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[2017] ZALAC 64
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Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JA4/2017, JR899/2013) [2017] ZALAC 64; [2018] 1 BLLR 7 (LAC); (2018) 39 ILJ 376 (LAC) (1 November 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no JA4/2017
LC
no: JR 899/2013
In
the matter between:
MINISTER
OF PUBLIC SERVICE AND ADMINISTATION
First Appellant
MEC,
PUBLIC WORKS, ROADS AND TRANSPORT,
MPUMALANGA
Second Appellant
and
PUBLIC
SERVANTS ASSOCIATION,
OBO
MALEME JOHANNES MAKWELA
First Respondent
DIALWA
MATHALA N.O.
Second Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Third Respondent
Heard:
07 September 2017
Delivered:
01 November 2017
Summary:
Employee translated in terms of the OSD as a result of a settlement
agreement which was made a binding award –Minister
seeking
rescission of the award on the basis that the Minister ought to have
been joined to as a party to the proceedings
– issue for
determination is whether the failure to join the Minister constitutes
a non-joinder – held the Minister
not an interested party to
the dispute – the Minister having no authority over the
provincial executive authorities -
the role of the Minister is
to advise and assist when asked to do so and not to make decisions -
the Minister acts merely as the
midwife to the OSD and is not
affected by a decision that derives from an award resolving a dispute
about the implementation of
a binding collective agreement - the
dispute is one between employer and employee – and Minister not
employer of the employee
- the absence of any legal connection
between the Minister and the employee seems to have been overlooked
in the argument composed
on her behalf. Appeal dismissed with costs.
Coram: Coppin,
Sutherland JJA
et
Savage AJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
On 1 June
2012, an award was issued making a settlement agreement between the
first respondent (Makwela) and his employer, the second
appellant
(the Member of the Executive committee (MEC)), a binding award. The
agreement put an end to a dispute about whether Makwela
should be
translated in terms of an Occupation Specific Dispensation (OSD) into
a particular post at a higher salary. The nub of
the dispute had
been, in part, whether Makwela had to be a registered Engineer or
not, and whether he was more of a manager than
an engineer in that
post, factors supposedly relevant, as far as the MEC was concerned,
to be eligible for translation. The details
of the controversy are
addressed elsewhere.
[2]
After the
award was published and the first appellant (the Minister) learned of
it, she became aggrieved at the particular translation
of Makwela.
Evidently, the MEC, who was a party (as represented in the
arbitration by the collective bargaining manager of the
Department,
Yuza Mushanganye) to the settlement agreement, and has now aligned
himself with the Minister to support the rescission
application, and
by so doing, contradicts the stance initially adopted by the
conclusion of the settlement agreement.
[1]
[3]
The two
appellants applied for the rescission of the consent award on the
basis that the Minister ought to have been a party to
the arbitration
proceedings. The relief sought was to set aside the award as
erroneously granted and order that the Minister be
joined. Although
not expressed in the notice of motion, it is implicit that it was
expected that the court would thereupon refer
the matter back to be
heard afresh by the bargaining council, affording the Minister an
opportunity to participate in the resumed
proceedings. No relief is
sought in respect of the settlement agreement itself, which of
course, continues to exist whether its
terms are incorporated into an
award or not. The implication of that circumstance is that even were
the award be set aside, the
agreement would remain binding between
the contracting parties, ie, the MEC and Makwela.
[4]
The second
respondent, an arbitrator of the GPSSBC dismissed the rescission
application. The appellant took that dismissal on review
which
application was also dismissed. The appeal lies against that
decision.
[5]
Accordingly,
the sole issue for decision is whether the failure to join the
Minister constitutes a non-joinder. Upon that foundation,
the
contention is advanced that the arbitrator issued an award in error
within the meaning of section 144 of the Labour Relations
Act 66 of
1995 (LRA) in that he ought to have directed the joinder, even
mero
motu,
is necessary. The relevant portion of the section provides:
‘
Any commissioner who has issued
an arbitration award or ruling, or any other commissioner appointed
by the director for that purpose,
may on that commissioner's own
accord or, on the application of any affected party, vary or rescind
an arbitration award or ruling-
(a)
erroneously sought or erroneously made in the absence of any party
affected by that
award;
(b)
….
(c)
granted as a result of a mistake common to the parties to the
proceedings; or
(d)
….’
The
Minister’s thesis in support of being a ‘necessary’
party
[6]
The premise
of the Minister’s thesis, necessarily, is that encapsulated in
the rescission application. That application gave
voice to the
following propositions:
6.1.
