Maritime Industries Trade Union of South Africa and Others v Transnet Limited and Others (PA5/01) [2002] ZALAC 19 (20 September 2002)

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[2002] ZALAC 19
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Maritime Industries Trade Union of South Africa and Others v Transnet Limited and Others (PA5/01) [2002] ZALAC 19; [2002] 11 BLLR 1023 (LAC); (2002) 23 ILJ 2213 (LAC) (20 September 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No: PA5/01
In
the appeal between
MARITIME
INDUSTRIES TRADE UNION 1
st
Appellant
OF
SOUTH AFRICA
O’BREIN
AND OTHERS 2
nd
and further Appellants
and
TRANSNET
LIMITED
First
Respondent
COMMISSION
FOR CONCILIATION Second Respondent
MEDIATION
AND ARBITRATION
JOHAN
NIEHAUS N.O Third Respondent
_______________________________________________________________
JUDGEMENT
_______________________________________________________________
ZONDO
JP
Introduction
[1] The
first appellant in this appeal is the Maritime Industries Trade Union
of South Africa (
“the
union”
).
The second and further appellants (
“the
individual appellants”
)
are some of the union’s members who are employed as tugmasters by
Transnet Limited, the first respondent, at Portnet, which has
been
described in the papers as a division of the first respondent. The
third respondent (
“the
commissioner”
)
is a commissioner in the employ of the Commission for Conciliation,
Mediation and Arbitration (
“the
CCMA”
)
which is the second respondent in this appeal.
[2] A
dispute arose between the appellants and the first respondent
concerning the obligations, if any, of the first respondent to,
as it
was put by the appellants, afford the individual appellants training
necessary for them to acquire a qualification known as
the Standard
Training Certificate for Watchkeeping (
“the
STCW”
).
The appellants alleged that the first respondent was contractually
obliged to afford them an opportunity to undergo the said training
but was refusing to do so. The first respondent disputed the alleged
contractual obligation, stated that in any event it had provided
them
with training that enabled them to qualify for the job that they had
been employed to do and there was no warrant for it to
incur the
large costs that would go with the said training. The appellants
claimed that the first respondent’s conduct in this
regard
constituted an unfair labour practice as defined in item 2(1)(b) of
schedule 7 to the Labour Relations Act, 1995 (Act no 66
of 1995)
(
“the
Act”
).
They sought that the first respondent be compelled to afford them the
training they sought. Item 2(1)(b) of schedule 7 provides
that, for
purposes of item 2, an unfair labour practice means
“any
unfair act or omission that arises between an employer and an
employee, involving -
(a) ....
(b) the
unfair conduct of the employer relating to the promotion, demotion or
training of an employee or relating to the provision
of benefits of
an employee;”
[3] The
appellants referred the dispute to the CCMA for conciliation.
Thereafter they requested, in terms of the provisions of item
3(4)(b)
of schedule 7, that the dispute be arbitrated. Item 4(2) of schedule
7 confers on the arbitrator dealing with such a dispute
power to
determine it
“on
reasonable terms”.
The CCMA appointed the commissioner to arbitrate the dispute. The
commissioner found in favour of the appellants and issued a detailed
award in the appellants’ favour and against the first respondent.
The award is now reported as
Maritime
Industries Trade Union of SA & others v Portnet (2000)21 ILJ 2519
(CCMA).
It
is not necessary to reproduce the terms of the award in this
judgement. Aggrieved by the award, the first respondent brought an
application in the Labour Court to have that award reviewed and set
aside. The Labour Court granted the application. The judgement
of the
Labour Court is reported as
Transnet Ltd v CCMA & others (2001)22 ILJ 1193 (LC)
.
With the leave of that Court, the appellants now appeal to this
Court against that judgement. Before dealing with the appeal, it
is
necessary to set out the facts of the matter and some of the evidence
that was led in the arbitration proceedings before the commissioner.
The
facts
[4] Through
Portnet, the first respondent provides certain services at South
African ports to both local and foreign shipping vessels.
One of the
services that it provides is the operation of tugs that are used to
tow ships into and out of harbours. They are operated
by tugmasters.
[5] Prior
to 1997 the qualification that was required for one to be a tugmaster
was the STCW. This qualification enabled a tugmaster
to operate a
tugboat both within a port and at sea. Naval officers could not be
employed by Portnet as tugmasters at the time because
their
qualifications were not recognised. The first respondent suffered a
serious shortage of tug masters in 1997. It entered into
discussions
with the Department of Transport which had the statutory regulatory
power in regard to maritime safety at the time, with
a view to
finding a solution to the problem. The result of the discussions was
that the Department of Transport permitted the first
respondent to
employ naval officers under certain conditions. It did this by way of
a circular that it issued on the 24
th
April 1997 that was known as Marine Circular no 10 of 1997.
[6] The
content of marine circular no 10 is of critical importance in this
matter. For this reason it is necessary that it be reproduced
in
full. It reads thus:
“
MARINE
CIRCULAR NO. 10 OF 1997
TO
ALL PRINCIPAL OFFICERS
THE
EMPLOYMENT OF NAVAL OFFICERS ON PORTNET TUGS
In
the continued development of its policy to allow the employment of
naval officers on commercial vessels and in discussions with
Portnet, the Department has agreed to their employment on Portnet
tugs subject to the following conditions:
(a) the
employment is permitted on exemption in terms of Section 83 of the
Merchant Shipping Act;
(b) it
is initially for a period of six months in the position as mate of a
tug. This six months covers the Portnet training phase.
Thereafter,
it is as master on exemption if Portnet reports favourably on the
training phase
;
(c) because
the officer does not hold a STCW equivalent certificate, the
exemption is for port limits only and not for voyages to
sea;
(d) the
officer concerned must have at least two years’ bridge watchkeeping
experience on naval vessels of more than 24m in length,
a medical
certificate and have passed a DOT eyesight examination. Furthermore,
he must have held a naval bridge watchkeeping board
examination
certificate during the period he gained the two years’ experience
mentioned above; and
(e) the
application for exemption is to come from Portnet.
The
above is an interim measure. Portnet is developing a training
programme and plan to take officers through from rating to master.
There will be a programme for certificates limited to port
operations and another to enable the officer to obtain an STCW
endorsement
to his or her certificate of competency.
It
is the aim of the programme to slot naval officers into these
training programmes and in so doing dispense with the need for
exemptions. Should a Naval Officer want to obtain a Deck Officer
certificate of competency with STCW endorsement, the current system
and practice calls for him or her to show proof of the following for
the issue of a Deck Officer Class 3 certificate of competency.
(a) 12
months’ sea service on trading vessels on long voyages. Those
officers who have sea service on fleet replenishment ships
such as
the “Drakensberg”, may apply to the senior examiner for masters
and mates for such time to be recognized;
(b) a
pass in the examinations “Naval Architecture” and “Cargo Work
and Shipping Practice” for D.O. Class 3;
(c) a
pass in the DOT eyesight examination;
(d) equivalency
or a pass in:
(i) survival
craft;
(ii) efficient
deck rating;
(iii) first
aid at sea;
(iv) fire
fighting; and
(v) electronic
navigation systems; and
(e) at
least 2 years’ sea service as a watchkeeping officer whilst holding
a naval bridge watchkeeping board examination certificate.
The
above is as matters now stand. The current revision of the
Examination and Manning Regulations will accommodate the above and
place it on a more permanent footing.
Please
do not hesitate to contact Chief Director Shipping or Director
Shipping Competency should you require further clarification
or
explanation
For
DIRECTOR-GENERAL: TRANSPORT”
[7] Subsequent
to the issuing of circular no 10 the first respondent caused an
advertisement to be published in the Sunday Times for
vacant posts of
tug masters. In this matter the content of the advertisement is also
important. For that reason an example of the
text of such
advertisement is reproduced hereunder. It reads:
“
PORTNET,
a division of Transnet Limited, manages and controls South Africa’s
commercial ports. The following vacancies exist within
the Marine
Department at Richards Bay:
TUG
MASTER
(4
POSTS)
Applicants
should be in possession of a recognised South African Certificate of
Competency as Deck Officer (Minimum Class 5 with a
command
endorsement), or an accepted and approved Naval Watch Keeping Officer
Certificate. Experience in the handling of sea going
craft will be an
advantage.
The
salary is attractive and includes an excellent range of large-company
fringe benefits. Opportunities for self-realisation and
career
advancement within the Group exist.
Interested
persons can forward an application accompanied by a detailed CV.
"
[8] The
individual appellants responded to the advertisements in the
newspapers. They were interviewed. The first respondent then
sent
them offers of employment by way of letters. In due course the first
respondent proceeded to conclude written contracts of employment
with
the individual appellants. Clause 18.1 of the contracts of employment
of the individual appellants was to the effect that the
“agreement
constitutes the entire service agreement between the parties and
substitutes any previous agreements that may have been
entered into
between the parties and any such previous agreement shall have no
further effect.”
Clause 18.2 reads thus:
“No
variation or amendment of this agreement shall have any legal effect
unless reduced to writing and signed by the parties”.
[9] The
offers of employment had an annexure
“A”
which was the remuneration package. The last sentence of annexure
“A”
stated that
“(t)his
appointment is also subject to you obtaining a Tug Handling
Certificate within 12 months of your appointment as
Tugmaster-in-Training”.
The first respondent told the individual appellants in their letters
of appointment that
“(t)his
offer of employment is subject thereto that you comply with the
requirements of Marine Circular no 10 of 1997 in respect
of the
employment of Naval Officers on Portnet tugs.”
[10] Soon
after their employment, the individual appellants underwent training
for six months as mates of tugmasters as required by
marine Circular
no 10. Thereafter they were granted exemptions in terms of sec 4(a)
and 85 of the Merchant Shipping Act, 1951 (Act
57 of 1951). The
exemptions were granted by the South African Maritime Safety
Authority (
“SAMSA”
)
which had, in the meantime, taken over from the Department of
Transport as the regulatory body in respect of maritime safety. The
granting of exemptions was an interim measure pending the
promulgation by SAMSA of regulations that would be binding on all
operations
in the industry with regard to the employment of ex-naval
officers. The exemptions were extended from time to time.
[11] In
due course the first respondent developed a qualification called the
Port Operations Certificate. That certificate qualified
its holders
to operate tugs only within ports whereas the STCW certificate
qualified its holders to go to sea as well. Furthermore,
the STCW
qualification is an internationally recognised qualification whereas
the Port Operations Certificate does not enjoy international
recognition. The first respondent required the individual appellants
to sit for the examination of the Port Operations Certificate.
