About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2020
>>
[2020] ZALAC 35
|
|
Mthashana FET College v Education Labour Relations Council and Others (DA2/2017) [2020] ZALAC 35; (2020) 41 ILJ 2594 (LAC); [2020] 11 BLLR 1116 (LAC) (14 July 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
No: DA2/2017
In
the matter between:
MTHASHANA
FET COLLEGE
Appellant
and
THE
EDUCATION LABOUR RELATIONS COUNCIL
First
Respondent
MLUNGISI
SABELA N.O.
Second Respondent
CUTHBERT
THEMBINKOSI BUTHELEZI
Third Respondent
Heard:
14 May 2020
Delivered:
14 July 2020
Summary:
Practice and
Procedure---Jurisdiction---Education Labour Relations Council’s
jurisdiction to arbitrate residual unfair labour
practice----scope of
bargaining council in terms of its constitution and collective
agreement limited to disputes concerning educators----employee
assistant campus manager not an educator----Education Labour
Relations Council not having jurisdiction. Appeal upheld.
Coram:
Waglay JP, Phatshoane ADJP, and Murphy AJA
Judgment
PHATSHOANE
ADJP
[1]
This is an appeal, with leave of this Court, against part of the
judgment and order
of the Labour Court (
per
Cele J), handed
down on 26 May 2016, dismissing the review application with costs and
making an arbitration award, issued on 31
March 2014 under Case No:
ELRC009/13/14KZN by Commissioner Mlungisi Samela (“the
commissioner”), the second respondent,
an order of the Labour
Court.
[2]
The appeal was initially set down for 21 August 2019 but was struck
off the roll with
costs due to a defective record that had been filed
by the appellant. On 18 October 2019 the appellant lodged an
application for
the reinstatement of the appeal because it was of the
view that it had corrected the disorderly filed record. However, not
much
has changed because the record is still in a troubling state of
disarray. To mention but few:
2.1
Contrary to Rule 5(12) of the Rules of this Court the record contains
written heads of argument filed during
the arbitration proceedings at
the Education Labour Relations Council (“the ELRC”) and
the transcribed oral argument
during the Labour Court review;
2.2
Some of the important documents, for example, the whole Constitution
of the ELRC, Collective Agreement No:
1 of 2006 does not form part of
the record;
2.3 The
replying affidavit in the review is also not before us i.e. if it was
ever filed;
2.4 The
letter written by General Secretary of the ELRC dated 04 November
2014 referred to in the judgment of the Labour
Court, purportedly
clarifying the issue of jurisdiction, is missing from the record.
The
paucity of information and the manner in which this was presented by
the appellant is deserving of stern deprecation. There
can be no
excuse, particularly where the appellant was afforded, on its own
volition, two months to rectify the substandard record.
[3]
Ms Naidoo, for Mr Cuthbert Thembinkosi Buthelezi, the third
respondent, challenged
the sloppy record of this appeal on multiple
grounds and urged that the reinstatement of the appeal be refused.
Her other objection
is that the Notice of appeal was not properly
served on Mr Buthelezi albeit it forms part of the record before us.
[4]
The appeal lies within a narrow scope which concerns the jurisdiction
of the ELRC
to determine the unfair labour practice dispute filed
with it by Mr Buthelezi. I am of the view that this pure legal or
technical
issue can be disposed of on the record as it stands. It is
in the interest of justice that this appeal be finally determined and
allow substance to trump form. I can also conceive of no prejudice in
reinstating the appeal. It is so ordered.
[5]
Mr CT Buthelezi, the third respondent, took up employment with
Mthashana FET College,
the appellant, on 02 May 2012 as an assistant
campus manager Kwa-Gqikazi Campus including, later on, Nongoma
Campus. On 26 September
2012 he was appointed an acting campus
manager/principal of the appellant.
