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[2014] ZALAC 76
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Department of Correctional Services (Western Cape) v Democratic Nursing Organisation of South Africa and Others (CA7/13) [2014] ZALAC 76 (18 December 2014)
REPUBLIC
OF SOUTH AFRICA
LABOUR APPEAL COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
Case no: CA7/13
In
the matter between
DEPARTMENT
OF CORRECTIONAL SERVICES
(WESTERN
CAPE)
.............................................................................................
.......
Appellant
and
DEMOCRATIC
NURSING ORGANISATION OF
SOUTH
AFRICA (DENOSA) obo DE ERASMUS
..................................
....
First
Respondent
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING
COUNCIL
....................................................
Second
Respondent
PH
KIRSTEN
N.O
.....................................................................................
.....
Third
Respondent
Heard:
.............
20
May 2014
Delivered:
.......
18
December 2014
Summary:
Interpretation and application of a collective agreement:
Occupational Specific Dispensation (OSD) for Nurses –
translation of employee into the correct position in terms of the OSD
– employee a
professional
nurse managing a nursing speciality unit translated into a lower
salary scale- employer contending employee not having
necessary
qualification to be translated into a higher salary scale- arbitrator
upholding employer’s contention. Labour Court
setting aside
arbitrator’s award. Appeal – duties performed at the date
of the OSD taken into account for the translation
of employee –
employee performing managerial function entitled to be translated to
the salary scale of manager – Labour
Court’s judgment
upheld – appeal dismissed with costs.
Coram:
Tlaletsi DJP, Ndlovu JA
et
Coppin AJA
JUDGMENT
TLALETSI
DJP
Introduction
[1]
This is an appeal by the Department of
Correctional Services against a judgment and order of the Labour
Court (per Rabkin-Naicker
J) in a review application brought in that
Court by the first respondent (a trade union – hereinafter
referred to as the
respondent) against an arbitration award issued by
the third respondent (the commissioner) under the auspices of the
second respondent,
the Public Health and Social Development Sectoral
Bargaining Council (the Bargaining Council).
[2]
The arbitration concerned a dispute
between the appellant and the respondent, acting on behalf of its
member (the employee) employed
by the appellant, about the
interpretation and application of a collective agreement.
Factual Background
[3]
The factual narrative that led to the
dispute is largely common cause. On 10 September 2007, a Collective
Agreement as per Resolution
No 3 of 2007 was concluded between the
State and various other trade unions, including the respondent,
representing nurses employed
by the State. The Collective Agreement
Resolution No. 3 of 2007 is known as the “Agreement on
Implementation of an Occupational
Specific Dispensation for Nurses”
(OSD for Nurses).
[4]
The objective of the OSD for Nurses is
recorded in Clause 1 as:
‘
1.1
To introduce an occupational specific remuneration and career
progression system for Professional Nurses (Registered Nurses).
Staff
Nurses (Enrolled Nurses) and Nursing Assistants (Enrolled Nursing
Assistants) who fall within the registered scope of PHSDSBC
that
provides for –
1.1.1
career
pathing;
1.1.2
pay
progression;
1.1.3
grade
progression;
1.1.4
recognition
of appropriate experience;
1.1.5
increased
competencies;
1.1.6
and
performance
with
a view to attracting and retaining nursing professionals in all the
identified occupations to the public health sector.
1.2.
To introduce differentiated salary scales for identified
categories of nursing professionals based on a new remuneration
structure.
1.3
To incorporate the existing scarce skills allowance payable to
identified categories of speciality nurses into salary.’
[5]
Clause 3.2.5.3 deals with the “translation” of a
Professional Nurse to a Speciality post and provides that:
‘
3.2.5.3
Translation of Professional Nurse (Registered Nurse) to speciality
posts
i.
A
Professional Nurse (Registered Nurse) who occupies a post in a
nursing speciality and who –
a.
is
in possession of a post-basic clinical nursing qualification listed
in Government Notice R212, as amended, shall translate to
the
appropriate speciality post; and
b.
is
not in possession of a post-basic clinical nursing qualification
listed in Government Notice R212, as amended, but who has been
permanently appointed in a post in a speciality unit and has been
performing these duties of the speciality post satisfactorily
on 30
June 2007, shall be translated as a once-off provision to the first
salary scale attached to the production level.
ii.
