Member of the Executive Council for Transport: Kwazulu-Natal and Others v Jele (DA6/03) [2004] ZALAC 13; [2004] 12 BLLR 1238 (LAC); (2004) 25 ILJ 2179 (LAC) (9 July 2004)

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[2004] ZALAC 13
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Member of the Executive Council for Transport: Kwazulu-Natal and Others v Jele (DA6/03) [2004] ZALAC 13; [2004] 12 BLLR 1238 (LAC); (2004) 25 ILJ 2179 (LAC) (9 July 2004)

29
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: DA6/03
In the matter
between:-
MEMBER OF THE EXECUTIVE COUNCIL
FOR
TRANSPORT: KWAZULU-NATAL
1
1
ST
APPELLANT
PREMIER OF THE PROVINCE OF
KWAZULU-NATAL 2
ND
APPELLANT
V.
CUNLIFF 3
RD
APPELLANT
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL 4
TH
APPELLANT
and
HARRY JELE RESPONDENT
___________________________________________________________
JUDGEMENT
ZONDO JP
Background
[1] In May 2000 the Department of Transport in the
Province of KwaZulu-Natal caused a post of Chief Director: Corporate
Services to
be advertised in the Sunday Times of 21 May 2000. The
respondent, who, at the time, was employed as Deputy Director in the
Department
of Health, KwaZulu-Natal Provincial Government, applied
for appointment to the post. The third appellant also applied for
appointment
to the same post. I am sure that there were other
candidates besides the two who also applied.
[2] The respondent was not successful in his
application. The third appellant was appointed to the post. The
respondent was aggrieved
by his not being appointed. He considered
that the conduct of the first appellant, or, of his Department, not
to appoint him constituted
an unfair labour practice as defined at
the time in item 2(1)(b) of schedule 7 to the Labour Relations Act,
1995 (Act 66 of 1995)(“
the Act
”).
The provision of this item will be quoted shortly. The first
appellant or the Department maintained that the decision was lawful,
fair and justified.
[3] In due course the respondent referred an unfair
labour practice dispute to the General Public Service Sectoral
Bargaining Council,
the fourth appellant, for initially conciliation
and, when conciliation failed, for arbitration, by the bargaining
council. The respondent
based his claim on the provision of item
2(1)(b) of Schedule 7 to the Act. Item 2(1)(b) read thus at the time:
“
For the purposes of this item an unfair labour
practice means an unfair act or omission that arises between an
employer and an employee
involving –
…
the unfair
conduct of the employer relating to the promotion, demotion or
training of an employee or relating to the provision of
benefits to
an employee.”
In terms of item 2(3) and (4) of the same Schedule an
unfair labour practice dispute falling within the ambit of par (b) of
item 2(1)
was required to be referred to arbitration if conciliation
failed. Paragraph (a) dealt with an unfair labour practice dispute
relating
to appointment. The latter dispute was required to be
referred to the Labour Court for adjudication if conciliation failed.
[4] In the bargaining council the point was taken on
behalf of the first and second appellants that the bargaining council
did not
have jurisdiction in respect of the dispute. The basis
advanced for this objection to the bargaining council’s
jurisdiction was
that item 2(1)(b) was not applicable to a dispute
concerning the non-appointment of a candidate to a post but related
to conduct
concerning the promotion of a candidate to a higher post.
It was argued that a candidate can only be promoted by its employer
and
not by someone who is not its employer.
[5] It was further contended that the respondent was
not employed at the relevant time by the first appellant and, because
of that,
it could not be said that the dispute related to promotion
as contemplated by item 2(1)(b). It was submitted that the dispute
related
to non-appointment which fell outside the jurisdiction of the
bargaining council and fell within the jurisdiction of the Labour
Court.
The respondent disputed the correctness of the first and
second appellant’s contention in this regard. He submitted that he
was
employed by the State in the public service and that, if he had
been appointed to the post in question in the Department of
Transport,
KwaZulu – Natal, he would still have been employed by
the State albeit in a different department and such appointment would
have
been a promotion for him. The bargaining council upheld the
first and second appellants’ objection and held that it did not
have
jurisdiction.
