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[2017] ZALAC 51
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Rukwaya and Others v Kitchen Bar Restaurant (JA80/16) [2017] ZALAC 51; (2018) 39 ILJ 180 (LAC); [2018] 2 BLLR 161 (LAC) (5 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 80/16
In
the matter between:
PARDON
RUKWAYA
AND
31 OTHERS
Appellants
and
THE
KITCHEN BAR RESTAURANT
Respondent
Heard:
03 May 2017
Delivered:
05 September 2017
Summary:
Jurisdiction of the Labour
Court – employees seeking payment of minimum wages from
employer in terms of a collective agreement
– principle
that
jurisdiction is determined with reference to the allegations which
are set out in the pleadings
restated
– employees’ claim based on
the
collective agreement.
Held
that t
he
legal basis of the appellants’ claim is founded on the
respondent’s non-compliance with the collective agreement
and
not upon a breach of their contracts of employment
- t
he
substance of
employee’s
complaint
is the
employer’s
failure
to pay them the industry minimum wages and bonuses in terms of the
collective agreement.
Employees
obliged
to follow the dispute resolution process provided for in the
collective agreement.
Labour
Court’s judgment upheld – appeal dismissed.
Coram:
Tlaletsi DJP, Davis JA and
Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1]
This is an appeal against the judgment of the Labour Court (Bakker
AJ) in which it found that it has no jurisdiction to adjudicate
the
appellants’ claim against the respondent for the payment of,
amongst other things, a minimum wage. The appellants are
waiters
employed by the Kitchen Bar Restaurant (“the respondent”).
[2]
Both parties fall under the scope of the Bargaining Council for the
restaurant, catering and allied trade industry (“the
Bargaining
Council”). Although not parties to the Bargaining Council, they
are bound by the Bargaining Council collective
agreement (“the
collective agreement), which was concluded in May 1998 to regulate
the conditions of employment and the wages
of all employees in the
restaurant, catering and allied trade industry. The Minister of
Labour, by virtue of her powers under s32(2)
of the Labour Relations
Act, 66 of 1995 (“the LRA”), extended the terms and
conditions of the collective agreement
to non-parties.
[1]
It
is common cause between the parties that they are bound by the
collective agreement.
The
Labour Court decision
[3]
The appellants made application to the Labour Court in terms of
s77(3) of the Basic Conditions of Employment Act, 75 of 1997
(“the
BCEA”) for the payment of the outstanding wages and weekly
bonuses, as well as a refund of certain unlawful deductions,
which
were purportedly owing to them in terms of the collective agreement.
The appellants contended that the respondent had contravened
certain
clauses of the collective agreement by, amongst other things, failing
to, provide them with written contracts of employment
and pay them a
minimum wage. According to the appellants, their only earnings are
from the service tips or gratuities which they
receive from patrons
of the restaurant, but that the respondent has made certain unlawful
deductions from these earnings for “breakages,
table-runners,
linen and soap”.
[4]
The respondent opposed the application in the Labour Court, on the
basis that the Labour Court had no jurisdiction to entertain
the
application, as the dispute was founded on the interpretation and
application of the collective agreement. It contended that
the
dispute could only be resolved through conciliation and, if it
remained unresolved, through arbitration in terms of clause
28(a) of
the collective agreement. It accordingly contended that the
appellants were compelled to follow the dispute resolution
procedure
provided for in clause 28(a) of the collective agreement. Clause
28(a) of the collective agreement reads as follows:
‘
(1)
Disputes pertaining to contraventions of the Agreement must be done
in the form of a sworn
statement setting out all of the material
facts that form the basis of the complaint.
(2)
On
receipt of the complaint, the Council shall within fourteen days
appoint a designated agent or official to investigate the complaint
and/or may request further information, facts or data from either the
employee of the employer.
(3)
The
designated agent or official shall within 30 days of his appointment
submit a written report to the Secretary on his investigation
and the
steps he has taken to ensure compliance with the Agreement and the
recommendations for the finalisation of the complaint.
(4)
Should
the complaint not be settled, the complainant may request the Council
to set the matter down for arbitration within 30 days
of being served
with the outcome of the investigation.
…
(10)
An
arbitrator conducting an arbitration in terms of this clause has all
the powers of a commissioner as set out in the Act.