The
minister was “affected” by the award or was a “necessary”
party.
6.2.
The
Minister had “made” the OSD and had a vested interest in
the proper implementation of the OSD and is “responsible
for
the uniform and consistent application of all OSDs in the public
service”.
6.3.
The
Minister (or the department) had “decided jointly” with
the MEC that Makwela was ineligible to be translated.
6.4.
The
Minister only learnt of the award after it had been implemented by
way of Makwela being translated and his translation was contrary
to
the “mandate” of the two appellants.
6.5.
The award
was thus “erroneously sought and erroneously granted”.
The
relevant context and factual background
The
legislative apparatus
[7]
The terms
and conditions of employment of the employees who are subject to the
GPSSBC are highly regulated. These terms and conditions
are
encapsulated in resolutions of the bargaining council which record
collective agreements. Among other collective agreements
are several
which deal with “occupational specific dispensations”.
These collective agreements
via
the
taking of resolutions are thereafter “determined” by the
minister in terms of section 3(5)(a) of the Public Service
Act,
proclamation 103 of 1994, (PSA Act) whereupon they are in force. That
section reads:
‘
Subject
to
the
Labour Relations Act and
any
collective agreement,
the
Minister may make determinations regarding any conditions of service
of employees generally or
categories of employees,
including
determinations regarding a salary scale for all employees or salary
scales
for particular
categories of employees
and
allowances for particular categories of employees.’ [own
emphasis]
[8]
Once that
has taken place, the Minister may play a further role.
Section 3(6)
provides:
‘
(a)
If
so requested
by the
President or
an executive
authority
, the Minister may
advise, or assist
in
such manner or on such
conditions
as the Minister may determine, the President or
the
relevant executive
authority
as
to any matter relating to-
(i)
the public service;
(ii)
any staffing arrangements or employment practice regarding any organ
of state; or
(iii)
the remuneration or other conditions of appointment of the
office-bearers of any board,
institution or body.
(b) For the purposes of paragraph (a),
the Minister, or any person authorised in writing by the Minister,
has access to such official
documents and may obtain such information
from the chairperson or head of the relevant board, institution or
body
as may be necessary to advise or assist
the President or
the relevant executive authority.’ [ own emphasis]
[9]
Moreover,
section 5(6)
provides:
‘
(a)
Any
provision of a collective agreement
contemplated in subsection (4), concluded on or after the
commencement of the
Public Service Amendment Act, 2007
, shall, in
respect of conditions of service of employees appointed in terms of
this Act,
be deemed to be a
determination
made by the
Minister in terms of section 3 (5).
(b) The Minister may, for the proper
implementation of the collective agreement,
elucidate or
supplement such determination by means of a directive,
provided
that the directive is not in conflict with or does not derogate from
the terms of the agreement.’ [underlining supplied]
[10]
It is plain
that in this scheme of enactments, the role of the Minister, provided
for in section 5(6)(b) is ancillary to the
formalising
of a
collective agreement in terms of Section 3(5) (a) and the
advisory
role
provided for in section 3(6). Accordingly, the sections must be read
in that way, which results in the issuing of circulars
being
undertaken in that context. The function of such circulars is to
grapple with the nitty-gritty of implementation of collective
agreements, not to supplement them with substantive material. In
respect of the relevant OSD, the Minister issued a “circular”
no 5 of 2009.
[11]
There is,
therefore, no self- standing executive role for the Minister
established by section 5(6). Moreover, the circulars cannot
contradict the terms of the collective agreements formalised in
resolutions in respect of the OSD.
[12]
The
relevant “executive authority”, which is mentioned in
these provisions, refers to the MEC. The term is defined in
section
1,
inter
alia,
as follows:
‘“
executive authority”,
in relation to-
(d)
the Office of a Premier or a provincial government component within a
Premier's portfolio,
means the Premier of that province; and
(e)
a provincial department or a provincial government component
within an Executive Council portfolio, means the member of the
Executive
Council responsible for such portfolio
;”
[13]
Notably,
section 3(7) provides:
‘
An executive authority has all
those powers and duties necessary for-
(a)
the
internal organisation of the department concerned
,
including its organisational structure and establishment, the
transfer of functions within that department, human resources
planning,
the creation and abolition of posts
and provision
for the employment of persons additional to the fixed establishment;
and
(b)
the recruitment, appointment, performance management, transfer,
dismissal and other
career incidents of employees of that department,
including any other matter which relates to such employees in
their individual capacities
, and such powers and duties shall be
exercised or performed by the executive authority in accordance with
this Act.’ [own
emphasis]
[14]
Notably,
there is no logical space for a role by the Minister in this context,
to be ‘interested’ in the legal sense
in the application
of the provisions of the OSD to an individual employee.