A Professional Nurse (Registered Nurse) referred to in (i)(b)
shall not progress by means of grade progression to the
higher salary
scale attached to a post in the clinical speciality without first
having obtained the required educational qualification
in the
clinical speciality listed in Government Notice R212.
Iii.
A
Professional Nurse (Registered Nurse) who is managing a nursing
speciality unit, and who is not in possession of a post-basic
clinical nursing qualification listed in Government Notice R212, as
amended, but who has been performing these duties of managing
the
speciality unit satisfactorily on 30 June 2007, shall be translated
as a once-off provision to the appropriate salary scale
attached to
the corresponding management level.
’
[Emphasis
provided]
[6]
Clause 3.2 of the OSD for Nurses provides that the Minister for
Public Service and Administration was required to issue
a Directive
to give effect to the Collective Agreement for its implementation.
The Director General in the Department of Public
Service and
Administration issued this Directive on 28 September 2007. The
Directive incorporated,
inter alia
, the terms of clause
3.2.5.3 of the OSD for Nurses
verbatim
. The directive is known
as DPSA Implementation Directive.
[7]
It is common cause that on 7 August 2009, a settlement agreement
was entered into pursuant to a dispute between the appellant
and the
trade unions, representing the nurses employed by the State, under
case no: PHSHS492-08/09 of the Bargaining Council. Clause
3c of the
aforesaid agreement recorded the terms of Clause 3.2.5.3 of the OSD
for Nurses verbatim and in clause 3a, it recorded
that “
The
basis of translation to the OSD for Nurses shall be the duties that a
Nurse was performing as at 30 June 2007
.” The settlement
agreement did however not amend the OSD for Nurses agreement.
[8]
According to the employee, prior to the implementation of the
OSD for Nurses, on 1 July 2007 she was employed in the position
of
Head of Department: Healthcare Services at the Obiqua Correctional
Centre in the Allandale Management Area at Paarl, Western
Cape. Her
duties were of a managerial nature and included administration,
supervision and primary healthcare tasks. Her duties
prior to the
implementation of the OSD for Nurses remained the same after the
implementation and she performed her duties satisfactorily.
According
to her, Obiqua Correctional Centre is a primary health centre and is
a speciality unit.
[9]
As at 30 June 2007, the employee was not in possession of a
post-basic clinical nursing qualification accredited with the
SA
Nursing Council in terms of Government Notice R212. She obtained such
a qualification in 2009, meaning that she did not hold
it at the
relevant time for the purposes of the OSD for Nurses. However,
despite having been employed as manager of a speciality
unit by the
appellant on 30 June 2007 and performing such duties satisfactorily,
she was not, with the implementation of the OSD
for Nurses,
translated to what she regarded as the appropriate salary scale
attached to the corresponding management level. The
corresponding
management level of the post of the manager of a speciality unit on
30 June 2007 was the post of Operations Manager:
Nursing which
carried the minimum salary scale in terms of the OSD for Nurses of
R235 000.00 per annum. She was instead translated
to a minimum salary
scale of R160 000.00 per annum in the first phase of implementation
of the OSD for Nurses and later advanced
to a salary scale of R183
000.00 in the second phase of implementation.
[10]
The appellant however contended as follows: that the employee
had been working as a Clinical Nurse Practitioner at the
Obiqua
Correctional Centre from 1995 being employed to perform production
work. Obiqua is but one of several centres which fall
under the
management area of Allandale and before July 2007 none of these
centres had a financed post of a Section Head, except
the Allandale
Management area. The employee, as in many other centres, represented
her division at meetings and performed the duties
of Section Head
although that was not her post. She was also not paid as a Section
Head. The appellant contended further that it
was simply common
practice in the Department that where two or more officials on the
same rank and salary level are functioning
in the same section, and
there is no post for a Section Head, one of the officials is tasked
to supervise or act as a Section Head.
He/she would however not be
paid a salary and benefits if any, of Section Head.
The Arbitration Award
[11]
The commissioner made the following remarks in his analysis of
the evidence as well as the parties’ respective cases:
11.1
The duties performed by the
employee were the same as prior the implementation of the OSD
agreement for Nurses on 1 July 2007 and
they included managerial
duties. That was not the only qualification for an employee to be
translated to the OSD for Nurses. She
did not meet the second
qualification in that she did not have a qualification in primary
healthcare which she only obtained at
the end of 2009.