(11)
An
arbitrator may, make an appropriate award including:
(a)
ordering
any person to pay any amount owing in terms of this agreement
provided that any claim pertaining to clause 5, 6, 7, 9,
13, 14, 16
and 17, shall not exceed the period of twelve months, from date the
complaint has now been lodged at the Council;
(b)
charging
a party an arbitration fee;
(c)
ordering
a party to pay the costs of the arbitration;
(d)
any
award contemplated in s 138(9) of the Act.
(12) An
award in terms of this clause is final and binding and may be
enforced in terms of s143 of
the Act after the Secretary and/or a
person appointed by the Council has certified the arbitration award,
unless it is an advisory
award.’
[5]
In deciding the jurisdictional question, the Labour Court reasoned as
follows:
‘
The
true nature of the present dispute is the Respondent’s
non-compliance with the provisions of the Council’s Collective
Agreement and must be enforced via the procedures in clause 28A of
the Council’s Collective Agreement, and if necessary,
arbitrated in terms of the provisions of s33A of the LRA. The dispute
is clearly not about getting paid what was contractually
agreed
between the Applicants and the Respondent or even what was agreed on
behalf of workers at plant level and then incorporated
into their
individual contracts by virtue of the provisions of s23(3) of the
LRA. This dispute is about minimum wages and other
conditions of
employment negotiated and agreed at the Council. To suggest that the
present dispute is of the type envisaged by
s77(3) of the BCEA is
superficial and goes against substantial considerations to the
contrary.
…
[22] The
Applicants brought their claim to this Court in the form of an
application in terms of s77(3)
of the BCEA premised on a breach of
employment contracts, but in substance the complaint is the
Respondent’s failure to pay
them the industry minimum wages and
bonuses in terms of the Council’s Collective Agreement.
Applying the ‘substance
over form’ principle, I have no
hesitation in finding that the real issue in dispute is the
Respondent’s non-compliance
with the provisions of the
Council’s Collective Agreement, and not, as the Applicants want
to characterise the dispute, a
breach of the terms of their
individual contracts of employment. The main issue is about the
Council’s Collective Agreement
and not individual contracts.’
[6]
The Labour Court accordingly found that it did not have jurisdiction
to adjudicate the appellants’ claim. The appeal against
the
Labour Court’s decision is with its leave.
Jurisdiction
[7]
The appellants contend, on appeal, that their claim for wages was
made in terms of their employment contracts, hence they were
entitled
to approach the Labour Court for relief under s77(3) of the BCEA,
which provides that the Labour Court has concurrent
jurisdiction with
the civil courts to hear and determine any matter concerning a
contract of employment irrespective of whether
any basic condition of
employment constitutes a term of that contract.
[8]
It is an established principle of law that the question of
jurisdiction is determined with reference to the allegations which
are set out in the pleadings and not the substantive merits of the
case. Thus, in the case of an application of this nature, the
court
must closely examine the contents of the founding affidavit in order
to “
establish
what the legal basis of the applicants’ claim is
”.
It, however, does not behove the court to say that “
the
facts asserted by the applicants would also sustain another
claim
”.
[2]
It
is, therefore, vital for the court to “
ascertain
the true or real issue in dispute”
.
This would necessitate examining the substance of the dispute over
the form in which it is presented. The “
characterisation
of the dispute by a party”
is, consequently, “
not
necessarily conclusive… .“
[3]
[9]
The appellants’ cause of complaint as appears from paragraphs
7, 8 and 9 of the founding affidavit is the respondent’s
non-compliance with the collective agreement. In paragraph 7 the
appellants allege:
‘
This
claim is brought in terms of the provisions of
s77
of the
Basic
Conditions of Employment Act, 75 of 1997
, as a result of the
Respondent’s failure to pay the individual Applicants the
required and stipulated minimum wage and/or
bonuses in the
restaurant, catering and allied trade industry, and the unlawful and
unauthorised deductions made from the remuneration
of the individual
applicants by the Respondent.’
[10]
These claims have their basis in the collective agreement. This is
clear from the founding affidavit itself, where the appellants
allege
that in May 1998 the collective agreement was concluded in the
industry regulating all wages and conditions of employment
of the
employees in the industry and, by virtue of her powers in terms of
s32(2)
of the LRA, the Minister extended the collective agreement to
non-parties to the agreement thus making it binding on all employers
and employees in the industry.