[12] The
individual appellants adopted the attitude that the first respondent
was obliged to afford them the training necessary for
them to acquire
the STCW and were not prepared to sit for the examinations of the
Port Operations Certificate. The first respondent
told them that it
was not obliged to train them to acquire the STCW. It said that there
was no warrant for the costs that it would
have to incur in providing
them with the training necessary for the STCW when it had already
developed a qualification that met its
needs and enabled the
individual appellants to be tugmasters. It emphasised that the
individual appellants had been appointed to
be tugmasters and the
qualification that it had developed would qualify them to be tug
masters. It threatened them with dismissal
if they did not sit for
and passed the examination. Ultimately, the individual appellants
relented and wrote the examinations. Except
for one, they all passed
and were then employed by the first respondent as tugmasters. As
already stated above, a dispute then arose
between the parties on
this and, in due course, the dispute was the subject of arbitration
proceedings.
Arbitration
proceedings
[13] At
the commencement of the arbitration the commissioner urged the
parties to try and agree what the dispute or issues before
him were
and what he was called upon to decide. A discussion ensued that led
to the commissioner making a statement that sought
to identify the
issues that he was called upon to decide. None of the representatives
indicated to him that his formulation of the
issues did not correctly
reflect the issues that he was called upon to decide. Even after the
arbitration none of the parties did
so. It, therefore, seems that it
can fairly be accepted that the commissioner’s statement was seen
by the parties as correctly
reflecting the issues he was called upon
to decide. He said that the issues were:.
(a) whether
or not there was an agreement that the individual appellants
“were
entitled to undergo the STCW training and,
(b) whether
[the respondent]’s conduct in not allowing the [individual
appellants] to undergo that training is in fact unfair looking
at the
totality of circumstances.”
[14] In
this Court the appellants have made it clear in par 44 of their heads
of argument that “
(a)
the appellants’ case as presented in the CCMA was premised squarely
on a claim that they were contractually entitled to undergo
STCW
training; (b) the parties in fact agreed that the existence or
otherwise of such an entitlement was the first issue to be determined
by the commissioner.”
In
par 50 of their heads of argument the appellants further stated that
“the
commissioner correctly identified as the core issue before him
whether the [individual appellants] were entitled to receive
training
for the STCW certificate in terms of their contracts of employment.”
In
par 52 of their heads they went on to state that
“(t)he
dispute can accordingly not be described as anything other than a
dispute about the existence of an alleged right to training.”
[15] The
appellants led the evidence of Mr Barington-Smith, Mr O’Brien, Mr
Purdon (wrongly spelt as Perlin in the CCMA record) and
Mr Keller.
The first respondent only led the evidence of Captain Van der Krol.
The commissioner concluded that it was a term or condition
of
employment of the individual appellants that the first
respondent
would afford them the training that they sought. He also held that
the first respondent had failed or refused to afford
them such
training. He concluded that such failure or refusal constituted
changing their conditions of service and that such conduct
on the
first respondent’s part was arbitrary, irrational and constituted
an unfair labour practice. He stated that in coming to
the conclusion
that such was their term or condition of employment, he had relied on
the advertisement, Marine Circular 10 and the
evidence of Messrs
O’Brien, Purdon , and Keller. It is therefore necessary to refer to
those parts of their evidence that seem
relevant to this issue.
Thereafter it will also be necessary to refer to portions of the
evidence of Captain Van der Krol.
Mr
O’Brien:
In his
evidence in chief Mr O’Brien did not give evidence suggesting that
in the interview he was promised that he would undergo
the STCW
training and on what basis or terms such training would be undertaken
nor did he give any such evidence under cross-examination.
There was
no re-examination. Accordingly there is no evidence that Mr O’Brien
gave which the commissioner could have relied upon
to conclude that
in Mr O’Brien’s interview an agreement was reached between Mr
O’Brien and the first respondent about the STCW
training. Mr
O’Brien testified that, after his appointment and during the
training period no mention was made of any training for
the STCW or
examinations or course which would have to be completed to comply
with Marine Circular No 10.
[16] Mr
O’Brien also testified to an impromptu meeting with Captain Van der
Krol at some stage where the issue of the individual
appellants
obtaining the STCW was discussed. He said that the captain had told
them that, if they wanted to go to sea in order to
obtain the STCW,
they could resign and do it in their own time. Mr O’Brien gave his
understanding of part of the contents of circular
no 10 as being that
the first respondent was going to establish two programmes and it was
going to be up to the employee to choose
which one he wanted to do.
Mr O’ Brien testified that in order to get the STCW, one had to do
“the
theoretical block at Technikon, you then go to sea to comply with the
minimum seatime required by SAMSA. On completion of those
two you can
then sit an examination.”
Under
cross-examination Mr O’ Brien testified that the provision in his
letter of appointment by the first respondent that such
offer was
subject to him complying with marine circular no 10 of 1997 in
respect of employment of Naval Officers on Portnet meant
that at some
stage or another
“we
have to comply.... either a Master Port Operations Certificate which
did not exist at that time or an STCW qualification.”
He
was then asked why it was necessary for them to comply with that. He
replied that that was in order for them to be able to
“legally
drive a tug without exemption”
.
He conceded that it was a Portnet tug that they were being enabled to
drive legally.
Mr
Purdon (spelt as Mr Perlin in the transcript)
[17] In
his evidence in-chief Mr Purdon was asked what was said at the
interviews that he attended. He replied that
“the
point of further training was brought up especially with respect to
class 3 certification.”
He went on to say:
“
It was mentioned that [the first respondent] would be sending us to
actually get the qualification. Class 5 Port Operations was
never
mentioned.”
It
is noteworthy that at this stage of his evidence Mr Purdon did not
say when it was said that they would be sent to obtain the
qualification
nor did he say on what basis they would be sent. He did
not say whether this would be on the basis of full-pay, part-payment
or on
the basis of unpaid leave.
[18] Mr
Purdon also testified that he was only short of six months’ seatime
for his class 3 certificate. He then stated that he
requested
permission to go to sea for an additional six months. He was told, he
said, that
“we
would be released but we needed to find our own boats.”
He
continued thus:
“I
enquired when it came to Unicorn, Unicorn informed me that I would
need an exemption from SAMSA to say that I could sail as a
Class 3
certificated person and Unicorn would actually send me on a tanker
course in order to sail. However, SAMSA was not willing
to give us
those dispensations so the possibility of going to sea with the
Unicorn was not available. The possibilities of going
to sea with
Safmarine, we were informed by them that Portnet has a training
programme with them and in order for us to go to sea
with them we
would need to get on some Portnet cadet training programme.
”
[19] It
is also important to note that Mr Purdon did not say in his evidence
that, when he was told that they would be released to
go to sea in
order to obtain the STCW but that they would have to find their own
boats, he protested and said that in terms of an
agreement with the
first respondent, the first respondent was obliged to either provide
the boats itself or to make the necessary
arrangements for him to get
a boat. Instead he proceeded to try and make arrangements on the
basis of what the first respondent had
said. That is not the conduct
of a person who believed that his contract of employment obliged his
employer to actually provide all
the necessary for that training.
[20] Within
the context of Marine Circular 10, Mr Purdon was asked whether there
was any indication that he would have an opportunity
to obtain the
STCW qualification. His reply was:
“
Yes
there was an effort from Portnet’s side to a specific point and
every time it was yes, you can go and all of a sudden there
were
reasons why we were not able to go to sea, either it was not in the
company’s interests, you cannot be released. The following
person
is not available or you cannot, you also have to go to the cadet
training programme. Every time you made some effort to further
yourself it was blocked somewhere.”
It is
important to observe that Mr Purdon did not give any evidence to show
that the reasons that were given to him at different stages
as to why
he could not be sent to training or the basis on which he could be
sent to training were not true or valid. The commissioner
has also
not said why those reasons should not be accepted as having been
genuine, true and valid.
[21] Mr
Purdon also gave evidence about the importance to him of obtaining
the STCW. He said that it would ensure his career advancement
within
the first respondent and mobility within the industry. He also said
that, although he was not willing to leave the first respondent,
the
STCW would ensure that he was not
“
stuck in one specific company for another 35 years until the age of
63.“
He
said that the Port Operations Certificate put him in the same job for
the next 35 years.
[22] Mr
Purdon also testified that the Bridge Watchkeeping Certificate was
discussed in his interviews as well as how much sea time
he required
for his Class 3 certificate. He then said:
“ that was basically the things that we discussed at my interview
with regard to training. Then it was they wanted to know how
much
further training Portnet would actually have to have before I had a
class 3 certificate.”
A little later his representative asked him this leading question :-
“So
there was considerable discussion, so you could say there was some
sort of meeting of minds?”
Not unexpectedly, Mr Purdon’s reply was in the affirmative. At some
stage during Mr Purdon’s evidence - in- chief the commissioner
warned Mr Purdon’s representative not to
“
put words in the witness’ mouth”.
He also told him that
“(a)t
the end of the day you are going to do your case a lot of harm
because I am going to take it into account when I make my award.”
It
is also important to observe that Mr Purdon never at any stage
testified that any representative of the first respondent had ever
said that the training would be provided on the basis that the first
respondent would alone bear all the costs and that during the
training he would be on full pay or what the position would be about
his salary during his training period.
Mr
Keller
[23] The
appellants’ representative asked Mr Keller
“to
give us a brief account [of] what took place at the interview
particularly regarding qualifications and training.“
Mr
Keller replied:
“I
know for Richards Bay. What they did after they interviewed us
describing the working conditions and how we are going to work
the
craft, etcetera ... and then after we have qualified they said they
will give us or we will have to go and write the class 5
ticket so
that we can go to sea as a watchkeeper.”
[24] When
asked by the commissioner to repeat the end portion of the above
evidence,
Mr
Keller said:
“After
we-well, what they told me there is that from Richard’s Bay that we
should write the class 5 ticket but that is the STCW
class 5 ticket
so we can go to sea as a watchkeeper on a merchant ship so we can get
the required seatime to get the class 3 tickets.”
Soon
after that he said that in the Port Elizabeth interview
“they
did not even make mention of the class 5 ticket. They just said well,
we will send you to sea so we can get the STCW ticket.”