The
Makwela’s request for translation
[15]
When
Makwela claimed an entitlement, the request was considered. The
appellants say both of them made “decisions”. The
MEC
denied the request on 20 May 2010. Ostensibly, the MEC had requested
the Minister to express a view before making this decision.
In
support of this assertion, an e-mail dated 18 March 2010 is cited.
This letter is a chummy note from Theresa and Robert to Zodwa.
Who
these people are is not disclosed. However, it is submitted on behalf
of the Minister that this e-mail, to which is attached
a schedule of
persons who are said to be ineligible to be translated, including
Makwela, constitutes the Minister’s “decision”
rejecting Makwela’s request. Apart from any other
consideration, not least of all policy or the principle of legality,
the
notion that a ministerial decision having the force of law can be
effected by an informal exchange by unidentified officials of
a
department is a remarkable reach, and is unsustainable.
[16]
What
exactly is the difference of opinion about Makwela’s
eligibility for translation? Makwela was not a registered Engineer,
albeit he has an academic engineering qualification. Makwela invoked
clause 13.2.3 of resolution 2 of 2009.
‘
For
employees on the Engineers work streams who are permanently appointed
and have been performing the duties of the post satisfactorily
as at
30 June 2009, but are not registered with the relevant Council upon
the implementation of the OSD will as a once-off provision
translate
to the OSD in terms of phases 1 and 2 translation measures
.’
[17]
The
appellants took a view that on an assessment of the job, Makwela
devoted 80% of his time to management and 20% to operational
engineering work. This, so they opined, should mean that he would be
disqualified from being eligible for the translation because
he was
not enough of an engineer in the post to which he had been appointed,
as deputy director in the Roads Directorate. However,
that 80/20%
idea is not stipulated in the resolutions, nor in the circular 5 of
2009 either. The further view is held that the
OSD cannot apply to
Makwela’s post and clause 2(b)of circular 5 of 2009 is invoked
which stipulated that the OSD for engineers
was confined to posts
where a professional registration was a “inherent requirement
of the post”. This viewpoint was
compromised by the settlement
agreement.
The
assessment of the rescission
application
[18]
The
requirements for joinder are that the party to be joined must have a
direct and substantial interest in the claim; ie be thus,
a
“necessary” party. This “interest” must be in
respect of a legal right or obligation affected by the
claim being
litigated; ie a legal interest. The best proof of that interest is
that order, if granted, cannot be effected without
the party seeking
joinder being subject to the order of court. The corollary is
that if the order sought can compromise the
rights of a person, that
person must be joined. Axiomatically, a person who claims to be
entitled to a benefit under a contract,
must proceed against another
party who is capable of lawfully performing the required act
necessary to meet the claim. A
person who is not a contracting
party need not be joined. Thus, eg, when suing a company, the
shareholders are not joined. Often
strangers to a contract are in a
practical every-day sense “affected”; by an order, eg
creditors, employees etc. However,
none of these persons are
necessary parties for want of the necessary connection in law.
[19]
The
Minister’s argument for joinder boils down to this: because the
Minister “made” the OSD and is the “custodian”
of its consistent implementation, and moreover in respect of Makwela,
because the Minister made an
ad
hoc
“decision” refusing the request,the Minister was,
therefore, a necessary party to any proceedings which give effect
to
the provisions of the OSD.
[20]
The Labour
Court expressed itself thus:
‘
[15] Read in context, it
appears that the OSD is deemed to be a determination made by the
Minister. But once she is deemed to have
made a termination, its
implementation is left to the MEC.
[16] The unfair labour practice
dispute that the PSA referred to the GPSSBC questioned the
implementation of the OSD in the case
of Mr Makwela. It did not
attack the OSD itself, or the fact that it is deemed to be a
determination made by the Minister. In those
circumstances, I do not
believe that the Minister was a necessary party to the dispute. The
arbitrator, Dr Martin, did not exceed
his powers or commit any other
reviewable irregularity when he made the settlement agreement an
arbitration award at the request
of the parties, being the PSA and
the MEC.
[17] It cannot be envisioned
that the Minister should be joined to every dispute concerning a
“deemed determination”
in the form of a collective
agreement of a public service bargaining council such as an OSD. For
example, in the case that Mr
Mashego
cited,
Western
Cape Department of Health v MEC Van Wyk and others (2014) 35 ILJ 3078
(LAC)
[2]
the
LAC took no issue with only the provincial department (rather than
the Minister) having been cited as a respondent in a similar
dispute
involving the implementation of an OSD – in that case, for
nurses.
