2000)
21 ILJ 924 (LAC);
see
too:
National
Union of Metalworkers of SA & others v Bader Bop SA (Pty)
Ltd & another
(2003)
24 ILJ 305 (CC) at [52].
[5]
The
workers in band C3 were not the subject matter of the collective
bargaining in respect of the bargaining unit “A”.
An
“extension”, properly construed is one which satisfies
the provisions of section 23 of the LRA. It was common
cause that
the section 23 requirements had not been met. The conduct of SANEC
was thus, in this context, “informal”.
[6]
(2013)
34 ILJ 1120 (LAC).
[7]
See:
SAUJ
v SABC
[1999]
11 BLLR 1137
(LAC) at [17].
[8]
Zungu
v Premier, Kwazulu-Natal
(2018)
39 ILJ 523 (CC):
[23]
….The correct approach in labour matters in terms of the LRA
is that the losing party is not as a norm ordered
to pay the
successful party’s costs. Section 162 of the LRA governs the
manner in which costs may be awarded in the Labour
Court. Section
162 provides:
‘
(1)
The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2)
When deciding whether or not to order the payment of costs, the
Labour Court may take into account —
(a)
whether
the matter referred to the Court ought to have been referred to
arbitration in terms of this Act and, if so, the extra
costs incurred in referring the matter to the Court; and
(b)
the
conduct of the parties —
(i) in
proceeding with or defending the matter before the Court; and
(ii) during
the proceedings before the Court.’
[24] The
rule of practice that costs follow the result does not apply in
Labour Court matters. In
Dorkin
, Zondo JP explained the
reason for the departure as follows:
‘
The
rule of practice that costs follow the result does not govern the
making of orders of costs in this court. The relevant statutory
provision is to the effect that orders of costs in this court
are to be made in accordance with the requirements of the
law and
fairness. And the norm ought to be that costs orders are not made
unless the requirements are met. In making decisions
on costs orders
this court should seek to strike a fair balance between on the one
hand, not unduly discouraging workers, employers,
unions and
employers’ organizations from approaching the Labour
Court and this court to have their disputes dealt
with, and, on the
other, allowing those parties to bring to the Labour Court and this
court frivolous cases that should not be
brought to court.’
[25]
In this matter, there is nothing on the record indicating why
the Labour Court and Labour Appeal Court awarded costs
against
the applicant. Neither court gave reasons for doing so. It seems
that both courts simply followed the rule that costs
follow the
result. This is not correct.
[26]
In the result, the Labour Court and the Labour Appeal Court erred
in not following and applying the principle in labour
matters
as set out in
Dorkin
.
The courts did not exercise their discretion judicially when
mulcting the applicant with costs. This court is therefore entitled
to interfere with the costs award. Taking into account the
considerations of the law and fairness, it will be in accordance
with justice if the orders of costs by the Labour Court and
Labour Appeal Court are set aside and each party pays his or
her own
costs. With regard to costs in this court, there will be no order as
to costs”.