[25] Mr
Keller also testified that on one occasion Captain Davies had told
him and others that they would give them permission to
go to sea on
condition that
“we
actually go and organise our own berths.”
He testified to attempts he had made to proceed with arrangements on
that basis but was told, it seems by third parties from whom
he was
trying to secure a berth, that Portnet had a training scheme and he
had to go on to the training scheme otherwise those third
parties
would not give him a berth. He testified that he then tried to get on
to the training scheme and was told by a Mrs Fitchley
on various
occasions that it was not in the first respondent’s best interests
“and
that was it.”
[26] At
a certain stage the appellants’ representative asked Mr Keller the
following question:
“
So what I want to know is when you were employed you were told that
you would be able to go to sea and get an STCW class 3 certificate.
Is that what you were saying?”
The answer came:
“Yes
that is correct.”
Then his representative went further and asked:
“Then
some period down the line when that was going to come to, actually
supposed to take place, they said no it was no longer in
their
interest. Is that what you? “
The
answer came:
“That
is correct.”
[27] Another
leading question followed from Mr Keller’s representative.
“So
there was a change, is that correct? You said there was a change?”
The answer:
“That
is correct”.
Then another leading question:
“In
your conditions?”
The answer was long this time but was not the answer suggested by the
question. The reply was:
“
Because
we actually went there to clarify the amount of seatime we still
require for SAMSA and I have got proof of that as well in
my personal
capacity and after presenting that evidence I said well, this is how
much I still require to get my Class 3 ticket then
I was told that it
is not in the company’s best interests to send us to sea, that a
Class 5 Port Operations would be sufficient
to meet the company’s
needs.”
The
representative then followed up:
“How
do you find this change?”
and the answer was:
“
I think it is unfair. We are not given a chance.”
[28] Mr
Keller testified also that there was a discussion at the local
bargaining forum to the effect that
“we
must take leave of absence and we will just be - we will be sent away
on duty so to speak. They will maintain our Tugmaster’s
salary and
go to sea, get the seatime and then come back and just carry on. “
No
clarification was given on who was going to maintain their salaries.
[29] Under
cross-examination Mr Keller was asked what his career prospects were
within Portnet when he took up his appointment. His
answer was that
Captain Davies had discussed with him that
“we
will spend a period as Tugmaster but there is opportunity for us to
become Pilots and that they will provide us with adequate
training to
actually become that and become pilots and to carry onto Port
Captain, etc.”
He was then asked if his case was that the first respondent had
changed his conditions of service and he answered in the affirmative.
He was then asked what those conditions of employment were. He
replied:
“Well,
future aspects for one, that we have at least got a future path, a
career path (inaudible). At the moment we have not got
that.”
Captain
Van der Krol
[30] Capt.
Van der Krol testified that Marine Circular No 10 was a document
addressed to Principal Officers to inform them that there
were two
options that could be followed in regard to the training, the one
being the Port Operations Certificate route and the other
being the
STCW route. He testified that the Port Operations Certificate allowed
the first respondent to do all its training in-house
whereas with the
STCW route the first respondent had to send its people away to sea
for shipping companies to employ them on their
ships. He said:
“It
was a very costly exercise and it was an exercise that had not borne
any fruit. We were looking at an alternative route. That
was the one
part. The other part was that it also applied to personnel within
Portnet who had come up on the tugs who would work
as deckhands on
tugs and that they could progress to Master’s certificate, Master
of Port Operation without having to go to sea.”
[31] Captain
Van der Krol testified that the Port Operations Certificate was
created as a result of a desire to align the South African
regulations with
“the
international protocol”
which had then to be submitted to the International Maritime
Organisation. He said that during this exercise it became apparent
that
“with
STCW with the stricter code in terms of revalidations that it would
no longer be possible for the port industry to go the
same way and
that there were alternative routes and those routes were explored and
the Port Operations Certificate was born from
that. “
Capt
Van der Krol also said that in separating the seagoing industry from
the port industry, South Africa was doing what the United
Kingdom and
other countries on the continent had already done. He emphasised that
the first respondent was firmly in the port industry
and not in the
seagoing industry. He testified that it was up to the first
respondent to make up its mind which route it had to follow
in terms
of the two routes contemplated in Marine Circular no 10.
[32] Captain
Van der Krol testified that an ex-naval officer who wanted to obtain
the STCW needed certain theoretical knowledge as
set out in the
relevant regulations and, for the practical knowledge, he would have
to spend a period at sea which he thought would
be six months plus a
period at a Technikon. Asked what the cost implications were for the
training necessary to obtain the STCW,
he said that there had been
instances where people had gone to sea in order to obtain sea going
qualifications and the first respondent
had allowed them to go to sea
on unpaid leave in which case the cost implications for the first
respondent had been relatively small
but, continued Capt Van der
Krol, if people went to sea on full pay, the costs were
“horrendous”.
[33] Captain
Van der Krol was asked under cross-examination why the first
respondent had not instituted any sort of training programmes
for all
the individual appellants. His answer was that the individual
appellants had all been on training programmes to become tug
masters.
He was then asked why the first respondent had not just sent some of
them to sea so that they could get some sea time to
obtain the STCW
because it was in place. His answer was that in terms of capacity it
was impossible in the first instance to send
people to sea so that,
even if the first respondent had wanted to send them to sea, it was
not possible. He was asked why it was
not possible, and he said
“...
Because of the capacity of exchange that we had”.
He was then asked to explain what he meant. He explained thus:-
“
Capacity
of exchange is the total number of personnel employed on the marine
side. As I have indicated in ‘96 we were under tremendous
pressure.
There were great shortages. The Naval personnel were brought in on
exemption, we trained them for six months after which
it was for six
months on full pay, the company had them on full pay whilst training
and after that they could perform their job.
So only at the end of
the first six months could they start adding value to the company.
Now if I go to my bosses and say now I am
going to send these people
to sea for the next year and then they are going to go to Technikon
and then I can use them I think I
would have been fired.”
[34] Captain
Van der Krol testified that until December 1999 the Port Operations
Certificate was not available or could not be issued
and the only
qualification that was available was the STCW which required going to
sea. He gave evidence also to the effect that,
although the first
respondent had a capacity problem and, for, among others, that
reason, could not send the individual appellants
away to sea, they
had sent out some employees on pilot training. This was in regard to
what was referred to as the Rotterdam training
programme.
[35] Captain
Van der Krol was then asked under cross-examination how the first
respondent had managed to have the necessary capacity
to send some
personnel to training on the Rotterdam programme but had not had
capacity to send the individual appellants to sea for
their STCW
training . His reply was that the Rotterdam training was a very
special scheme which
had
been designed as an accelerated training course. He said that the 14
personnel that had been sent on that training had been from
formerly
disadvantaged groups and they had been at sea with shipping companies
and, except for two or three, they had not been part
of the normal
port complement. He said that they had been brought in and had then
been sent off
to
Rotterdam. He testified also that in that group of 14 there had been
ex-naval personnel but stated that those had also been from
disadvantaged groups. He said that in East London the capacity had
been four tug-masters and two of them had been released to join
the
Rotterdam training. He testified that the East London management had
been prevailed upon to release the two to join the training.
He
continued:
“We
moved heaven and earth, we shook all the trees and we managed to get
these people released ...”
[36] After
Captain Van der Krol had testified that Portnet still had some of its
employees at sea who were being trained for the STCW,
he was asked
how come Portnet still had employees at sea when, according to the
minutes of a meeting held in Pretoria between SAMSA
and Portnet on
the 13
th
July 1999, Portnet had stated that it was no longer its goal to
require their staff to hold the STCW. He testified that this goal
had
changed during 1996 to 1997. He replied that Portnet had two goals.
One was operating a tug and the other operating pilotage.
He said
that the goal for operating a craft was restricted to port
operations. He said that the goal was
“STCW
qualifications to Pilot and subsequently at the March workshop we
modified that one as well.”
[37] Captain
Van der Krol was further asked how Portnet managed
“to
organise berths on ships and release [the people who were at sea]”
as he had said that Portnet lacked capacity. He answered that it was
at the ports that Portnet lacked capacity. He testified that
the
people at sea fell outside the complement of the ports. He said that
those people who had gone to sea
“are
in the nature of cadettes.”
He said that they
“come
directly from Technikon. We recruit them after they have done their
two years at Technikon and they are then sent away with
a shipping
company in order to obtain their class 3 certificates. We have an
arrangement with shipping companies. These cadettes
are paid a very
low rate and we pay the shipping companies for their board and
lodging on board the vessels”
He
was then asked under cross-examination whether that facility was
available only to cadettes or whether it was also available to
any
other employees such as the navy personnel to go to sea and obtain
the qualifications. He replied that every now and then they
got
applications from people - mostly on the engineering side - who asked
to go to sea and they were given unpaid leave of absence
in order to
go and get their higher qualification but that depends on the
operational requirements.
[38] Capt
Van der Krol was then asked whether it was normal practice to employ
people on a temporary basis to release people to go
to sea. He said
that operationally in the ports they have a provision for short term
contracts and they use those in most of the
ports. He recalled an old
pensioner in Durban who was still driving a tug ten years after his
retirement. He said that this was done
in order to provide relief to
personnel when tugmasters go on leave because of the shortages that
the ports had. When Captain Van
der Krol was asked whether it would
not be possible to make the same arrangement on a staggered basis for
the ex-navy personnel,
he replied that any request in that regard
would be treated on an individual basis. He said that to his “
almost
certain knowledge”
nobody
had applied on the basis that he would take unpaid leave in order to
pursue a seagoing career to obtain his qualifications
and then come
back to the service but said that if there were, then he would like
to see their requests.
[39] It
was suggested that Mr Meintjies, one of the individual appellants,
had unsuccessfully tried to be allowed to go to sea and
had even been
prepared to go on unpaid leave but had been turned down. Capt. Van
der Krol testified that no such application or request
had been
submitted to his office. However, he explained that some of the
issues relevant to such a request were operational issues
which fell
within the power of a Port Captain to decide. An example of such a
matter was whether the people could be released or
not. He said that
other issues fell within the power of his office to decide. An
example of such matters was the question whether
in terms of policy
people went to sea on full pay or on unpaid leave.
[40] Captain
Van der Krol was asked what it would cost Portnet to send the
individual appellants to get STCW training if they went
on full pay.