11.2 The employee was translated
to the appropriate salary scale attached to the corresponding
“managing level”
because she did not have the necessary
post basic clinical nursing qualification at the relevant time. She
was translated from
a clinical nurse practitioner to division head.
She was not entitled to be translated to an operational manager post.
11.3 That the appellant did not
act inconsistently with reference to Sister Jens who, according to
the employee, did not have
the necessary qualification at the
relevant time but was translated to an operational manager in terms
of the OSD for Nurses. “
Even if there was inconsistency it
cannot assist the [employee] in this matter
.”
The Review
[12]
The respondent’s application was dismissed with no order
as to costs by the commissioner. Aggrieved by this decision
the
respondent sought to review the award of the commissioner on the
grounds that the award was defective because the commissioner
failed
to apply the provisions of sub-paragraph (iii) of Clause 3.2.5.3 of
the OSD for Nurses and caused the employee to be translated
as a
once-off provision to the appropriate scale attached to the
corresponding management level; the commissioner committed a gross
irregularity and exceeded his powers by ignoring the plain language
and provisions of the OSD for Nurses agreement and made an
award
which is plainly in contrary to its provisions.
[13]
The Labour Court remarked
inter alia
, that there appeared
to be a “
disjunctive between the remedy sought at
arbitration and submissions before the Labour Court
” on the
application of the OSD Agreement for nurses in that, at the
arbitration proceedings, the employee and her representative
submitted that she was expecting to be translated to the lowest
salary scale of operational manager and that she also expected
that
the name of her post would change to that of operational manager.
However, she averred in the founding papers that in
any event, in
terms of the OSD for Nurses, what she was entitled to was translation
to the appropriate salary scale, and not translation
to the post
itself.
[14]
The Labour Court further recorded the appellant’s case at
the arbitration and in the Labour Court was that in terms
of the
Directive on implementation of OSD for Nurses existing posts had
first to be converted to OSD posts on the establishment
before
nurses could be translated into those posts; that an employee could
not be translated to a post if that post did not
exist after due
alignment of the “
persal
” system with the
organizational post structures contained in the relevant OSD
establishment, and that in this case no such
post was established for
Obiqua Prison Hospital.
[15]
Having considered the submissions by the parties as well as
Clause 3.2.5.3 (iii) as well as the Implementation Directive,
the
Labour Court held that:
‘
12.
Given the clear wording of the clause above, the finding by the
arbitrator that the correct salary scale to which [the
employee] was
translated was that of clinical nurse practitioner because she did
not have the requisite qualification to be translated
to the
operational post, does indeed amount to a reviewable irregularity.
The arbitrator did not apply his mind properly to the
relevant
‘once-off’ translation provision in respect of salary
scale which applied to [the employee].
13.
In the result, the ultimate decision reached by the arbitrator
was not one that a reasonable decision maker could
make given that he
committed the latent gross irregularity referred to above. His flawed
reasoning led to an ultimate award that
dismissed [the employee’s]
application
in toto
. This denied [the employee] the once-off
salary increase to which she was entitled in terms of the collective
agreement, read with
the directive on implementation.’
[16]
The Labour Court found it appropriate to set aside the award and
substitute its own finding. The Labour Court held that
“
a
proper reading of the Agreement, together with the Implementation
Directive, and given her qualifications as of 30 June 2007 [the
employee] was entitled to the once-off salary increase, but not to be
designated as an operational manager in terms of the applicable
process of restructuring the establishment in line with new OSD’s
.”
The
Labour Court consequently found that the award was reviewable and set
it aside. The appellant was translated on a once-off basis
to the
salary scale of R235 000.00 per annum, retrospective to 1 July 2007
and no costs order was made.
The Appeal
[17]
The grounds upon which the judgment and order of the Labour
Court are challenged are that the Labour Court erred and/or
misdirected itself, and misinterpreted the applicable collective
agreement in that: its decision amounts to allowing individuals
to be
translated in vacuum, contrary to the OSD for Nurses agreement;
despite the available evidence that the employee did
not occupy
a management post at the relevant time for purposes of applying the
OSD for Nurses agreement, the Labour Court nevertheless
applied the
OSD for Nurses agreement as if she worked in a management post; the
Labour Court’s interpretation creates an
expansion of
establishments; and it applied and incorrectly interpreted clause
3.2.5.3 (iii) which was applicable to speciality
units and not
applicable in this case.