[6] The respondent brought an application in the Labour
Court to review and set aside the decision of the arbitrator. The
Labour Court
granted that application. It held that the respondent’s
employer was the State and that his appointment to the post of Chief
Director
in the Department of Transport would have been a promotion
for him and, that, for that reason, the provision of item 2 (1)(b)
was
available to him. Pursuant to an application for leave to appeal
to this Court, the Court a quo granted the first and second
appellants
leave to appeal. This, then, is the appeal against the
order of the Court a quo.
The appeal
[7] The only issue in this appeal relates to the
identity of the respondent’s employer at the time of the decision
not to appoint
him. On behalf of the first and second appellants it
was submitted that the respondent’s employer was the Member of the
Executive
Council for Health, KwaZulu – Natal or the Head of that
Department and that there was no employment relationship between him
and
the first or second appellant and that, for that reason, item
2(1)(b) was not available to him and that the arbitrator had no
jurisdiction
to arbitrate the dispute. It was submitted that the
Court a quo had erred in making the decision that it made in this
regard. The
respondent maintained that his employer was the State and
not the Member of the Executive Council for Health but that the
latter
simply represented the State just as the first appellant also
represented the State in relation to employees in the Department of
Transport in the KwaZulu - Natal Provincial Government and that
appointment to the post of Chief Director in the Department of
Transport
would have been a promotion for him. He submitted that, if
he had been appointed to the post, this would not have meant a change
of employers. He submitted that his employer would have remained the
same, namely, the State.
[8] There can be no doubt that in an unfair labour
practice promotion dispute provided for in item 2 (1) (b) the
applicant must be
in the employ of the employer referred to in item
2(1)(b) before he can rely thereon. In other words there cannot be a
dispute relating
to promotion unless there is an employment
relationship between the parties concerned. However, the question in
this case is who
the respondent’s employer was at the time that the
decision was taken not to appoint him to the post of Chief Director
in the Department
of Transport. If his employer before and after such
decision would have been the same and was the State, the appeal must
fail because
then his appointment to the post in question would have
constituted a promotion. If, however, his employer before the
decision and
his employer after a successful application for
appointment to the post would have been different people or entities,
the appeal
must succeed.
[9] In support of his contention, Counsel for the first
and second appellants referred to certain provisions of the
Constitution as
well as various provisions of certain statutes. I
turn to deal with provisions the Constitution as well as those of
various statutes.
We were referred to some of the provisions that I
shall deal with but there are also others that I deal with to which
we were not
referred but which, in my view, help to throw light on
the issue at hand.
[10] Sec 1 of the Constitution of the Republic of South
Africa NO 108 of 1996 (“the Constitution”) reads in part:
“The
Republic of South Africa is
one,
sovereign, democratic state
founded on
the following values …”
(my emphasis).
Sec 40 of the Constitution provides:-
“40.
Government of the Republic, - (1)
In the Republic, government is constituted as
national, provincial and local spheres of government which are
distinctive, interdependent
and interrelated.
All spheres of government must observe and adhere to
the principles in this chapter and must conduct their activities
within the
parameters that the Chapter provides.”
The chapter referred to in sec 40 (2) deals with
co-operative government.
[11] Sec 85 of the Constitution deals with the executive
authority of the Republic. Sec 85(1) reads:
“The
executive authority of the Republic is vested in the President”.
Sec 85(2)(c) gives the President the
authority of “
co-ordinating the functions of
state departments and administrations
.” Sec
103 of the Constitution gives a list of the provinces of the
Republic. Sec 125 vests the executive authority of a province
in the
Premier of that province. Sec 132(2) provides: “
The
Premier of a province appoints the members of the Executive Council,
assigns their powers and functions and may dismiss them.
”
Sec 133(1) provides that “(
m)embers of the
Executive Council are responsible for the functions of the executive
assigned to them by the Premier.”
Chapter
10 of the Constitution deals with public administration. Sec 195(1)
provides that
“(P)ublic administration must
be governed by the democratic values and principles enshrined in the
Constitution, including the following
principles”
and various principles are then set out. Subsection 2 then provides
that those principles
“apply to
Administration in every sphere of government;
Organs of state
public enterprises.”