He said that the costs would have to be assessed on the basis that
each individual appellant had to do a year at sea
and then had to go
to Technikon on top of that. He said that there was the cost of the
monthly salary of the particular employee
for a year and there was
the cost of employing someone else who must do his job for a year,
which could be at the same salary roughly.
He took the case of Mr
O’Brien, one of the individual appellants who, it was stated, was
earning R 190 000,00 per year. He said
that if, for convenience, one
rounded that figure to R 200 000,00 per year it meant that Portnet
would have to pay R 200 000,00 to
Mr O’Brien and another R 200
000,00 to his temporary replacement and rounded the costs to Portnet
at about half a million rand
per person.
[41] Captain
Van der Krol further testified that he was convinced in his own mind
that an ex-naval officer who had a Port Operations
Certificate could
become a pilot without ever having to go to sea and he was not going
to put the company to the expense of half
a million rand per person
when there was that option of career advancement for the individual
appellants. He said that, of course,
it was different if an employee
took unpaid leave to go to such training because the cost to the
first respondent became relatively
small.
[42] Captain
Van der Krol was asked how under the present system any of the
individual appellants could become a pilot. He referred
to the
minutes of a certain workshop that had taken place in March of that
year which he said had outlined the route to becoming
a pilot. His
answer was that in terms of the minutes of that workshop there were
three different routes leading to being a pilot.
He said that they
did not talk of ex-naval officers in the document. They simply talked
about tugmaster’s level. He said that tugmasters
would have either
the class 3 certificate or the Master’s Port Operations
Certificate. The individual appellants held the Master’s
Port
Operations Certificate. Both categories are then on the same level of
qualification.
[43] Captain
Van der Krol said that there were two schemes. The one scheme, he
said, was the cadet scheme and the other was the internal
route which
was via skipper port operations. The cadet scheme, he continued,
required the STCW qualification to get to the position
of pilot. That
is the STCW route. In the internal route, he said, the STCW
qualification is not a requirement. He said that the internal
route
accommodated both employees with the class 6 qualification as well as
the ex-naval officers. Being tugmasters the individual
appellants
could then make application to go to Pilot-in-training. If they went
to Pilot-in-training, they would have to do either
a bridging course
or they could attend Technikon and obtain a T3 and, when they have
completed that bridging course, they could go
to trainee pilot and do
the practical training of pilot and then they would be able to go
through to pilot. He said that that is
how their career path was
sketched.
[44] Captain
Van der Krol was asked whether Portnet was prepared to pay while the
employees were studying the T3 . He answered:
“Yes,
Portnet will have to, in terms of the Master’s they will have to
make certain facilities available for people to study and
for them to
equip themselves for Pilot-in-training. The bridging course is the
preferred one. We believe it is still going to take
time to transfer
the bridging course from Rotterdam to us but in the meantime we say a
bridging course or a T3.”
[45] He
was asked whether the individual appellants could then all go on to
the T3 course. Capt Van der Krol’s answer was that they
could all
apply to go on to the T3 course and their applications would be
considered. He said that the selection criteria had not
been
finalised but would be in due course. He said that the process to be
followed would be transparent. He further testified that
the
selection criteria would be fair. He testified that the individual
appellants needed to follow the relevant procedure if they
wanted to
go on to the T3 course. The implication was that, if they did not
follow the procedure, they would never know if their
applications
would have been successful.
[46] Asked
whether he had at some stage said to any of the employees that they
would have to resign if they wanted to go to sea and
obtain the STCW,
Captain Van der Krol testified that he may well have said so in terms
of Portnet’s capacity at the time. He added
that he had always
maintained that obtaining the STCW for the individual appellants did
not add any value to the first respondent
but was a personal matter
for each individual who wanted it because he could see that it added
value to a person. He was then asked
why he told or would have told
the employees that they would have to resign as opposed to informing
them that they would have to
take unpaid leave or would be able to go
to training when there was enough capacity. He was asked whether this
meant that there was
no possibility of the individual appellants
being allowed to go to training. His answer was that in terms of
capacity there was no
possibility. He then testified that the
situation was that
“when
capacity improves and ... there is over capacity of personnel,... it
would be in the company’s interest to allow them to
go off on
unpaid leave.”
[47] At
some stage Captain Van der Krol was asked what Portnet’s costs were
on marine training. He replied that the Rotterdam training
was wholly
subsidised by the Dutch Government including the salaries. With
regard to the cadets at sea, Captain Van der Krol testified
that they
were costing Portnet a lot of money once they were cadets. Portnet
paid them their wages as well as for their accommodation.
He was
referred to a statement he had allegedly made earlier to the effect
that it took about ten years to train people to class
1 level and it
was suggested that this should be quite costly to Portnet. His answer
was that it actually was not costly with regard
to those. He said
that this was
“because
with them what happens is we train them until they get their first
STCW qualification and from then on they go on unpaid
leave and they
can then look after themselves, they get paid by the shipping company
and from then on really the only cost involved
to us are the periods
at Technikon. So it is quite cost effective for us.”
[48] A
question was asked of Captain Van der Krol whether Portnet had ever
considered negotiating
“some
sort of arrangement”
between the union representatives of the individual appellants and
Portnet to reduce the cost to Portnet of the training. Captain
Van
der Krol’s answer was that discussions on those types of issues
took place between Port Captains and individuals and
“it
was said to them that they can go on unpaid leave but we certainly
cannot pay their full wages but no approaches have been made
for
negotiations on any of these scores to say can naval officers go to
sea and can anything better be negotiated and then on no
pay.”
[49] Captain
Van der Krol further emphasised that consultation is
”a
two-way street”
and that
“what
we do from the company is to look after the company’s interest
first and foremost, so we train in accordance with the strict
company
needs. If there are areas where that training starts going over into
other areas we are always open to approaches from other
unions. That
door is
never
closed. If you consider that the Master Port Operations Certificate
and certain modules go towards STCW, if a person professes
an
interest in going for STCW we have said the unpaid leave option is
always open.”
[50] Captain
Van der Krol emphasised that the individual appellants were
unqualified when they started with Portnet. He said that
they were
trainees. The first respondent had then put them on a six months
training on full pay. That training had been necessary
to enable them
to perform their job. In the light of that, continued Captain Van der
Krol, it could not be expected of a commercial
organisation that from
the day that they completed that training and were then able to do
their work, it would then start training
them for their next job when
they were required on their job. He emphasised that Portnet had
trained the individual appellants for
the job that they had applied
for.
[51] Captain
Van der Krol also emphasised that his goal was to keep the operation
going. Everybody had managed to get a Master’s
Port Operation
Certificate and could now drive a tug legally without needing an
exemption from SAMSA. He then said:
“We
are busy building capacity which translates into being able to
release people and yes, we would welcome any proposals coming
from
the side of Labour where they see that they can improve their
prospects and to see if this can be dovetailed with the company
but I
mean that is something for the future, that is certainly not
something that was on the table at the time. What was on the table
at
the time was to get legal.”
[52] At
no stage did the appellants’ representative during
cross-examination challenge Captain Van der Krol’s credibility nor
did he at any stage suggest to the captain that the veracity of his
evidence was being disputed in any way. The result of this was
that
Captain Van der Krol’s evidence was not challenged in any material
respect.
The
commissioner’s finding that an agreement had been reached between
the individual appellants and the first respondent that they
be
afforded STCW training.
[53] The
commissioner found that there was an agreement between the individual
appellants and the first respondent that the former
would receive
training necessary to acquire the STCW. He then said that, as an
alternative to that finding, it was his finding that
“there
was at least an agreement to the effect that the individual
appellants would [be] afforded the opportunity to obtain a
qualification
substantially equal to STCW”.
He
went on to say that the first respondent had failed to provide the
STCW training and that its insistence on the individual appellants
completing the Port Operations Certificate could not be regarded as
compliance with its original contractual obligations.
[54] In
considering this aspect of the dispute, the commissioner stated that
he had considered the contents of the advertisement,
the maritime
circular no 10, the interviews of the three individual appellants who
testified, and the letters of appointment of the
individual
appellants. The contents of the advertisement have been quoted above.
The only part of the advertisement that is relevant
is the one that
reads
“opportunities
for self-realisation and career advancement within the Group exist.”
The commissioner found that this could not on its own be relied upon
to conclude that there had been an agreement that the individual
appellants were entitled to undergo training to obtain the STCW. He
said that it created nothing more than a hope. In my view all
the
advertisement said in this regard was that there were opportunities
but left it to the parties to later explore such opportunities.
It
also did not say anything about the STCW training
[55] The
commissioner then proceeded to examine the marine circular no 10.
Clause 1 of the circular recorded that the Department of
Transport
had agreed to the employment of ex-naval officers by the first
respondent as well as the conditions subject to which such
agreement
had been reached. Clause 2 said that what was stated in clause 1 was
an interim measure. It then proceeded to say that
“(t)here
will be a programme and plan to take officers through from rating to
master.”
It further stated:
“There
will be a programme for certificates limited to port operations and
another to enable the officer to obtain an STCW endorsement
to his or
her certificate of competency.”
[56] The
first sentence of clause 3 of the circular provided that it was the
aim of the programme
“to
slot naval officers into these training programmes and, in so doing,
dispense with the need for exemptions.”
Clause 3 went on to set out what the system required at that stage if
a naval officer wanted to obtain a Deck Officer certificate
of
competency with an STCW endorsement. The commissioner made reference
to clause 2. He said that the parties argued about who of
them was
given the choice of the programmes. He said that the first respondent
argued that it was up to it to choose which programme
was used or
followed whereas on behalf of the individual appellants it was argued
that the choice was that of the employee in each
case. In the end the
commissioner expressed the view that the content of the circular was
such that it could support either party’s
argument in this regard.
He then concluded his consideration of the content of the circular on
the basis that he would be very reluctant
to determine the dispute
solely on the basis of an interpretation of the circular. He then
considered what was said at the interviews
of the three individual
appellants who testified.
[57] The
commissioner stated in his award that the appellants had led evidence
to the effect that the first respondent’s representatives
stated at
the time of the interviews that ex-naval officers employed by the
first respondent would be afforded an opportunity to
gain sea-time
and that they would be able to obtain the STCW. He also stated that
the first respondent had not challenged this. At
that stage of the
award, the commissioner asked whether this constituted an agreement
to train ex-naval officers to obtain the STCW.
The commissioner
stated that the first respondent’s representatives would have made
the prospects of advancement as attractive
as possible because the
first respondent was desperate to get tug masters and it had
particularly targeted naval officers. At this
stage it is apposite to
state that this statement by the commissioner was without any
evidential basis and was mere speculation.