[18]
The OSD for Nurses is a collective agreement that is aimed at
addressing some of the imbalances and anomalies which arose
from our
racially divided healthcare system and which was,
inter alia,
characterised by inequality. Nurses, among others, were
inconsistently graded and paid. Working conditions and facilities
were
unfairly skewed against the disadvantaged members of the
population. Importantly, unequal access to education and training
meant
that many nurses lacked formal qualifications, although some
acquired valuable skills and competence informally. The OSD for
Nurses
agreement, therefore,
inter alia
, sought to implement a
new, fair, coherent and consistent remuneration and career
progression system for all nursing professionals
in a unified public
health sector.
[19]
The OSD for Nurses agreement is a Collective Agreement as
defined in section 213 of the Labour Relations Act (the Act).
[1]
A collective agreement is afforded special status by section 23 of
the Act
[2]
and it varied the contracts of employment between the appellant and
its employees. In
CUSA
v Tao Ying Metal
Industries
and Others,
[3]
the Constitutional Court emphasized the importance and the rights
that Collective Agreements give effect to as follows:
‘
[55]
The issues raised in this case are matters of public interest.
This case also concerns the enforcement of a bargaining
council
agreement which sets out minimum wages and other conditions of
employment and requires us to apply the provisions of the
LRA. The
right of every trade union and every employers’ organisation
and employer to engage in collective bargaining is
entrenched in
section
23(5)
of
the Constitution. The concomitant of the right to engage in
collective bargaining is the right to insist on compliance with the
provisions of the collective agreement which is the product of the
collective bargaining process.
[56]
Compliance with a collective bargaining agreement is crucial not
only to the right to bargain collectively through the
forum
constituted by the bargaining council, but it is also crucial to the
sanctity of collective bargaining agreements. The right
to engage in
collective bargaining and to enforce the provisions of a collective
agreement is an especially important right for
the workers who are
generally powerless to bargain individually over wages and conditions
of employment. The enforcement of collective
agreements is vital to
industrial peace and it is indeed crucial to the achievement of fair
labour practices which is constitutionally
entrenched. The
enforcement of these agreements is indeed crucial to a society which,
like ours, is founded on the rule of law.’
20]
It is significant to note that in terms of clause 3(a) of the
Preamble to the OSD for Nurses agreement, one of the underlying
principles that form the basis of the agreement is that the basis of
translation to the OSD for a nurse shall be the duties that
a nurse
was performing as at 30 June 2007.
In casu
, it is common cause
that the employee was performing managerial duties and was overall
in-charge of the Obiqua Prison Hospital.
[21]
The contentions that the employee performed the duties of
manager at Obiqua Prison Hospital informally because of the
practice
that existed at the appellant and that since there was no funded post
for the manager’s position she
was not entitled to
translation, are, in my view, without merit and unfair. The purpose
of the OSD for Nurses agreement was, among
others, to do away with
this form of exploitation and to recognise actual service. The basis
of translation was precisely not the
“funded post” that
the nurse occupied but the duties that were satisfactorily performed
as at 30 June 2007. The aim
was to recognise actual skill and not the
actual position in existence. This conclusion is further fortified by
the appellant’s
Implementation Directive issued by the Director
General on 28 September 2007 (referred to above) on how the existing
posts of Chief
Professional Nurses, in designated posts of unit
Managers as at 30 June 2007, should be converted. For the Chief
Professional Nurse
post as at 30 June 2007 it would be Operational
Manager Nursing (Primary Health Care) as from 1 July 2007. The
non-existence of
a post could therefore not be a good enough reason
to exonerate the appellant from complying with the OSD for Nurses
Agreement.
[4]
[22]
As regards the requirement that a Professional Nurse should be
managing a nursing speciality unit, the Implementation
Directive
defines a nursing speciality unit as “
including a primary
health care clinic
”. This aspect disposes of the contention
that Obiqua Prison Hospital is not a speciality unit, because it
would, in any case,
fall under the primary health care clinic
category. The job titles for Professional Nurses in primary health
care are:
a.
Clinical Nurse Practitioner Grade 1
(Primary Health Care) salary level PN-B1
b.