[12] Sec 196(1) of the Constitution provides: “
There
is a single Public Service Commission for the Republic.”
Subsection (2) provides, among other things, that the Public Service
Commission “
must exercise its powers and
perform its functions … in the interest of the maintenance of
effective and efficient public administration
and a high standard of
professional ethics in the public service.”
Sec 196(4) sets out powers and functions of the Public Service
Commission. These include the power “
to
propose measures to ensure effective and efficient performance within
the public service;”
,
“to
give directions aimed at ensuring that personnel procedures relating
to recruitment, transfers, promotions and dismissals comply
with the
values and principles set out in section 195”
,
“
to investigate grievances of employees in
the public service concerning official acts or omissions, and
recommend appropriate remedies,
and to advise national and provincial
organs of state regarding personnel practices in the public service,
including those relating
to the recruitment, appointment, transfer,
discharge and other aspects of the careers of employees in the public
service.”
[13] Sec 197 of the Constitution deals with public
service. It provides thus:.
“
(1)
Within
pubic administration there is a public service for the Republic,
which must function and be structured, in terms of national
legislation, and which must loyally execute the lawful policies of
the government of the day.
(2) The terms and conditions of employment in the
public service must be regulated by national legislation. Employees
are entitled
to a fair pension as regulated by national legislation.
Provincial governments are responsible for the
recruitment, appointment, promotion, transfer and dismissal of
members of the public
service in their administrations within a
framework of uniform norms and standards applying to the public
service.”
[14] In sec 213 of the Act public service is defined as
meaning
“the national departments,
provincial administrations, provincial departments and organizational
components contemplated in section
7 (2) of the Public Service Act,
1994 (promulgated by Proclamation 103 of 1994 but excluding
(a) the members of the South African National Defence
Force
(b) the National Intelligence Agency; and
(c) the South African Secret Service.”
Section 239 of the Constitution defines the phrase
“organ of state”
as
meaning:
“
(a) any
department of state or administration in the national, provincial or
local sphere of government; or
(b) any other functionary or institution –
exercising power or performing a function in terms
of the Constitution or a provincial constitution;
exercising public power or performing a public
function in terms of any legislation, but does not include a court
or a judicial
officer.”
[15] It is clear from sec 197(4) of the Constitution
that employees employed in the provincial governments are part of the
public
service particularly in the light of the definition of public
service in the Act. It is clear from sec 197(3) of the Constitution
that provincial governments have the authority or power to recruit,
appoint, transfer, promote and dismiss members of the public
service
in their administrations. It is also clear from the definition of
“organ of state”
that a department in a provincial administration is an organ of the
state.
[16] There is no definition of the word “
employer
”
in the Act. However, there is one for the word “
employee
”
in sec 213 of the Act and Counsel for the first and second appellants
referred us to that definition. The word “
employee”
is defined in sec 213 of the Act as meaning –
“
(a) any
person, excluding an independent contractor, who works for another
person or for the State and who receives, or is entitled
to receive,
any remuneration; and
(b)
any
other person who in any manner assists in carrying on or conducting
the business of an employer,”
and
‘
employed
’ and
‘
employment
’ have
meanings corresponding to that of ‘employee’.
[17] From the definition of the word “
employee
”
in sec 213 of the Act, there can be no doubt that the State is an
employer. The respondent was employed in a provincial government
department. A provincial government is part of the State.
Accordingly, unless there is a statutory provision which suggests
strongly
that there is another entity other than the State which was
the respondent’s employer, it should be accepted, on the basis of
the
definition of
“employee”
in sec 213 of the Act and the fact that it is common cause that the
respondent worked in a provincial government department, that
his
employer was the State and that, if he had been appointed to the
post, his employer would have continued to be the State. Accordingly,
the definition of the word “
employee
”
does not assist Counsel for the first and second appellants.