[11]
The appellants then pertinently allege that the respondent is clearly
bound by the collective agreement which specifically
regulates and
determines the terms and conditions of employment of the individual
appellants in this instance. They go on to allege
the material terms
of the collective agreement that are applicable to their various
claims for payment, and describe the purported
contraventions which
include the failure of the respondent to, enter into a written
agreement with each of them; pay each of them
a minimum wage; and pay
those of them who qualified a weekly bonus. In addition, they aver
that the respondent contravened the
collective agreement by making
deductions from the remuneration which they earned from the
gratuities received from the patrons
of the restaurant. They aver
that the respondent’s conduct “…
is clearly in
breach of, and in direct contravention of the Collective Agreement
”.
[12]
Thereafter, in paragraph 11 of the founding affidavit, the appellants
reiterate that:
‘
The
Respondent has failed to pay the individual applicants their
remuneration in the form of the prescribed minimum wage, failed
to
pay bonuses due, and made unlawful and unauthorised deductions from
the individual applicants’ salary, which is clearly
not only in
breach of the clear and specific terms of the employment between the
individual Applicants and the Respondents but
also in breach of the
Basic Conditions of Employment Act and
the Collective Agreement in
the industry.’
The legal basis of the appellants’
claim is founded on the respondent’s non-compliance with the
collective agreement
and not upon a breach of their contracts of
employment. The substance of their complaint is the Respondent’s
failure to pay
them the industry minimum wages and bonuses in terms
of the collective agreement. This, as correctly found by the Labour
Court,
is the real issue in dispute between the parties. In the light
of this, the appellants were obliged to follow the dispute resolution
process provided for in clause 28(a) of the collective agreement.
[13]
In terms of
s24(1)
[4]
of
the LRA, all collective agreements are required to provide for a
procedure to resolve any dispute about the interpretation and
application of the collective agreement through conciliation, and if
the dispute remains unresolved, through arbitration. Clause
28(a) of
the collective agreement, in the current dispute, provides for such a
procedure. It is couched in peremptory terms and
is binding on both
the appellants and the respondent. It provides a speedy and
cost-effective mechanism to employees of the restaurant,
catering and
allied trades industry seeking to enforce their rights in terms of
the collective agreement.
[14]
Section 1(d)(iv)
of the LRA provides that the purpose of the Act is
to advance economic development, social justice, labour, peace and
the democratisation
of the workplace by fulfilling the primary
objective of the Act, which is “…
to promote …
the speedy resolution of labour disputes
”. Clause 28(a) of
the collective agreement does just that. It allows for an
investigation into the complaint, referral of
the dispute to
conciliation and, if it remains unresolved, referral to arbitration.
[15]
Clause 28(a) of the collective agreement simply affords an employee
seeking to be paid in accordance with the collective agreement
a
mechanism to speedily enforce his or her rights under the collective
agreement. The contention that clause 28(a) of the collective
agreement was intended as an alternative to the remedies provided for
under the BCEA is, in my view, subversive of the spirit and
purport
of clause 28(a) of the collective agreement -
a
peremptory provision -
the
objective of which is to ensure a speedy and cost-effective
resolution of a dispute that arises from a contravention of the
collective agreement.
[16]
As became apparent during argument, what the appellants sought to do
in the application before the Labour Court was to incorporate
the
terms of the collective agreement into their contracts of employment
for purposes of approaching that court in terms of s77(3)
of the
BCEA. This practice was criticised and expressly rejected by this
Court in
Ekurhuleni
Metropolitan Municipality v The SA Municipality Workers’ Union
on behalf of workers,
[5]
on
the following basis:
‘
This
argument, in my view, which is made to overcome the difficulty which
the jurisdictional point presents to the Respondent, ignores
the
primacy of collective agreements under the LRA. One could
equally argue that the court
a
quo
was interpreting the main agreement and that the dispute was about
the main agreement which was the source of the relevant clauses.
For this argument, Respondent’s counsel purportedly relied on
s23(3) of the LRA, which provides:
‘
Where
applicable a collective agreement varies any contract of employment
between an employee and an employer who are both bound
by the
collective agreement.’
That provision is likely to apply to
all collective agreements where reciprocal rights and obligations of
employers and employees
are dealt with. But it is not correct
that if clauses in the collective agreement, by which the employment
contract is varied,
are interpreted, that it is in fact an
interpretation of the employment contract and not of the collective
agreement. The interpretation
is certainly of the relevant clauses in
the collective agreement and by implication, also the relevant
clauses in the employment
contract.