[6]
Approximately seven months later, on 16 April 2013, Mr Buthelezi was
placed on precautionary
suspension with full pay pending an
investigation and a disciplinary hearing into allegations of
misconduct which included absenteeism
and maladministration. On 08
May 2013 he, aggrieved by this suspension, lodged an unfair labour
practice dispute in terms of s186(2)(
b
) of the Labour
Relations Act, 66 of 1995 (“the LRA”) with the ELRC. The
dispute was conciliated pursuant to which process
it came before the
Commissioner for arbitration. Belatedly, in its closing submission at
the arbitration, the appellant challenged
the jurisdiction of the
ELRC to determine the dispute on the basis that Mr Buthelezi, as a
campus manager, did not fall within
the purview of its registered
scope.
[7]
On 31 March 2014 the Commissioner issued an award in which he
concluded that the word
“staff” in s 54(1) of the
Continuing Education and Training Act (previously known as Further
Education and Training
Colleges Act), 16 of 2006 (“CET Act”)
was inclusive of support staff. Furthermore, that the ELRC and the
Public Service
Coordinating Bargaining Council (PSCB), as
contemplated in s 54(3) of the CET Act, continued to be the
bargaining councils that
determined salaries and conditions of
employment of the employees until such time as the parties would have
agreed to establish
a new structure relevant to the public colleges.
In any event, the Commissioner found that the appellant was a
signatory to various
collective agreements within the ELRC and ought
to have been knowledgeable that the parties to these agreements:
“
Have not yet agreed to an establishment of a new structure
relevant to public colleges. Therefore, the Education Labour
Relations
Council has jurisdiction to deal with the dispute
.”
[8]
On the merits of the dispute, the Commissioner found that the
appellant did not provide
reasons for the suspension of Mr Buthelezi
and thus committed an unfair labour practice against him. The
Commissioner awarded him
six months’ remuneration as
compensation and costs of the arbitration.
[9]
Displeased with the outcome of the arbitration the appellant lodged
an application
for the review and setting aside of the Commissioner’s
award with the Labour Court. In the main, it persisted with the
attack
on the jurisdictional finding by the Commissioner which the
Labour Court found no basis to upset. Similarly, the Labour Court
concluded
that the ELRC was clothed with the necessary jurisdiction
to resolve the dispute between the parties. Consequently, it held
that
the review was without any merit and dismissed it with costs.
[10]
Before us it was contended, for the appellant, that the Labour Court
erred in concluding as it did.
The review standard, in this case,
which hinges on the jurisdiction, is one of correctness as opposed to
the reasonableness of
the Commissioner’s decision.
[11]
The Commissioner’s ruling, which found favour with the Labour
Court, is largely predicated on
s 54(1)(3) of the CET Act as support
for the conclusion that the ELRC had the requisite jurisdiction to
determine Mr Buthelezi’s
unfair labour practice dispute.
Section 54 falls under Chapter 9 of the CET Act which governs
transitional and other arrangements.
It provides:
‘
54 Staff:
(1) The principal,
vice-principal, lecturers and support staff employed by the State
continue to be so employed until appointed
in terms of this Act.
(2)
Section 197
of
the
Labour Relations Act applies
to the appointment or transfer as
contemplated in subclause (1).
(3) The Education
Labour Relations Council and the PSCBC continue to be the bargaining
council to determine salaries and
conditions of employment until the
parties agree to establish a new structure relevant to public
colleges.’
[12]
What is immediately striking is that, on the plain reading of
s 54
,
nothing is expressly mentioned pertaining to the authority of either
the PSCBC or the ELRC to determine the dispute of the kind
referred
by Mr Buthelezi to the ELRC. Properly construed
s 54
enjoins the
PSCBC and ELRC to determine salaries and employment conditions of the
employees. Nothing more. The statutory architecture
for dispute
resolution under the CET Act is contained in s 21 which provides in
part:
‘
21 Dispute
resolution between college, lecturers and support staff:
(1)
If a dispute arises about the payment or employment conditions of a
member of the staff,
employed in terms of section 20 (4), any party
to the dispute may refer the dispute in writing to-
(a)
a bargaining council established in terms of the
Labour Relations
Act, if
the employer or employee parties to the dispute fall within
the registered scope of a bargaining council
; or
(b)
the Commission for Conciliation, Mediation and Arbitration
established by
section 12
of the
Labour Relations Act, if
no
bargaining council has jurisdiction.’