[18] In support of his contention Counsel for the first
and second appellants also referred to the definition of the word
“
workplace
” in the
Act as amended by the Labour Relations Amendment Act, 2002 (Act No 12
of 2002). In particular he referred to par (a)(ii)
of that
definition. It provides that the word “
workplace”
means
“(a) in
relation to the public service-
(i) for the purposes of collective bargaining and
dispute resolution, the registered scope of the Public Service
Co-ordinating Bargaining
Council or a bargaining council in a sector
in the public service, as the case may be; or
(ii) for any other purpose, a national department,
provincial administration, provincial department or organizational
component contemplated
in section 7(2) of the Public Service Act,
1994 (promulgated by Proclamation NO. 103 of 1994), or any other part
of the public service
that the Minister for Public Service
Administration, after consultation with the Public Service
Co-ordinating Bargaining Council,
demarcates as a workplace.”
(b) …
(c) in all other instances means the place or places
where the employees of an employer work. If an employer carries on or
conducts
two or more operations that are independent of one another
by reason of their size, function or organisation, the place or
places
where employees work in connection with each independent
operation, constitutes the workplace for that operation.”
[19] The definition of the word “
workplace
”
does not in any way support the submission by Counsel for the first
and second appellants in regard to the identity of the respondent’s
employer. The fact that a provincial department may be a workplace on
its own is neither here nor there. That cannot make it the
employer
nor is it a useful factor in the determination of the identity of the
respondent’s employer. Even in the private sector
different
branches of a company which operate in different places may be
workplaces in their own right in terms of that part of the
definition
of the word
“workplace”
which
applies to the private sector. In regard to the private sector that
would not mean that each branch is the employer of the
employees
working in that branch. The company would still be the employer of
all the employees in the various branches as well as
those based at
the headquarters of the company. (see par (c) of the definition of
the word “
work place
”
in sec 213 of the Act.)
[20] The provisions of sec 197(1), (2) and (4) of the
Constitution have been quoted above. At this stage it is not
necessary to quote
them again. It is sufficient to simply make the
points that:
(a) subsection (1) gives recognition to the existence
of a public service for the country which, it says in part, must
function and
be structured in terms of national legislation and,
(b) subsection (2) provides that the terms and
conditions of employment in the public service must be regulated by
national legislation.
Subsection (4) clearly contemplates that employees
employed in the provincial governments are part of the public
service. It provides:
“Provincial
governments are responsible for the recruitment, appointment,
promotion, transfer and dismissal of members of the public
service in
their framework of uniform norms and standards applying to the public
service.”
[21] In terms of the preamble to the Public Service Act,
1994 (Act 103 of 1994) (“
the PSA
”)
the purpose of that Act is “
to provide for
the organisation and administration of the public service of the
Republic, the regulation of the conditions of employment,
terms of
office, discipline, retirement and discharge of members of the public
service, and matters connected therewith
.”
In sec 1 the term “
public service
”
is defined as meaning “
the public service
contemplated in section 8
.” Sec 8(1) sets
out what the public service consists of. Sec 8(1)(a) reads thus:
“The
public service shall consist of persons who –
hold posts on the fixed establishment –
classified in the A division and the B division
in the services;
in the Academy, the Agency or the Service; and
in
the state educational institutions”
:
Fixed establishment as referred to in sec 8(1) (a) is
defined in sec 1 as meaning “
the posts which
have been created for the normal and regular requirements of a
department.”
A “
department
”
is defined as meaning “
a national
department, a provincial administration or a provincial department.”
From the definition of “
fixed
establishment”
, that of “
department
”
and the provision of sec 8(1)(a), it is clear that employees in a
provincial department are employed in the public service.
[22] The provisions of Sec 8(1)(b) and (c) provide,
respectively, that, among persons in the public service are those
who,
“
8(1)(b) having
ceased to hold posts on the fixed establishment contemplated in
paragraph(a), and not having retired or having been
discharged, are
employed additional to the fixed establishment or who are deemed to
continue to hold posts under the circumstances
contemplated in
sub-section 3(c);
(ii) are appointed permanently additional to the
fixed establishment;
(c) (i) hold posts on the fixed establishment other
than posts referred to in paragraph (a);
(ii) are employed temporarily or under a special
contract in a department, whether in a full-time or part-time
capacity, additional
to the fixed establishment or in vacant posts on
the fixed establishment.”