Clinical Nurse Practitioner Grade 2
(Primary Health Care) salary level PN-B2
c.
Operational Manager Nursing (Primary
Health Care) salary level PN-B3 and
d.
Assistant Manager Nursing (Primary
Health Care) salary level PN –B4
Since
the employee was managing a nursing speciality unit primary health
care clinic, and although not in possession of a post-basic
clinical
nursing qualification listed in Government Notices R48 or R212, but
had been performing these duties of managing the unit
satisfactorily
on 30 June 2007, she was entitled to be translated as a once-off
provision to the salary level PN-B3, being the
appropriate salary
scale for nurses who were previously earning at salary level 8 and 9.
Therefore, her translation to the lower
salary scale of R183 000.00
per annum attached to the post of Clinical Nurse Practitioner was
erroneous.
[23]
In my view, placing the employee on scale PN-B3 did not amount
to a promotion, or expanding the establishment. It was
to place her
on the appropriate corresponding scale in line with the applicable
OSD for Nurses agreement as well as the Implementation
Directive by
the Director General of the appellant. Clause 3.2.5.3 (iii) was,
therefore, the appropriate and applicable provision
for a once-off
translation for a nurse in the position of the employee. The Labour
Court, therefore, did not misdirect itself or
err in its
interpretation and application of the collective agreement. Its
findings that the commissioner did not apply his mind
properly to the
relevant once-off translation provision in respect of the salary
scale applicable to the employee and that his
ultimate decision was
not one that a reasonable decision-maker could not make are, in my
view, correct.
[24]
In conclusion, the appeal has no merit and falls to be
dismissed. Both parties have submitted that costs should follow
the
result. I am of the view that it would be in accordance with the
requirements of the law and fairness that costs should follow
the
result because,
inter alia
,
of the “
Internal Memo
” dated 27 August
2008. This memo was prepared by Mrs E.M. Lottering, the Health
Manager: Allandale Management Area, and addressed
to various
officials concerned. In the memo she indicated that the employee had
been incorrectly translated and that the situation
had to be
rectified. Therefore, the respondent’s officials responsible
for the matter were aware of this erroneous situation
and yet they
failed to correct it, choosing instead to oppose the employee’s
referral until the dispute ultimately reached
this Court.
[25]
In the result, the following order is made:
The
appeal is dismissed with costs.
_________________
Tlaletsi
DJP
Ndlovu
JA and Coppin AJA concur in the judgment of Tlaletsi DJP.
Appearances:
For
the Appellant:
...............
Ms
Nayman
Instructed
by The State Attorney
For
the Respondent:
........ ..
Ms S. Harvey
Instructed
by Chennells Albertyn Attorneys
[1]
Act
66 of 1995. According to section 213, a collective agreement “means
a written agreement concerning terms and conditions
of employment or
any other matter of mutual interest concluded by one or more
registered trade unions, on the one hand and, on
the other hand–
(a)
one or more employers;
(b)
one or more registered employers’ organisations; or
(c)
one or more employers and one or more registered employers’
organisations;”.
[2]
Section
23 provides that “23. Legal effect of collective agreement
(1) A
collective
agreement
binds–
(a)
the parties to the
collective agreement
;
(b)
each party to the
collective agreement
and the members
of every other party to
the
collective agreement
,
in so far as the provisions are applicable between them;
(c)
the members of a registered
trade union
and the
employers who are members of a registered
employers’
organisation
that are party to the
collective agreement
if the
collective agreement
regulates–
(I)
terms and conditions of employment; or
(ii)
the conduct of the employers in relation to their
employee
s
or the conduct of the
employee
s in relation to their
employers;
(d)
employee
s who are not members of the registered
trade
union
or
trade union
s party to the agreement if–
(I)
the
employee
s
are identified in the agreement;
(ii)
the agreement expressly binds the
employee
s; and
(iii)
that
trade union
or those
trade union
s have as
their members the majority of
employee
s employed by the
employer in the
workplace
.”
[3]
[2009]
1 BLLR 1
(CC) at paras [55] and [56].
[4]
Minister
of Correctional Services v PHSDSBC and Others
Labour Court case C120/2010 dated 27 September 2011, unreported.
Minister
of Correctional Services v PHSDSBC and Others
Labour Court case C121/2010 dated 27 September 2011, unreported,
both per Steenkamp J.