He also stated that the
employment of the individual appellants was subject to their
obtaining the necessary commercial qualification.
He further noted
that at that time the STCW was the only available qualification.
[58] In
the result on this point the commissioner concluded that it was a
condition of service between the individual appellants and
the first
respondent that they would be allowed to undergo training to acquire
the STCW. He said that the condition was
“imported
into the employment contract by means of the marine circular no 10
(in addition to the consensus reached at the interviews)”.
He
said also that the first respondent had devised a qualification that
was of a lower status or quality when it devised the Port
Operations
Certificate. In this regard he held that the first respondent had
acted in breach of
“the
imported contractual term ...”
[59] The
commissioner also sought to deal with the dispute on the basis that
the first respondent’s conduct in refusing or failing
to provide
the individual appellants with training necessary to obtain the STCW
constituted a unilateral change of their terms and
conditions of
employment or alternatively, that the individual appellants had a
“reasonable
expectation”
to be provided with the necessary training to obtain the STCW. The
commissioner proceeded to say :
“[The
first respondent] acted in a manner which was in breach of its
contractual obligations or in a manner which undermined the
[individual appellants’ reasonable expectation’. As such there
was a change in conditions of service”.
Immediately after saying this, the commissioner had this to say:
“However,
such a change is not automatically ‘unfair’ (in the ordinary
sense). Such a change is also not necessarily arbitrable
and if it
is, it is not necessarily ‘unfair’ for purposes of item 2(1)(b)
of Schedule 7 to the LRA”.
[60] Later
on in his award, the commissioner dealt with the issue of
jurisdiction to arbitrate the dispute. In the course of his
discussion
of this issue he makes statements that reveal the basis of
his finding that it was a condition or term of the contracts of
employment
between the individual appellants and the first respondent
that the first respondent would provide them with training towards
the
STCW. At 221 of the record he says in his award:
“In
the present matter I have already concluded that STCW training or
equivalent training was a term of contract by means of the
express
agreement between the parties at the interviews, together with the
importation of Marine Circular 10 of 199
7
's
provisions into the employment contract. It follows that [the first
respondent] was not entitled to vary these provisions without
the
consent
of
Mitusa or the affected employee”.
A
few paragraphs later the following sentence appears:
“The
only processes and issues which impacted on their contracts of
employment were the advertisement, the content of what transpired
at
the interviews and their physical contracts of employment
incorporating the provisions of Marine Circular 10 of 1997.”
The
appeal
[61] A
proper analysis of the commissioner’s award reveals that the
fundamental basis of the award is the commissioner’s finding
that
an agreement had been reached between the first respondent and the
individual appellants that the first respondent would provide
the
individual appellants with training for the STCW. The agreement that
the commissioner found had been reached must, of necessity,
be an
agreement that is enforceable in law, otherwise it would not give
rise to any rights in law. The commissioner must also have
had that
in mind because he said that that agreement was incorporated into the
contracts of employment of the individual appellants.
I do not think
that it would be incorporated in to a contract of employment if it
was not a legally enforceable agreement.
[62] The
finding by the commissioner that an agreement had been reached which
became part of the individual appellants’ contracts
of employment
is fundamental to his award. Indeed, as already indicated above with
reference to the appellants’ heads of argument,
the appellants
claim to entitlement to the STCW training is based almost entirely on
there having been an agreement that became part
of their contracts of
employment. In saying this I do not lose sight of the fact that there
were two issues that the commissioner
identified at the commencement
of the arbitration and that the first related to the existence of an
agreement and the other was simply
whether the first respondent’s
conduct in not allowing the individual appellants to undergo training
for the STCW was unfair
“looking
at the totality of the circumstances.”
On a proper analysis of the award I think it is clear that negligible
reliance was placed by the commissioner on any conduct on the
part of
the first respondent for any purpose other than to show the existence
of an agreement and a breach thereof. I shall deal
with this a little
later. In the light of the above the commissioner’s finding
relating to the existence of an agreement needs
to be considered
carefully against the background of the grounds of review relied upon
by the first respondent.
[63] One
of the grounds on which the first respondent contended that the
commissioner’s
award should be reviewed and set aside was that the award was
unjustifiable and irrational. One basis which was
advanced by first
respondent for this contention is given in par 56.2.4 of the founding
affidavit. It relates to clauses 18.1 and
18.2 of the contracts of
employment between the individual appellants and the first
respondent.
[64] Clauses
18.1 and 18.2 read thus:-
“
18.1 This
agreement constitutes the entire service agreement between the
parties and substitutes any previous agreements that may
have been
entered into between parties and
any
such previous agreement shall have no further legal effects.
18.2.
No
variation or amendment
of
this agreement
shall
have any legal effect unless reduced to writing and signed by the
parties.”
(My
underlining).
[65] In
par 56.24 of the founding affidavit the first respondent states:
“
By
concluding that the representations made at the interviews, together
with the contents of [Marine Circular No 10 proved an agreement
for
the provision of STCW training, [the commissioner] exceeded his
powers in that [the] contracts of employment, annexures “J4"
to “J9" are stated therein to be the entire agreement between
the parties, expressly superceding all prior agreements.”
[66] The
individual appellants did not in their answering affidavit respond to
the allegations in par 56.2.4 of the first respondent’s
founding
affidavit. Although the commissioner did not oppose the first
respondent’s review application and abided the Court a quo’s
decision, he, nevertheless, filed an affidavit in which he responded
to some of the allegations made by the first respondent in its
founding affidavit. His reply to the allegations in par 56.2 and
thereafter of the founding affidavit is to be found in par 5.2 of
his
affidavit. In par 5.2.2.2 thereof he states that in considering the
matter he had not considered the contracts of employment
attached to
the founding affidavit as
“J4"
to
“J9".
He then states that he did not recall that they had been
“introduced
into evidence at the hearing.”
Those
contracts contained the same terms as the contracts of employment of
the rest of the individual appellants. In fact Mr O’Brien
conceded
under cross - examination that they were standard contracts for the
rest of the individual appellants.
[67] The
commissioner’s affidavit was deposed to on the 6
th
September 2000. The individual appellants’ answering affidavit was
deposed to on the 19
th
October 2000. In their answering affidavit the individual appellants
did not state that those contracts of employment were not part
of the
record before the commissioner despite the fact that they would have
seen from the commissioner’s affidavit that he was
saying that he
did not recall that the specific contracts had been admitted in the
arbitration proceedings. When they read such statement
by the
commissioner the individual appellants would have been prompted to
state that they also did not recall those contracts being
admitted to
evidence or to deny that they were admitted to evidence if that was
their version. They did not do any of this. They
simply did not give
any reply to the particular allegations.
[68] It
is interesting to note that, when the individual appellants sought to
reply to the allegations in par 47 of the founding affidavit,
which
included a reference to annexure
“JH16"
they saw fit in par 17 of their answering affidavit to
state
that annexure
“JH16"
had
not been placed before the commissioner in the arbitration
proceedings as evidence. The deponent to the answering affidavit then
says:
”I
am advised that it will be argued at the hearing of this matter that,
to the extent that its contents may be deemed relevant,
it cannot
accordingly be placed before Court for purposes of review”.
It
is, in my view, quite clear from this that the individual appellants
would
have said the same about annexures
“J4"
to
“J9"
if the position was that annexures
“J4
“
to
“J9"
had
not formed part of the documentary evidence before the commissioner.
In the replying affidavit the first respondent states quite
categorically that the contracts were admitted as evidence in the
arbitration proceedings.
[69] It
cannot be said that a dispute of fact has arisen about whether the
contracts of employment were or were not admitted in the
arbitration
proceedings because the commissioner did not state that they were
not. All he said was that he did not recall. Furthermore,
the
appellants have not said that the contracts were not admitted as
evidence and yet they had an opportunity of saying so if that
was
their version. In any event a reading of the record reveals that at
least in respect of Mr O’Brien, one of the individual
appellants,
evidence was led about his letter of appointment. At 100 of the
record the commissioner read out the letter of appointment
for Mr
O’Brien. One of the paragraphs therein says: “
your
transfer does not affect the validity of the management agreement
entered
into
with you.”
The commissioner then went on to ask what the management agreement
was and was told that that referred to the contracts of employment
of
the individual appellants. The record reveals that the commissioner
then said:
“Alright
I will arrange for copies of that.”
Thereafter the transcript reflects the commissioner asking that
someone at the front desk be asked to make copies.
[70] The
commissioner admitted in his affidavit that he had not considered
annexures
“J4"
to
“J9"
in deciding the matter. He should have done so especially when he was
contemplating making a specific finding that an agreement was
reached
which became part of the contracts of employment between each
individual appellant and the first respondent. In this regard
it
needs to be borne in mind that he knew from the evidence that there
were written contracts of
employment
existing between the individual appellants and the first respondent.
It should have occurred to him that in such a case
he needed to read
the contracts of employment first before he could conclude that
another agreement was incorporated into them because
there would
always be a risk that each contract has a clause prescribing that
only a written agreement could vary or amend it effectively.
[71] The
commissioner’s reliance on an oral agreement that, on his finding,
was concluded between the parties prior to the conclusion
of the
written contracts of employment of the individual appellants flies in
the face of the provisions of clause 18.1 and 18.2 of
the contracts
of employment. As stated above, those clauses are to the effect that;
(a) no prior agreements would be effective, and
(b) no agreement
concluded after that to vary or amend such contracts of employment
would be
effective
unless
reduced to writing and signed by the parties. The commissioner did
not give any reason in his award justifying his reliance
on such
prior agreement in the light of those clauses. In his affidavit he
admitted that he did not consider the contracts of employment
annexed
to the first respondent‘s founding affidavit. The commissioner’s
finding in this regard is wholly unjustifiable.
[72] Quite
apart from the basis given above for the conclusion that the
commissioner’s award was irrational and unjustifiable, I
think
there is another basis on which the same conclusion can be reached.
In coming to the conclusion that it was a term or condition
of the
contracts of employment of the individual appellants that the first
respondent would provide them with the STCW training,
the
commissioner stated in his affidavit that he based his finding on the
content of the advertisement, marine circular no 10 and
the
interviews of Messrs O’Brien, Purdon and Keller. In the last two
sentences of his affidavit the commissioner stated that the
evidence
of the three individual appellants informed his “
interpretation
of especially marine circular 10"
which
he said,
“was
central to the arbitration”.