[23] Sec 7(1) of the PSA provides that the public
service established by sec 197(1) of the Constitution “
shall
be structured and organized as provided for
”
in national legislation. The PSA is, in my judgement, such national
legislation. Sec 7(2) reads: “
For the
purposes of the administration of the public service there shall be
national departments and provincial administrations mentioned
in the
first column of Schedule 1, provincial departments mentioned in the
first column of Schedule 2 and the organizational components
mentioned in the first column of Schedule 3.”
Sec 7(3)(a) provides that
“(e)ach department
shall have a head of department who as an officer shall be the
incumbent of the post on the fixed establishment
bearing the
designation mentioned in the second column of Schedule 1 or 2
opposite the name of the relevant department or the officer
who is
acting in that post
.” Sec 7(3)(b) provides
that
“(s)ubject to par(c) and (d), a head of
department shall be responsible for the efficient management and
administration of his or
her department, including the effective
utilisation and training of staff, the maintenance of discipline, the
promotion of sound
labour relations and the proper use and care of
State property and he or she shall perform the functions that may be
prescribed.”
[24] Sec 9(1) of the PSA gives the power to appoint,
transfer or promote an officer or employee “
in
the employ of a department
” to the relevant
executing authority or an officer or officers to whom such authority
has been delegated by the person who has
such authority. Sec 9(2)
requires that, subject to the provisions of chapter IV, appointments
and promotions in, and transfers in
or to, the public service be made
in such manner and on such conditions as may be prescribed. Sec 14(1)
provides that
“(s)ubject to the provisions
of this Act every officer or employee may, when the public interest
so requires, be transferred from
the post or position occupied by him
or her to any other post or position in the same or any other
department irrespective of whether
such a post or position is in
another division or is in a lower or higher grade or is within or
outside the Republic
”. Sec 14(2)(b)
provides that, when a transfer is from one department to another
department, the approval of the persons who, in
respect of each of
those departments, have the power to transfer must first be obtained.
[25] Sec 30(a) reads: “
Unless
it is otherwise provided for in his or her conditions of employment –
(a) every officer and employee shall place the whole
of his or her time at the disposal of the State;”
The word “
officer
”
in sec1 of the PSA is defined as meaning “
a
person who has been appointed permanently, notwithstanding that such
appointment may be on probation, to a post contemplated in
section 8
(1)(b) or 8 (3)(c).”
The word
“employee”
in the PSA is defined as meaning
“a person
contemplated in section 8 (1) (c).”
It
seems to me that, read with the definitions of
“officer
”
and “
employee
”,
the provision of sec 30(a) is such that it covers every person
employed within the public service as contemplated in sec 8 of
the
PSA. That being the case, the respondent must, no doubt, also have
been a member of the public service in the position he held
when he
was unsuccessful in his application for appointment to the post in
question. It also seems to me that, in the light of those
definitions, if the respondent had been appointed to the post, he
would have continued to be employed within the public service.
[26] The provision of sec 30 (a) of the PSA is a strong
indication, if not a decisive factor, that, unless there is another
statutory
provision elsewhere specifying another person or entity as
an employer for some officers or employees as defined in sec 1 of the
PSA, the employer of every officer and every employee as contemplated
in sec 30 (a) read with the definitions of the terms
“officer”
and
“employee”
in sec 1 of the PSA, is the State. It is also a strong indication
that, if the definitions of the terms “
officer”
and “
employee
” in
the PSA cover everyone employed in the public service as contemplated
in sec 8 of the PSA, then the State is the employer of
everyone in
the public service contemplated by sec 8 of the PSA. Obviously,
anyone in respect of whom there is a specific statutory
provision
specifying some or other entity or official or functionary as the
employer is in law employed by that person, entity or
official or
functionary.
[27] In the case of educators it is to be noted that the
Employment of Educators Act No 76 of 1998
makes a specific provision
as to who the employer of educators is in certain circumstances or
for certain purposes. The definition
of the word “
employer
”
in that Act means, in relation to any provision of Chapters 4, 5 or 7
which applies to, or, is connected with, an educator in
the service
of the national department of education, the Director–General; in
so far as such provision applies to, or, is connected
with, an
educator in the service of a provincial department of education, the
word “
employer
” is
defined as meaning the Head of Department. Section 3(1)(a) of that
Act provides that, save as is otherwise provided for in
that section,
the Director –General shall be the employer of educators in the
service of the Department of Education in the posts
on the educator
establishment of the said Department. Sec 3(1)(b) provides that, save
as is otherwise provided for in that section,
the Head of Department
shall be the employer of educators in the service of the provincial
department of education in the posts on
the educator establishment of
that department. Subsections 2, 3, 4 and 5 make other provisions
relating to the identity of the employer
of certain educators or of
educators for certain purposes.