[18] Once it is concluded that
the Minister was not a necessary party to the Martin award, the
rescission ruling by commissioner
Mathala is also not reviewable.
[19] Quite simply, the
arbitration award – in terms of which the settlement agreement
was made an award with the consent of
both parties – was not
“erroneously sought or erroneously made in the absence of any
party affected by that award”
as contemplated by s 144(a) of
the LRA.
[20] The Department was properly
cited. It was represented by its Manager: Collective Bargaining, Mr
Yuza David Maswanganye. He
is tasked with managing dispute resolution
processes and entering into collective agreements. His authority to
enter into the agreement
with the PSA and to consent to it being made
an arbitration award was not questioned; nor could it be.”
[21]
We agree.
There are several reasons why the Minister cannot assert that she was
a party “affected” by the award.
21.1.
First, what
is required is not merely that the Minister is “interested”
in knowing what various “executive authorities”
do when
implementing collective agreements. That sort of common-sense
“interest” is irrelevant. This is because the
Minister
has no authority over the executive authorities. The notion that a
co-decision was made about Makwela is wrong on the
facts. The role of
the Minister is to advise and assist when asked to do so (not to make
decisions), and otherwise is obliged to
leave the MEC to get on with
the implementation. Were it otherwise, the MEC would be the
Minister’s functionary which is
an idea incompatible with the
constitutional structure of the provinces having original
jurisdiction and not being subordinate
to the national government,
within their scope of authority.
[3]
Thus, the Minister made no decision in respect of Makwela; what took
place was the dispensing of advice.
21.2.
The dispute
did not trigger an interpretation issue about the meaning of the OSD.
However, even had it done so, the Minister as
the authority that acts
merely as the midwife to the OSD, an instrument which derives from a
binding collective agreement, would
still not be “affected”
by a decision on the meaning in the relevant sense.
21.3.
The nub of
the dispute with Makwela was a mere difference of opinion about the
facts relevant to the application of the OSD. The
Minister’s
role as the provisions of the legislation cited above illustrate, is
confined to the issuing of instruments of
general application, and
not, in the least, is the Minister, in any legal sense, concerned
with disputes concerning individual
employees. Even if it be supposed
that the decisions taken about Makwela in respect of implementing the
OSD were to be wrong or
inappropriate, that notional error could not
confer on the Minister a legal interest that might found a proper
claim to be joined.
21.4.
The main
hurdle which the Minister’s case needs to clear is plain. The
dispute is one between employer and employee - what
can there be
about that sort of dispute which “affects” the Minister,
who is not Makwela’s employer? The absence
of any legal
connection between the Minister and the employee seems to have been
overlooked in the argument composed on her behalf.
Conclusions
[22]
The
Minister is plainly not a person who has a legal right at stake in
thedisputereferred to arbitration by Makwela. The appeal
must fail.
The
Costs
[23]
Both
parties seek costs. Accordingly, costs ought to follow the result.
[24]
Costs on a
punitive scale are sought against the two appellants. In my view, no
case to justify that has been made out. The stance
of the appellants
has been held to be wrong; no untoward conduct has been evidenced in
their pursuit of a wrong view.
The
order
The
appeal is dismissed with costs.
______________
Sutherland
JA
Sutherland
JA (with whom Coppin JA and Savage AJA concur)
FOR THE
APPELLANTS:
Adv DT Skosana SC, With him, ADV N Mtembu,
Instructed by The State
Attorney, Pretoria.
FOR
THE FIRST RESPONDENT:
Attorney D Mashego.
[1]
There is an allusion in
the founding affidavit to a controversy about whether the Collective
Bargaining Manager who, whilst representing
the MEC, exceeded his
mandate by binding the MEC to the terms of the agreement, but
neither the review court nor the appeal court
are seized with an
issue based on a lack of authority nor is any relief sought on such
a premise. This aspect is mentioned by
way of explanation of the
MEC’s
volte
face.)
[2]
An
argument was advanced that this decision is not authority for the
proposition that the Minister must not be joined, and thus
the
Labour Court was in error. It is correct that the decision is not
authority for that proposition. However, it was not cited
in the
judgment for that purpose; rather, it was alluded to merely as an
example of the uncontroversial practice of not joining
the Minister
in such circumstances.
[3]
See: The Constitution,
sections 103, 104, 125 and 146.