[73] The
commissioner said in his award that neither the advertisement nor
marine circular no 10 contained enough to justify a finding
that an
agreement had been reached between the individual appellants and the
first respondent that the latter would provide the former
with the
STCW training - I would add - on full pay and entirely at its cost
alone. It follows that, had there not been the oral evidence
of the
three individual appellants, the commissioner would not have made the
finding that he made. If that is so, then that evidence
must have
been central to his finding in this regard. I do not think that there
was much in the evidence of those three to justify
the weight that
the commissioner obviously attached to it. I deal with that evidence
as well as that of Captain Van der Krol below.
[74] Mr
O’Brien did not at any stage testify that during his interview the
first respondent’s representatives ever told him that
he would be
afforded training to obtain the STCW. Mr Purdon’s evidence did
suggest that he was told that the first respondent
would afford him
the opportunity to undergo training for the STCW. However, he did not
at any stage testify that he was told what
the terms and conditions
were going to be for undergoing that training. He did not, for
example, say who it was said would bear the
costs of the training or
whether the first respondent’s representatives ever told him that
the first respondent would bear such
costs all by itself. He also did
not testify that he was told that during such training he would be
granted leave on full-pay or
on partial pay or whether it would be an
unpaid leave. On the contrary he testified that at some stage the
first respondent had
told him that they would be released to go to
sea for the training to acquire the STCW but were told that they
would have to find
their own boats. He did not testify that this
surprised him and he viewed it as a breach by the first respondent of
its agreement
with him or as a breach of his conditions of service on
the basis that he and the first respondent had an agreement in terms
of which
the first respondent was obliged, in giving him the
opportunity for that training, to also provide him with a boat or to
make the
necessary arrangements for him to obtain a boat. That would
have been the natural reaction of a person who believed that the
first
respondent was contractually obliged to provide everything in
connection with the training. On the contrary Mr Purdon proceeded to
try and make arrangements to obtain the boat for himself which was
completely inconsistent with a belief on his part that the first
respondent was obliged to provide all of this.
[75] Furthermore,
the appellants’ representative was, to a very large extent, asking
the appellants’ witnesses leading questions
on controversial issues
which he should not have done. Of course, as he was not a lawyer, he
might not have known that he should
not do that. One of the leading
questions was on the most important aspect of the dispute. He asked:
“So
there was a considerable discussion, so you could say there was some
sort of meeting of the minds?
”
At this stage even the commissioner could not take it anymore. He
warned the appellants’ representative not to “
put
words in the witness’ mouth.”
He told him that by doing that he was going to do his case a lot of
harm because he, i.e the commissioner, would take this into account
when making his award. Despite this undertaking, the commissioner
does not seem to have taken this into account when he considered
the
issues. If he had done so, one would have expected him to say so
because it would have seriously weakened the evidence of Mr
Purdon
about whether an agreement had been reached in his interview that
the first respondent would provide him, on full pay and
entirely at
its costs, with the training for the STCW. I have already said that
Mr O’Brien did not give any evidence of an agreement
being reached
at his interview. So, if the commissioner had kept his undertaking of
taking into account the fact that Mr Purdon’s
evidence - whatever
its quality and value - was obtained through leading questions by his
representative, he probably would have
concluded that Mr Purdon’s
evidence was not good enough on this important aspect of the dispute.
[76] Although
Mr Keller did testify that at Richards’ Bay they were told that
“(w)e
should write that class 5 ticket but that is the STCW class 5 ticket
so we can go to sea as a watchkeeper on a merchant ship
so we can get
the required seatime to get the class 3 tickets,”
he
did not testify about what the full terms and conditions of such
agreement as it may be suggested was reached in the interview
were.
He did testify that at some bargaining forum it was said that their
salaries would be maintained when they went for training
at sea.
That
was in a bargaining forum - not in the interview. Even in regard to
what he testified was said in that bargaining forum, he did
not say
who it was that said this. It may well have been said by some person
who was not employed by the first respondent; it may
have been said
by a union official who was giving his understanding of the position
that may have been erroneous; it may have been
said by an official of
the bargaining forum giving a mistaken view of the true position.
[77] When
Mr Keller was asked under cross examination what conditions of his
employment he was claiming the first respondent to have
changed, he
answered that it was
“future aspects [maybe he meant prospects] for one that were have
at least got a future path-career path (audible). The moment
were
have not got that.”
If,
as Mr Keller suggested, his complaint was that the first respondent
had failed to provide him with a career path and it is that
conduct
on the first respondent’s part which he contended constituted a
change of his conditions of service, the commissioner should
have had
regard to Captain Van der Krol’s undisputed evidence of the career
path that the first respondent had started putting
in place for,
among others, all the employees holding the Port Operations
Certificate. This included the individual appellants. If
he had taken
that evidence into account, it is difficult to see on what basis he
could have concluded that the first respondent had
not ensured that
Mr Keller, for example, would have a career path.
[78] Mr
Keller’s evidence can simply not be said to have been anywhere near
to being enough to conclude that an agreement enforceable
in law had
been reached in his interview to the effect that he would be provided
by the first respondent with training necessary
to acquire the STCW
on full pay and that the first respondent would foot the entire bill.
On the contrary, just as is the case with
Mr Purdon, Mr Keller’s
own evidence reveals conduct on his part that is inconsistent with an
employee who believed that he had
an agreement with his employer -
the first respondent in this case - that obliged the first respondent
to provide the required training
on the basis that it was responsible
for all costs and arrangements. He testified that at some stage
Captain Davis had told him or
him and others that the first
respondent would release them to go to sea in order to get training
for the STCW but had said that
they had to organise their own berths.
One would have expected that, when Captain Davis said this,
Mr
Keller would have asked why they were then being told to organise
their own berths when they had an agreement with the first respondent
in terms of which the first respondent was responsible for everything
and they did not have to do anything other than to just present
themselves at the training. No, that is not what Mr Keller did. On
his own evidence, he then proceeded to try and make arrangements
to
obtain berths. That is conduct that is completely inconsistent with
any case on his part that a contract had been reached between,
among
others, himself and the first respondent to the effect suggested on
their behalf.
[79] There
can be no doubt, in the light of the aforegoing, that the evidence of
the three individual appellants provided no basis
whatsoever for the
conclusion by the commissioner that a legally enforceable agreement
had been reached at the interviews of the
individual appellants that
the first respondent would provide them with the STCW training. The
commissioner’s finding to the contrary
is completely unjustifiable.
[80] The
first respondent also attacked the commissioner’s finding that the
individual appellants and the first respondent had concluded
an
agreement obliging the first respondent to provide the individual
appellants with the STCW training on the basis that he made
such a
finding in circumstances where the written contracts of employment
were silent on the terms or basis on which such training
would be
provided and also on the basis that no evidence of such terms had
been led in the arbitration proceedings. The first respondent
alleged
that the commissioner did not call for evidence on this and he made
an order without any knowledge of what the first respondent’s
existing training policies were. The first respondent made this
allegation in par 56.2.3 of its founding affidavit.
[81] The
appellants did not in their answering affidavit deal separately with
the allegations in par 56.2.3. In par 20.2 of their
answering
affidavit under the heading:
“AD
SUB-PARAGRAPH 56.2"
they provided certain comments but did not say anything that
contradicts the allegations by the first respondent in par 56.2.3.
The commissioner also did not deny this allegation in his affidavit.
He also did not deny the allegation that he made the finding
that the
individual appellants were entitled to training for the STCW without
any knowledge of what the existing training policies
of the first
respondent were.
[82] I
think it is true that there was no evidence before the commissioner
of what the terms were that were agreed in respect of the
provision
of the STCW training that he held the individual appellants to have
been contractually entitled to. The advertisement said
nothing more
than that there would be an opportunity for advancement. It did not
specify any terms nor did it state the nature of
such advancement. It
also referred to advancement within the first respondent’s group of
companies. It did not refer to advancement
outside the group. The
part of marine circular 10 that the commissioner referred to as the
crux of the dispute and that he also relied
upon, to some extent, for
his finding of the existence of an agreement read thus: “
There
will be a programme for certificates limited to port operations and
another to enable the officer to obtain an STCW endorsement
to his or
her certificate of competency.”
Nothing
was said in the marine circular about the terms and conditions for
such training or about the basis for the provision of such
training.
Furthermore none of the witnesses that were called by the appellants
gave any evidence about what the terms and conditions
were going to
be for the provision of such training. One of the three individual
appellants who testified said that in his interview
he was told that
“we”
would be afforded an opportunity to train for the STCW. Even he did
not testify about what the terms and conditions for the provision
of
that training were going to be.
[83] If
it were accepted that the first respondent’s representatives in one
or two of the interviews did say to one or two of the
individual
appellants that they would be afforded an opportunity to go for
training to obtain the STCW, that, on its own, would not
have been
enough to create a legally enforceable agreement or a condition of
employment without there being an agreement on the terms
and
conditions under which that would be done. No witness testified to
say at what stage of their employment the individual appellants

would be sent for the training. It was also never stated how long
such training would take nor who would pay for such training
and
whether, when an employee was on training, he would be paid his full
salary or only part thereof or would not be paid at all.
It was also
not said who would bear the travelling, academic, and accommodation
costs attendant upon such training. Those terms would
obviously have
been discussed at a later stage. It is when those were discussed and
agreed at a later stage that one could begin
to consider the
possibility of the formation of a legally enforceable agreement
between the parties. I am, therefore, of the view
that, on this
ground, too, the commissioner’s finding that the parties concluded
an agreement when there was no evidence about
the terms and
conditions under which the training would be provided is
unjustifiable and renders the award defective and susceptible
to
being reviewed and set aside.
[84] I
now turn to deal with the first respondent’s finding in the
alternative that a
“reasonable
expectation”
was created that the individual appellants would be provided with
training for the STCW. I deal with this finding with reference
to the
first respondent’s allegation in par 56.2.3 that the commissioner’s
finding that the individual appellants were entitled
to STCW training
was made despite the fact that no evidence existed about what the
terms would be for the provision of such training
and that the
commissioner made that finding without any knowledge of the first
respondent’s training policies. As I have said above
neither the
commissioner nor the appellants have replied to this allegation by
the first respondent. In dealing with this aspect
of the matter I
think it is important to examine the commissioner’s finding that
the individual appellants had a reasonable expectation
that they
would be provided with the STCW training, its basis as well as how it
was said to affect the dispute between the parties.