[28] I have said that the effect of sec 30 (a) is that
all officers and employees in the public service as contemplated in
sec 8 of
the PSA are employed by the State and the State is their
employer. I say this because the provision of sec 30 (a) is worded in
a
manner that is similar to saying that officers and employees make
their capacity to produce over to the State. In my judgment that
is
what sec 30 (a) means. A person who makes his capacity to produce
over to another is an employee of the other person (see Brassey:
“The
Nature of Employment”
(1990)
11 ILJ 889 at 899
and
935 – 936
as approved
in Niselow v Liberty Life Association of Africa Ltd (1998) 19 ILJ 752
(SCA) at 753J – 754A)
. Accordingly,
officers and employees are employed by the State. I have no doubt
that the respondent fell within one of these two
terms in his
position and would have continued to fall within one of these terms
had he been appointed to the position for which
he had applied.
[29] Sec 40 of the PSA deals with the limitation of
State liability. It reads thus:
“
Whenever any person is conveyed in or makes use of
any vehicle, aircraft or vessel which is the property of the State,
the State or
a person in the service of the State shall not be liable
to such person or his or her spouse, parent, child or other dependant
for
any loss or damage resulting from any bodily injury, loss of life
or loss of or damage to property caused by or arising out of or
in
any way connected with the conveyance in or the use of such vehicle,
aircraft or vessel, unless such person is so conveyed or
makes use
thereof in, or in the interest of, the performance of the functions
of the State: Provided that the provisions of this
section shall not
affect the liability of a person in the service of the State who
willfully causes the said loss or damage.”
Sections 30(a) and 40 of the PSA refer, quite clearly,
to, among others, persons in the service of the State, once again
emphasizing
the notion of the State as an employer.
[30] In support of his contention Counsel for the first
and second appellants also referred to the definition of the word
“
employer”
in sec
1 of the Public Service Labour Relations Act, 1994 (the PSLRA”).
Sec 1 (xiii) of the PSLRA defines the word
“employer”
as meaning
“the State as employer as
represented-
(a) at central level, by representatives appointed
for that purpose by the responsible Minister; and
(b) at
departmental level, by representatives appointed for that purpose by
head of department concerned”
A department is defined in sec 1 (viii) as meaning
“a
department as defined in section 1 (1) of the Public Service Act.”
Sec 1 of the PSA defines a department as
meaning
“a national department, a provincial
administration or a provincial department.”
The word
“employee”
in the PSLRA is defined as meaning “
an
officer or employee as defined in section 1(1) of the Public Service
Act, and includes, for the purposes of section 18,22(2)(a),
23, 24
and 25, as well as section 22 in so far as it pertains to the said
sections, a person who was such an officer or employee,
but does not
include-
(a) a person employed in terms of an Act other than
the Public Service Act; and
(b) a person whose salary and conditions of
employment are determined according to general education policy in
terms of section 2(1)(b)
and (2) of the National Policy for General
Education Affairs Act, 1984 (Act NO 76 of 1984).”
In this connection Counsel drew our attention to the
fact that the PSLRA is one of the Acts which were repealed by sec 212
of the
Act (see schedule 7 to the Act). He also drew our attention to
the fact that item 15 of schedule 7 to the Act provides that, read
with the changes required by the context, certain of the provisions
of the PSLRA which include section 1, assumed when the Act come
who
operation, unless the context indicated otherwise, the status of
provisions of a collective agreement “
binding
on the State, the parties to the chambers of the Public Service
Bargaining Council and all employees in the public service.
”
[31] Counsel also drew our attention to the provisions
of sec 212(2) and (3) of the Act. Sec 212(2) reads: “
The
repeal of [the laws mentioned in schedule 6 which include the Public
Service Labour Relations Act, 1994] does not affect any transitional
arrangements made in schedule 7.”