[13]
To buttress her argument that the ELRC had jurisdiction, Ms Naidoo,
counsel for Mr Buthelezi, relied
on Clause 8.4 of the ELRC Collective
Agreement No: 5 of 2013 which stipulates that “lecturers”
refers to staff employed
to perform a teaching function and includes
office-based specialists and a campus manager. She further argued
that the ELRC Collective
Agreement No: 1 of 2010 and Collective
Agreement No: 5 of 2008, as it were, conferred jurisdiction upon the
ELRC to resolve the
dispute between the appellant and Mr Buthelezi.
[14]
The primary function of bargaining councils is to regulate relations
between management and labour
in the sectors over which they have
jurisdiction by concluding collective agreements. The bargaining
councils are also entrusted
with the responsibility to settle
disputes between parties falling within their registered scope.
[1]
A Constitution of a bargaining council should capture a set of
fundamental principles which governs it.
[2]
A bargaining council derives its jurisdictional mandate, to resolve
and/or determined disputes referred to it, from its Constitution.
[15]
In this case the persons over whom the ELRC has jurisdiction appear
in Clause 6 of its Constitution,
Collective Agreement No:1 of 2006 as
follows:
‘
6.
Constitutional
scope
The registered scope of
the Council extends to the State in its capacity as employer and
those
employees
in respect of which the
Employment of
Educators Act, 1998
, applies.’
[16]
It should be borne in mind that the registered scope of the ELRC is
also echoed in Schedule 7
Part D
Item 16(2) of the LRA, in these
terms:
‘
2
The
registered
scope of the Education Labour Relations Council is the State and
those employees in respect of which Educators’ Employment
Act,
1994 (Proclamation 138 of 1994) applies.’
[3]
[17]
In the definition section of the Constitution of the ELRC, Collective
Agreement No: 1 of 2006, an ‘Employee’
means an educator
as defined in the Employment of Educators Act 76 of 1998 (“EOEA”).
The EOEA does not define the word
employee. However, the purpose of
the EOEA, as set out in its preamble, is “to provide for the
employment of educators by
the State; for the regulation of the
conditions of service, discipline, retirement and discharge of
educators; and for matters
connected therewith”. In light of
this, it can safely be concluded that the employees referred to in
the constitutional scope
of the ELRC are educators. An educator is
defined in the EOEA as “
any person who teaches, educates or
trains other persons or who provides professional educational
services, including professional
therapy and education psychological
services, at any public school, departmental office or adult basic
education centre and who
is appointed in a post on any educator
establishment under this Act.”
[18]
It follows that the ELRC can only deal with disputes involving
educators as defined. Mr Buthelezi admitted
that he was neither a
lecturer or an educator but was employed as an assistant campus
manager, therefore part of the “support
staff”. The
so-called support staff are not included in Clause 6 of the
Constitution of the ELRC.
[19]
I am of the view that the ELRC’s Constitution supersedes other
collective agreements concluded
in its chamber. Ordinarily, a
collective agreement must be concluded in consonance with the
Constitution of a bargaining council
and ought not to be in conflict
with it. The various collective agreements referred to by Ms Naidoo
cannot be construed as purporting
to confer jurisdiction on the ELRC
which it otherwise does not have. There is no provision in Collective
Agreement No: 1 of 2006
that extends the definition of an employee to
other categories of employees other than the educators. To hold
differently may render
the Constitution of the ELRC an emasculate
legal instrument. The ELRC could not act as a dispute resolution
forum in respect of
parties that fell outside its constitutional
registered scope as in this case.