Collective agreements are to be
accorded primacy. In
National Bargaining Council for the Road
Freight Industry and another v Carlbank Mining Contracts (Pty) Ltd
and another
, this Court held that the purpose of s199 of the LRA,
read together with s23(3) of the LRA, is to advance the primary
object of
the LRA, namely the promotion of collective bargaining at
sectoral level and giving primacy to the collective agreements above
individual contracts of employment. Section 199 provides,
inter
alia
, in essence that contracts of employment may not disregard
or waive collective agreements. The fact that it was agreed that the
rights, duties and obligations pertaining to full-time shop stewards
were to be reduced to a collective agreement at Bargaining
Council or
sectoral level is indicative of the intention to create and maintain
uniformity in the sector in respect of those matters.
The meaning to
be given to each clause in the collective agreement was therefore
also clearly intended to be uniform throughout
the sector and at both
Bargaining Council and plant levels. To distinguish between the
collective agreement and the individual
contracts of employment in
respect of those aspects when interpreting the relevant clauses,
could be subversive, firstly, because
of the very intention of
maintaining uniformity, because there is a possibility that different
meanings could be given to the very
same clauses by the different
parties to the agreement if they were allowed definitively to
interpret the clauses at plant level.
Such an approach would also
weaken the collective agreement to the point of rendering it
ineffective. Further, such an approach
would be inconsistent with one
of the other main objectives of the LRA, namely to ensure orderly and
effective collective bargaining.
The said objective of the LRA and
the collective agreement can only be maintained if the collective
agreement,
ie
the main agreement, itself is interpreted.’
[Footnote omitted]
[17]
The appellants in this appeal rely on the respondent’s
purported contraventions of the collective agreement to support
their
claim for payment of a minimum wage and certain other things. The
determination of whether the respondent has contravened
the
collective agreement as alleged, calls for its interpretation and
application. However, in terms of clause 28(a) of the collective
agreement, disputes pertaining to its interpretation and application
must be dealt with by the Bargaining Council in accordance
with the
procedure set out therein.
[18]
A bargaining council is empowered in terms of s33A
[6]
of
the LRA to enforce a collective agreement, which it has concluded.
The dispute resolution procedure provided for in clause 28(a)
of the
collective agreement seeks to do precisely that. It is binding on
both the appellants and the respondent, and it provides
each of them
with a remedy which they are obliged to pursue in the event of
non-compliance by the other party.
[19]
It follows from this that the remedy available to the appellants in
the dispute concerning their claimed payments lies neither
in s77 of
the BCEA nor their contracts of employment, but in the special
dispute resolution mechanisms provided for in clause 28(a)
of the
collective agreement. In terms of this clause, the Labour Court has
no jurisdiction to deal with a dispute arising from
a contravention
of a collective agreement. Accordingly, the appeal must fail.
[20]
In the result, I order that:
“
The
appeal is dismissed with no order as to costs.”
________________________
F Kathree-Setiloane
AJA
Davis
& Tlaletsi JJA concurring
APPEARANCES:
FOR
THE APPELLANTS:
AJ POSTHUMA
Instructed by Snyman Attorneys
FOR
THE RESPONDENT:
MA LENNOX
Instructed by Waldeck Attorneys
[1]
GNR707
of 22 May 1998.
[2]
Gcaba
v Minister for Safety and Security and Others
(2010) 31 ILJ 296 (CC) at para 75.
[3]
Coin
Security Group (Pty) Ltd v Adams and 37 Others
(2002)
21 ILJ 924 (LAC) at para 15.
[4]
Section
24(1) of the LRA provides:
‘
Every
collective agreement excluding an agency shop agreement concluded in
terms of s 25 or a closed shop agreement concluded
in terms of
section 26 or a settlement agreement contemplated in either section
142A or 158(1) must provide for a procedure to
resolve any dispute
about the interpretation or application of the collective agreement.
The procedure must first require the
parties to attempt to resolve
the dispute through conciliation and, if the dispute remains
unresolved, to resolve it through
arbitration.’
[5]
Ekurhuleni
Metropolitan Municipality v The SA Municipality Workers’
Union on behalf of workers,
(2015) 36 ILJ 624 (LAC) at paras 25 and 26.
[6]
Section
33A(1) provides:
‘
Despite any
other provision in this Act, a bargaining council may monitor and
enforce compliance with its collective agreement
in terms of this
section or a collective agreement concluded by the parties to the
council.’