[85] The
finding by the commissioner in the alternative that the individual
appellants had a
“reasonable
expectation”
is made in his discussion under the heading:
“Conditions
of Service: Unilateral Change and Reasonable Expectation”
.
He said in his award:
“In
the circumstances I accept that in the alternative to having had a
contractual right, the [individual appellants] had a reasonable
expectation’ which created a right (interest?) worthy of
protection, depending on the circumstances.”
In
the following paragraph, the commissioner went on to say that the
manner in which the first respondent had acted
“was
in breach of its contractual obligations or ... undermined the
[individual appellants’] reasonable expectation. As such there
was
a change in conditions of service”.
[86] From
the above it appears that the commissioner took the view that, if the
individual appellants had a reasonable expectation
to be provided
with the STCW training, then, by some unexplained and inexplicable
process of legal metamorphosis, what they expected
was transformed
into being part of their conditions of service - without any
agreement by the first respondent. The commissioner
simply did not
explain how this was legally possible.
[87] The
commissioner’s finding must be dealt with on the basis that what
the individual appellants expected became a condition
of the contract
of employment because, as already stated above, he said that the
first respondent acted in a manner that undermined
the individual
appellants’ reasonable expectation and
“(a)s
such there was a change in conditions of service”.
It is, therefore, clear that the basis of the commissioner’s award
in this regard was that the requirement for the provision of
training
by the first respondent to the individual appellants was part of the
individual appellants’ conditions of service. That
is why he
regarded the failure by the first respondent to provide the training
as not only undermining the individual appellants’
reasonable
expectation but also as constituting a change by the first respondent
of the conditions of service of the individual appellants.
[88] The
effect of the approach adopted by the commissioner is that, as far as
he was concerned the first respondent was obliged to
provide the STCW
training either because of the existence of a reasonable expectation
or because of an agreement. Accordingly, if
that conclusion is shown
to be completely without any basis and unjustifiable or irrational,
his award cannot stand. That he used
two separate routes, namely, the
existence of an agreement or alternatively, the existence of a
reasonable expectation, to reach
that conclusion is of no
consequence. The fact of the matter is that he saw the individual
appellants as having, in effect, a condition
of service that required
the first respondent to provide them with the STCW training. In this
regard I wish to make three points.
[89] First,
the finding that the provision of training for the STCW was a right
deriving from an agreement or was a condition of service
was simply
not open to the commissioner to make in the light of the provisions
of clauses 18.1 and 18.2 of the contracts of employment
between the
parties which provided that no amendment of their contracts of
employment would be effective unless it was reduced to
writing and
signed by both parties.
[90] Second,
how what the individual appellants expected to happen found its way
into being part of the individual appellants’ conditions
of service
agreed to between the individual appellants and the first respondent
is not only not explained by the commissioner but,
is, in my view,
inexplicable.
[91] Third,
there is nothing in the commissioner’s award and in the evidence
that was before him that indicates that the individual
appellants
could have had any basis for an expectation of what the terms would
be that would govern the provision of the STCW training.
There is no
evidence that anybody from the first respondent ever suggested that
such training would be provided on the basis that
the individual
appellants would be on leave on full pay. There was also no
suggestion by any one from the first respondent that the
provision of
such training, if it materialised, would be made outside of the first
respondent’s existing training policies and
programmes. Captain Van
der Krol’s evidence revealed that the first respondent had capacity
problems that would prevent it from
releasing the individual
appellants for training even if it wanted to. It also revealed that
the first respondent did have training
programmes and it was up to
the individual appellants to make the necessary requests and these
would be considered on an individual
basis. The commissioner does not
explain in his award why this cannot be said to have been good
enough.
[92] Captain
Van der Krol also testified that the first respondent had to also
take into account the promotion of employment equity
in terms of the
Employment Equity Act in relation to training. He also testified
about the
“horrendous”
costs
that would be involved if the individual appellants were to be on
paid leave for the duration of the training. In the light
of this I
am of the opinion that the finding by the commissioner that the
individual appellants had a reasonable expectation is also
wholly
without any basis, especially when there is no evidence suggesting
what the terms are on which they expected the first respondent
to
provide them with the training.
[93] The
commissioner seems to have also thought that the failure by the first
respondent to provide the individual appellants with
the STCW
training left the individual appellants with no career path. That is
not so. The evidence given by Captain Van der Krol
was to the effect
that the first respondent had prepared a career path for the
individual appellants to progress to the position
of pilot. In regard
to this he testified that the qualifications that the first
respondent had provided the individual appellants
with could be
submitted to relevant authorities in other countries for
accreditation if any employee, including any individual appellant,
left Portnet’s employ and wanted employment in other countries. The
effect of the first respondent giving the individual appellants
the
training that they wanted on the basis that they would be on paid
leave would be to force the first respondent in effect to spend
millions of rands - which is public money -- to enable the
individual appellants to obtain training which they did not require
for purposes of their employment with the first respondent. Once they
had such training they stood a good chance of leaving the first
respondent to work elsewhere. This point was repeatedly made by
Captain Van der Krol in his evidence and was totally ignored by the
commissioner in reaching the conclusion that the individual
appellants had a reasonable expectation or that the first respondent
acted arbitrarily, irrationally and unfairly. In those circumstances
I am of the view that the commissioner’s finding of the existence
of a reasonable expectation was wholly without any basis, was
completely unjustifiable and renders the award defective and liable
to be reviewed and set aside.
[94] The
basis on which the Court a quo came to the conclusion that the
commissioner’s award fell to be reviewed and set aside was
that, on
the evidence presented to the commissioner, there was no basis for
the conclusion
“that,
[the first respondent’s] conduct constituted an unfair labour
practice arbitrable in terms of schedule 7".
The Court a quo then went on to say in the next sentence:
“That
being the case, the dispute could not be the subject of arbitration
under the Act”.
It further said,:
“In
purporting to determine a dispute in the absence of statutory
jurisdiction to have done so, a commissioner will manifestly have
exceeded his powers. For the cumulative reasons which I have stated,
I find that to have been the case in the present instance”.
This, read together with the entire judgement of the Court a quo,
suggests that the Court a quo found that the dispute was one of
interest, was not arbitrable and was required to be the subject of a
strike if it was not resolved by agreement and that, because
of this,
the CCMA lacked jurisdiction to arbitrate it. Before I can consider
this issue of jurisdiction, I think it necessary to
first have regard
to the exact basis on which the first respondent contended in the
founding affidavit of the review application
that the CCMA had no
jurisdiction to arbitrate the dispute. This is necessary because it
is that ground of review that the Court
a quo was called upon to
examine.
[95] The
first respondent’s contention that the CCMA did not have
jurisdiction to entertain the dispute is contained in par 56.1.1
-
56.1.4 of the founding affidavit. Those paragraphs read thus:-
“
56.1.1
The [commissioner] concluded, on the one hand, that the provision of
STCW training was a condition of employment, that failure
to provide
such training constituted a unilateral amendment to terms and
conditions of employment and that the [first respondent]
was required
to negotiate with the [individual appellants] over such change as
[opposed] to consulting with them;
56.1.2
the [commissioner] believed that dispute could possibly be one
“pertaining
to the unilateral change to conditions of
service”
but concluded, without substantiation, that there was
“no
doubt”
that the dispute is about training;
56.1.3
in the light of [the commissioner’s] conclusion that the attainment
of STCW was a condition of service, the dispute arising
[out] of the
alleged unilateral change to conditions of service is one of mutual
interest, is not an unfair labour practice and is
not arbitrable by
the CCMA.
56.1.4
it is accordingly submitted that the CCMA lacked jurisdiction and the
[commissioner] was not entitled to arbitrate the dispute
and his
arbitration award is accordingly a nullity and should be [set]
aside.”
[96] It
is clear from the allegations in these paragraphs that the first
respondent’s true complaint in relation to jurisdiction
was that,
while, on the one hand, the commissioner had held that the dispute
was one about a unilateral change of terms and conditions
of
service, he held, on the other, that it was a dispute about training.
The first respondent then proceeded to state in par 56.1.3
that,
since the commissioner had concluded that the provision of STCW
training was a condition of service, the alleged resultant
dispute
about an alleged unilateral change of conditions of service was a
dispute of mutual interest, was not an unfair labour practice
and was
not arbitrable. In par 56.1.4 the first respondent then submitted
that the CCMA lacked jurisdiction to arbitrate the dispute
and its
award was a nullity and should be set aside.
[97] In
examining the first respondent’s contention that the CCMA lacked
jurisdiction to arbitrate the dispute, it must be borne
in mind,
therefore, that that contention was premised on the dispute being, on
the commissioner’s findings, one about a unilateral
change of
conditions of employment. I have already said above that this
conclusion by the commissioner was made in respect of both
the
finding of the existence of an agreement as well as the alternative
finding that the individual appellants had a
“reasonable
expectation”
.
The first respondent’s contention that the CCMA lacked jurisdiction
has as its basis the assertion that a dispute about a unilateral
change of terms and conditions of employment is a dispute of
interest. The Court a quo dealt with the contention on the basis that
that assertion is correct. If the assertion is erroneous, then the
first respondent’s contention about the CCMA lacking jurisdiction
must fail.
[98] In
the founding affidavit the first respondent did not substantiate its
contention that a dispute about a unilateral change of
conditions of
employment is a dispute of interest. In his heads of argument Counsel
for the first respondent referred to the fact
that in his award the
commissioner had made far reaching orders including requiring the
first respondent to pay each individual appellant
his full
remuneration and benefits during any resultant absence from work. He
submitted that the award necessitated a considerable
diversion of
funds and resources by the first respondent in favour of the
individual appellants at the expense of the first respondent
and the
other employees of the first respondent. This was said as support for
the contention that the dispute is a dispute of interest.