[20]
It is important to mention that the ELRC’s Constitution,
Collective Agreement No:1 of 2006, lapsed
on 23 August 2016. It was
replaced by the Collective Agreement No 6 of 2016. In the latest
Constitution the constitutional scope
of the ELRC in Clause 6 has
been extended to include
inter alia
, “
the State in
its capacity as the employer as represented by Department of Higher
Education & Training (DHET) and employer/s
in the Technical
Vocational Education & Training (TVET) sector and those employees
(
the educator/management categories of employees
)
of which the Further Education & Training Colleges Amendment ACT
(FETCA) 2012, applies
.”
[21]
The new Constitution does not alter the position relating to this
appeal. The Collective Agreement
No: 1 of 2006 reflected the terms
and conditions which applied when the dispute between the appellant
and Mr Buthelezi was determined
by the ELRC in March 2014. The
collective agreements are binding as set out in s 31 of the LRA. They
ought to be enforced and given
effect to by the courts and
arbitrators. In
SA
Local Government Association v Independent Municipal & Allied
Trade Union & others,
[4]
this Court emphasised the importance of adhering to the Constitution.
It held:
‘
[36]….(A)
practice cannot trump the express and unambiguous terms of a
constitution. The decisions taken by the drafting
team clearly have
far-reaching implications, financial and otherwise.
If this degree
of deviation from the express provisions of the constitution is
tolerated it would effectively write the decision-making
requirements
set out in clause 16 out of existence
.
The constitution of the
third respondent should not, without justification, be frittered
away by practice or judicial decree
. This would indeed be a
dangerous path to take because the parties testified that the
intention was always to request the Minister
of Labour to extend the
agreement to non-parties to the agreement that are within the
registered scope of the third respondent.’
(My own
emphasis)
[22]
On the basis of the aforegoing analysis, it follows that the Labour
Court was incorrect in holding
that the ELRC had jurisdiction to
determine Mr Buthelezi’s unfair labour practice dispute as at
31 March 2014 when the ELRC
adjudicated upon the dispute.
[23]
The question of costs in this Court is determined according to the
requirement of the law and fairness.
Even though the appellant has
achieved substantial success, it should be deprived of its costs in
respect of the proceedings in
the Labour Court and in this Court
because of its gross ineptitude in the filing and presentation of a
proper record of the proceedings.
I make the following order.
Order
1.
The appeal is upheld with no order as to costs;
2.
The order of the Labour Court is set aside and substituted with the
following:
“
1.
The arbitration award issued on 31 March 2014 under Case No:
ELRC009/13/14KZN by Commissioner Mlungisi
Samela, the second
respondent, under the auspices of the Education Labour Relations
Council (“the ELRC”) is reviewed
and set aside on the
basis that the ELRC lacked jurisdiction to conciliate and arbitrate
the unfair labour practice dispute referred
to it by Mr Cuthbert
Thembinkosi Buthelezi.
2.
No order is made as to costs.”
_______________________
MV
Phatshoane ADJP
Waglay
JP and Murphy AJA concur in the judgment of Phatshoane ADJP
APPEARANCES:
FOR
THE APPELLANT:
Adv T Kadungure
Instructed
by Thusini Attorneys
FOR
THE THIRD RESPONDENT: Ms A Naidoo
Instructed by Angeni
Naidoo Law Firm
[1]
John
Grogan, Workplace Law, 13
th
Ed,2020, Chapter 20-p 353, (Jutastat e-publications).
[2]
Section
31 of the LRA outlines what must be provided for in a Constitution
of every Bargaining Council.
[3]
The
Educators’ Employment Act, 1994 (Proclamation 138 of 1994), is
the precursor of the
Employment of Educators Act 76 of 1998
(“EOEA”)
and
was repealed in terms of
s 37(1)
of the EOEA.
[4]
(2014)
35 ILJ 2811 (LAC) at 2820 para 36.