Sec
212(3) provides that the transitional arrangements in Schedule 7 of
the Act must be read and applied as substantive provisions
of the
Act. Sec 212(3) may be in conflict with the provision of item 15 to
the extent that the last mentioned provision is to the
effect that
certain parts of the provisions of the PSLRA set out therein have the
status of provisions of a collective agreement.
Happily, it is not
necessary for purposes of this judgement to decide whether, indeed,
the two are in conflict with each other and,
if so, what the legal
effect thereof is.
[32] An observation needs to be made at this stage that
item 15 of Schedule 7 expressly provides that the provisions of the
PSLRA
set out in that item are binding on, among others, “
the
State,
the parties to
the Public Service Bargaining Council and
all
employees in the public service.”
(underlining supplied). Quite obviously the State is referred to in
that item as the employer of persons employed in the public service
because that is the capacity in which the provisions of the PSLRA
refer to the State. (see the definition of “
employer
”
in sec 1 of the PSLRA). Counsel for the first and second appellants
also sought to rely on the reference to the “
parties
to the Public Service Bargaining Council”
appearing
in item 15 to support the contention that individually government
departments are employers in their own rights. The argument
seems to
have been that government departments are employers who are also
parties to the Public Service Bargaining Council or to
its
constituent Chambers. Along this submission Counsel for the first and
second appellants submitted that the provisions of sec
5 of the PSLRA
fortified the contention that provincial departments are employers in
their own right and that, therefore, the respondent’s
employer was
the provincial department of Health or the Member of the Executive
Council for Health and not the State.
[33] Sec 5(1) of the PSLRA reads: “
There
is hereby established a Public Service Bargaining Council.”
Sec 5(2) reads: “
The Council [which in terms
of the definition of the word “council” in section 1 of the PSLRA
means the Public Service Bargaining
Council]
shall consist of a chamber at central level, a
chamber for each department at departmental level,
and
the parties in the various chambers shall be the employer concerned
and such employee organizations as are
admitted to the relevant chamber in accordance with the provisions of
this Act and the constitution
of the relevant chamber of the Council”
(underlining supplied). The definition of a department has already
been given above. Accordingly, it is not necessary to repeat it.
Sec
5(3) of the PSLRA goes on to provide that “(a) p
arty
in a chamber of the Council shall be represented by a person
authorized thereto by such party or by law.”
Subsection (4) then reads: “
The employer’s
power in regard to the subject to be negotiated, shall determine in
which chamber of the Council negotiations shall
take place, and shall
also determine the representation of the employer as contemplated in
the definition of employer.”
[34] It is clear that in each of the different chambers
of the Public Service Bargaining Council there would be at least one
employer
party and one or more employee organisations which have been
admitted to that chamber. However, that does not necessarily mean
that
each employer party is the employer in the true sense. It simply
is a representative of the employer. This has to be so for at least
two reasons. The one is that the definition of the word “
employer
”
in sec 1 of the PSLRA gives only one legal entity as the employer and
that is the State. That definition has already been given
earlier in
this judgment and need not be repeated. Accordingly, whenever the
word “
employe
r” is
used anywhere in the PSLRA, it has to mean the State, which, as
employer, may be represented by different representatives
at
different levels. Furthermore, the provision of ss(4) of sec 5 of the
PSLRA makes it clear, after a reference to the idea that
there are a
number of chambers, that the employer is the same and it is the
State. Subsection (4) makes this clear when towards the
end it says
“… and shall also determine the
representation of the employer as
contemplated in the definition of employe
r.”
(underlining supplied).
[35] In my judgement the clarification provided by sec
5(4) of the PSLRA that there is only one employer – who may be
represented
by different representatives at different levels in
different chambers – demonstrates as clearly as it possibly can be
demonstrated
that there is absolutely no support in the provisions of
the PSLRA for the submission made by Counsel for the first and second
appellants
that the respondent’s employer was the Health Department
or the Member of the Executive Council for Health. As the PSLRA makes
it clear that the State is the employer of employees in both national
government departments as well as in provincial administrations
and
provincial departments, to the extent that any Act other than the
Constitution may provide otherwise, the provisions of the PSLRA
would
prevail. This is so because in terms of ss(3) read with ss(1) and (2)
of sec 212 of the Act the provisions of the PSLRA are
to be read and
applied as substantive provisions of the Act and this means that sec
210 of the Act applies to them. Sec 210 provides
that in the event of
a conflict between the provisions of the Act and any other law,
excluding the Constitution or any Act expressly
amending the Act, the
provisions of the Act prevail.