[99] The
first respondent’s assertion that a dispute about a unilateral
change of conditions of employment is necessarily a dispute
of
interest is not correct. A clear case of a dispute about a unilateral
change of terms and conditions of employment is a case where
an
employer changes existing terms and conditions of employment of an
employee embodied in a contract of employment to the detriment
of the
employee without the employee’s consent. The following is a good
example. A contract of employment between an employer and
an
employee provides that the employer will provide the employee with a
car which the employee can use for both the employer’s
purposes as
well as the employee’s purposes, that the employer will pay the
employee a certain salary per month and that the employer
will
provide the employee with accommodation at the employer’s cost for
the duration of his employment. One morning the employee
arrives
at work to find a letter from the employer stating that with effect
from a certain date he must find his own accommodation,
his own means
of transport for both official and personal trips and that his salary
will be reduced. If the employee challenges this
action on the
employer’s part, that is a clear case of a dispute about a
unilateral change of terms and conditions of employment
of the
employee. This type of dispute entails that the employer takes away
an employee’s existing rights or benefits. At common
law such
conduct by the employer would constitute a repudiation of the
contract of employment. Such repudiation would give the employee
an
election either to accept the repudiation and claim damages or to
reject the repudiation and hold the employer to the contract.
In the
latter case the employee may seek specific performance.
[100] There
is another dispute which some may argue is also a dispute about a
unilateral change of terms and conditions of employment.
That is a
case where an employer does not take away any rights that the
employee already has in terms of his contract of employment
but adds
more rights to the employee’s contract of employment or improves or
further enhances the employees’ existing rights
or benefits. This
would be a case where the employer implemented a certain wage
increase to his employees’ wages without their
consent. In such a
case I am not sure whether it would be correct to describe as a
dispute about a unilateral change of terms and
conditions of
employment a dispute that might arise when the employees or their
union contend that the employer should not have
unilaterally
implemented such an increase. It is, however, unnecessary to express
a definitive view on this as, in this matter,
there cannot be any
doubt that, when the commissioner labelled the dispute as a dispute
about a unilateral change of conditions of
employment, he had a
dispute falling within the ambit of my first example in mind. This
must be so because he said that the provision
of training to the
individual appellants to obtain the STCW was a condition of service
and the first respondent took such condition
of service away from
them and gave them training for an inferior qualification. This
demonstrates that a dispute about a unilateral
change of terms and
conditions of employment either is or can be a dispute of right as
shown in my first example above but is not
necessarily a dispute of
interest. In the light of the above there can, therefore, be no doubt
that the assertion that a dispute
about a unilateral change of terms
and conditions of employment is a dispute of interest is, as shown
above, not correct.
[101] The
dispute between the parties is manifestly a dispute that relates to
training. The first respondent’s attempt in the founding
affidavit
to suggest that the dispute between the parties is not a dispute
relating to training is so lacking in merit that it does
not deserve
any consideration. A dispute of right is not excluded from the ambit
of an unfair labour practice dispute under item
2(1)(b) of schedule
7. There can be no doubt that, where there is a dispute of right that
relates to training, it is possible to
have conduct by an employer
that can be described as unfair conduct or as an unfair labour
practice as contemplated by item 2(1)(b).
Such a dispute would be
arbitrable in terms of item 3(4) of schedule 7 and the CCMA would
have jurisdiction to arbitrate it if there
was no council with
jurisdiction to arbitrate it. It was on the basis that this was a
dispute of right that the commissioner held
that he had jurisdiction
to arbitrate the dispute. On that basis the first respondent’s
contention, and the Court a quo’s conclusion,
that the CCMA had no
jurisdiction to arbitrate the dispute cannot be upheld.
[102] It
is also to be noted that, when the commissioner had to determine
whether the conduct of the first respondent constituted
an unfair
labour practice, he said that the first respondent had
“elected
to present its case on the basis of simply disputing that the
employees had an entitlement to STCW or equivalent training.”
He continued thus:
“As
such, and in the context of having decided against the employer, very
little evidence has been presented explaining the employer’s
underlying reasons for changing conditions of service. In the
circumstances it is difficult to understand the rationality of its
actions and as such it appears to have been done arbitrarily”.
[103] I
find the commissioner’s statement that the first respondent
presented very little evidence giving reasons for its stance
very
surprising. Captain Van der Krol gave extensive evidence to justify
the first respondent’s stance. None of that evidence was
challenged
by the appellants. The commissioner himself did not at any stage
suggest that there was any part of Capt. Van der Krol’s
evidence
that he had difficulty in accepting as true nor does he in his award
say why that evidence cannot be said to prove valid
reasons
justifying the first respondent’s stance. Captain Van der Krol’s
evidence, quite clearly, established that the first
respondent had
legitimate and valid reasons for the stance that it took. It is not
necessary to repeat those reasons here. How the
commissioner could
then suggest that the first respondent presented very little
evidence explaining its reasons for its stance when
he had before him
Captain Van der Kroll’s unchallenged evidence is difficult to
understand. This demonstrates that, although the
commissioner did set
out in his award all of the relevant evidence, he did not take it
into account at the time when it mattered
most to take it into
account. He simply did not properly consider the first respondent’s
defence to the appellants’ claim.
[104] Both
the first respondent, in its heads of argument, and, the Court a quo,
in its judgement, referred to the provisions of sec
64(4) of the Act.
The context in which this was done was that, if the dispute was a
dispute about a unilateral change of conditions
of employment, as the
commissioner had found, the provisions of sec 64(4) were applicable.
The provisions of sec 64(4) read with
sec 64(1) and sec 64(3)(e)
contemplate that a strike may be resorted to in relation to a dispute
about a unilateral change of terms
and conditions of employment. The
first respondent’s Counsel and the Court a quo referred to this as
an indication that the dispute
was a dispute of interest. I think
they had in mind that, since the dispute was one in respect of which
a strike is competent, it
could not also be arbitrable.
[105] Section
64(4) must be read with sec 64(5). The provisions of sec 64(4) and
(5) read thus:.
“
(4) Any
employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions of employment to a
council
or the Commission in terms of subsection (1)(a) may, in the referral,
and for the period referred to in subsection (1)(a)
-
(a) require
the employer not to implement unilaterally the change to terms and
conditions of employment;
or
(b) if
the employer had already implemented the change unilaterally, require
the employer to restore the terms and conditions of employment
that
applied before the change.
(5) The
employer must comply with a requirement in terms of subsection (4)
within 48 hours of service of the referral on the employer.”
[106] It
is clear that sec 64(4) relates to a dispute about a unilateral
change to terms and conditions of employment. It is also
clear that
it affirms that such a dispute can be the subject of a referral in
terms of sec 64(1) which is a referral of a dispute
that can be the
subject of a strike. Accordingly, it can be accepted that a strike is
competent in respect of a dispute about a unilateral
change to terms
and conditions of employment. However, if a dispute about a
unilateral change of conditions of employment can properly
fall
within the provisions of item 2(1)(b) of schedule 7, it will
nevertheless be arbitrable “
Strikeable
”
and arbitrable disputes do not necessarily divide into watertight
compartments. Although in relation to dispute resolution the
Act
contemplates the separation of disputes into those that are resolved
through arbitration, those that are resolved through adjudication
and
those that are resolved through power play, there are disputes in
respect of which the Act provides a choice between power play,
on the
one hand, and, arbitration, on the other, as a means for their
resolution. This is the case, for example, with disputes about
organisational rights. (See sec 65 (2)(a) and (b) read with sec
65(1)(c) and sec 12 -15 and sec 21 and sec 22).
[107] A
dispute about a unilateral change to terms and conditions of
employment, which, as already stated above, is a dispute in respect
of which a strike is competent, may, arguably also be said to fall
within the ambit of an unfair labour practice as defined in item
2(1)(b), especially in relation to training, demotion and the
provision of benefits to an employee. A dispute falling under item
2(1)(b) is, of course, subject to arbitration in terms of item
3(4)(b). The idea of giving such a choice is also to be found in the
Labour Relations Amendments Act, 2002 (Act No 12 of 2002). In sec
189(7) a registered trade union is given a choice, when an employer
has given a notice to terminate employees’ contracts of employment
for operational requirements to either refer the dispute about
such a
termination to the Labour Court for adjudication or to resort to a
strike.
[108] It
is therefore clear from the above that the fact that a strike is
competent in respect of a dispute does not mean necessarily
that it
is not arbitrable in terms of the Act. What needs to be done in each
case is to examine the provisions of the Act to determine
whether
such a dispute is, indeed, not arbitrable. Where the Court a quo
seems to have gone wrong, in my view, is that it adopted
the attitude
that, because the Act had provisions which made a strike competent in
respect of a dispute about a unilateral change
of conditions of
employment, such a dispute could not be arbitrable. That, as I have
shown above, does not follow under the Act.
[109]
The Court a quo also stated in its judgement that a dispute about an
unfair labour practice as contemplated by item 2(1)(b)
refers to
cases where, for example, the employer has acted inconsistently or
arbitrarily or irrationally. The commissioner had categorically
found
that the conduct of the first respondent was arbitrary and was
without
“rationality”.
Therefore,
if the commissioner accepted that the conduct of the first respondent
was irrational or arbitrary, the dispute before him
was one that, on
the Court a quo’s own reasoning, could fall within the ambit of an
unfair labour practice. Accordingly the Court
a quo ought not to have
concluded on the facts of this matter that the dispute could not be
arbitrated in terms of item 3(4) of schedule
7.
[110] Of
course, as stated elsewhere in this judgement, this does not mean
that the findings made by the commissioner that there was
an
agreement between the parties for the provision of the STCW training
or that the individual appellants had a reasonable expectation
or
that the expectation became a condition of service which the first
respondent undermined are correct nor does it mean that they
are
justifiable and rational. As stated elsewhere in this judgement they
are simply unsustainable. In any event, given all of the
above and
the evidence by Captain Van der Krol before the commissioner, there
simply was no basis whatsoever upon which any person
could
justifiably have come to the conclusion that the first respondent had
acted unfairly and had, therefore, committed an unfair
labour
practice against the individual appellants in this matter. The
finding by the commissioner that the first respondent had acted
unfairly and, had therefore, committed an unfair labour practice was
completely unjustifiable and fell to be reviewed and set aside.
[111] In
the light of the above the appeal falls to be dismissed but for
reasons different to those given by the Court a quo for its
order
reviewing and setting aside the award.
[112] In
the result the appeal is dismissed and the appellants are ordered to
pay the first respondent’s costs jointly and severally,
the one
paying the others to be absolved.
_____________
Zondo
JP
I
agree.
____________
Willis
JA
I
agree.
_____________
Van
Reenen AJA
Appearance:
For
the respondent : N.A. Cassim SC
Instructed
by : Mafika Sihlali Attorneys
For
the Applicant : J.G. Grogan
Instructed
by : Schoeman Oosthuizen
Date
of judgement : 20 September 2002