[36] Counsel for the first appellant submitted that a
conclusion that the State is the employer of any employee who works
for a national
or provincial department would create a number of
“
insusperable
”
difficulties. He submitted that the first one was that sec 2 of the
Act provides that the Act does not apply to members of the
National
Defence Force, the National Intelligence Agency and the South African
Secret Service. He also referred to the definition
of “
public
service
” in sec 213 of the Act which
includes the national departments, provincial departments but also
makes the same exclusions made
in sec 2 of the Act. He also referred
to the fact that item 1 of Schedule 7 of the Act excludes persons
employed in the education
sector from membership of the public
service. He went on to point out that in setting out the composition
of the public service,
sec 8 of the PSA includes as part of the
public service members of the National Defence Force, the National
Intelligence Agency and
the South African Secret Service. Counsel
then submitted that such a conclusion would mean that the State is
the employer of the
members of the excluded entities and yet, unlike
other employees of the State, such members would not be able to
utilise item 2(1)(b)
of Schedule 7 if they had a dispute relating to
promotion. He submitted that that would be unfair discrimination
against the employees
of such entities which would be in breach of
sec 9 of the Constitution. That is the equality provision.
[37] The answer to Counsel’s argument in this regard
is that the exclusion of members of the National Defence Force, the
National
Intelligence Agency and the South African Secret Services is
based upon sec 2 of the Act. Accordingly, when the State is defined
in sec 213 of the Act as the employer in relation to the public
service, this is a reference to the employer of those employees of
the State who are not excluded from the application of the Act. The
excluded employees may well be adequately provided for in another
Act
and, if that is so, they could not have any cause for complaint about
unfair discrimination on the basis that they are excluded
from using
item 2(1)(b).
[38] Counsel for the first and second appellants
referred to the fact that in 1997 the definition of the word
“
employer
” in the
PSA which meant “
employer
”
as defined in the PSLRA was deleted by an amendment of the PSA.
Counsel then submitted that this supported the contention that
in the
public service there is a multiplicity of employers and the State is
not the employer of employees in national and provincial
departments.
One answer to this is simply that the word
“employer”
with which this matter is
concerned is in the Act and not the PSA and it is clear from both the
Act and the PSLRA – the latter
being said in terms of sec 212 of
the Act to be substantive part of the Act – that the word
“
employer
” in item
2(1)(b) of Schedule 7 of the Act means, in relation to the public
service, the State as the employer and that in that
capacity the
State also employs employees such as the respondent who are employed
in provincial departments.
[39] In these circumstances I conclude that the
respondent’s employer for purposes of item 2(1)(b) was the State.
That employer
would have continued to be his employer even after
appointment to the post of chief director in the Department of
Transport if he
had been appointed. The first appellant and the
Member of the Executive Council for Health, KwaZulu-Natal, are simply
representatives
of the State.
[40] In the light of the conclusion that I have reached
above, the appeal must fail. There is no reason why costs should not
follow
the result.
[41] In the premises
I make the following order:
1. The appeal is dismissed.
2. The first appellant is ordered to pay the
respondent’s costs.
Zondo JP
I agree.
Willis JA
I agree.
Davis AJA
Appearances:
For the respondent : Mr B. Purdon
Instructed
by : Brett Purdon Attorneys
For the appellant : Adv V. Soni SC
Instructed
by : The State Attorney
Date of judgement : 9 September 2004
1
The
1
st
appellant had been cited as Minister of Transport, Kwazulu-Natal. It
was common cause that what was meant was the Member of the
Executive
Council for Transport, Kwazulu Natal. Constitutionally there is no
functionary known as the Minister of Transport in
a provincial
government. Accordingly, the correct citation has been substituted.