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[2019] ZALAC 49
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Appels v Education Labour Relations Council (ELRC) and Others (JA19/18) [2019] ZALAC 49; [2019] 10 BLLR 985 (LAC); (2019) 40 ILJ 2284 (LAC) (10 July 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JA19/18
Leon
Logan
Appels
Appellant
and
Education Labour
Relations
Council
(ELRC)
First Respondent
North West Department
of Education
And Sport
Development
Second Respondent
South African
Democratic
Teachers Union
Third
Respondent
National Professional
Teachers’
Association of South
Africa (NAPTOSA)
Fourth
Respondent
Suid-Afrikaanse
Onderwysunie (SAOU)
Fifth
Respondent
National Teachers’
Union (NATU)
Sixth
Respondent
Professional
Educators’
Union
Seventh Respondent
Public Servants’
Association
Eighth
Respondent
Health and Other
Service Personnel Trade
Union of SA
(HOSPERSA)
Ninth Respondent
Dr AD
Abdool
Tenth
Respondent
The Registrar of
Labour
Relations
Eleventh Respondent
Heard:
16 May 2019
Delivered:
10 July 2019
Summary:
Whether a bargaining council through a collective agreement can vary
time period for referral stipulated for by the LRA-
principle that
subordinated legislation subject to empowering legislation restated-
distinction must be drawn between substantive
and procedural rights-
subordinated legislation cannot alter substantive rights- court held
that clause 9.1.3 of the constitution
the ELRC that reduces the time
period for referral from 90 days to 30 is clearly not in conflict
with the LRA. By reducing the
time period to 30 days for the sake of
celerity ELRC does not take away the right of the referring party to
be heard. Labour Court’s
judgment upheld – appeal
dismissed.
Coram:
Waglay JP, Jappie and Coppin JJA
JUDGMENT
[1]
This is an appeal to determine whether a
bargaining council, empowered in terms of the Labour Relations Act 66
of 1995 (LRA) to
establish through a collective agreement its own
dispute resolution procedure, may vary the time limit as stipulated
for by the
LRA for referral of a dispute to it. This issue arose from
the unfair labour practice dispute referred by the appellant to the
Education Labour Relations Council (ELRC).
[2]
The appellant, employed at the Alabama
Secondary School in Klerksdorp, applied for the vacant position of
principal at the school
during 2016. He was unsuccessful. He
immediately raised a grievance about his non-appointment which was
not resolved. He thereafter
referred an unfair labour practice
dispute to the ELRC, being the bargaining council which has
jurisdiction to entertain the dispute.
The dispute was referred after
the expiry of 30 days, but before the expiry of 90 days since the
appellant became aware of the
employer’s decision not to
appoint him to the principal’s post.
[3]
The ELRC took the view that the appellant’s
referral was defective as it was referred outside the 30 day-period
as prescribed
in its constitution. The ELRC’s constitution
provides that all disputes related to promotion should be referred to
it within
30 days from the date on which the employee became aware of
the decision not to promote him/her. The ELRC requested the appellant
to file an application to condone the late referral as a referral
outside the time limit did not constitute a total bar of the
referral. The appellant refused to do so and applied to the Labour
Court for an order declaring that the 30 day time period prescribed
by the ELRC was of no force because it was in conflict with the 90
day time period prescribed by the LRA. The appellant’s
stance
is that ELRC’s constitution cannot vary the timeframe set out
in the LRA.
[4]
The Labour Court (Van Niekerk) took the
view that the constitution of ELRC is a collective agreement to which
the appellant is a
party and as such in terms of section 23(1) of the
LRA, the collective agreement binds the appellant and all who fall
within the
sector over which the ELRC has jurisdiction. The Labour
Court held that the appellant could not contend that clause 9.1.3 of
the
collective agreement, which prescribed the 30 day time limit, was
of no force and effect as the 30 day-period within which to refer
a
promotion dispute was an agreed period to which the appellant was
bound.
[5]
The Labour Court held further that even
though bargaining councils were creatures of statutes and must act
within the confines of
the empowering legislation, there was nothing
in the LRA that enjoins the bargaining council not to deviate from
the statutory
timeframe of the LRA. The court then held that there
was, nothing to suggest that bargaining councils may not establish
procedures
that deviate from those established by the LRA. The Labour
Court thus found that
collective
agreements concluded in bargaining councils that regulate dispute
resolution should be given primacy because section
51 of the LRA
empowers bargaining councils to establish procedures to resolve
disputes and in doing so, to design their own procedures
that address
the exigencies of the sector for which they are registered and to
ensure efficient and cost-effective dispute resolution,
and that
these procedures may deviate from those established by the LRA.
[6]
Before this Court are two sections of the
LRA. The first is section 191(1)(b)(ii) of the LRA which provides
that:
‘
(1)
(a)
(b)
A referral in
terms of paragraph
(a)
must be made within
–
(i)…
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,
within 90 days of the date on which the
employee
became
aware of the act or occurrence.
The
second is section
51 (9) (a) of the LRA
which reads:
‘
(9)
A
bargaining
council
may, by collective agreement
-
(a)
establish procedures to resolve any dispute
contemplated in this section.’
Pursuant to section 51(9)
of the LRA, ELRC adopted its constitution which provides at clause
9.1.3 that:
‘
9.1
A party may refer a dispute to the General Secretary…
9.1.3
In the case of promotions, within 30 days from the
date on which the employee became aware of the employer’s final
decision
not to promote the employee’
.
[Emphasis
added]
[7]
The
appellant contends that the provisions of section 191 of the LRA are
peremptory and that section 51(9) must be interpreted to
the extent
that the right conferred upon a party by the LRA cannot be taken
away. In short, the appellant challenges the lawfulness
of clause
9.1.3 of the ELRC’s on the grounds that it conflicts with the
provisions of s191(1)(b)(ii) of the LRA. In support
of this
contention, the appellant relied on
Premier
Gauteng and Another v Ramabulana NO and Others
[1]
in which case, this Court found that the LRA must prevail when the
provisions in the rules applied by the Commissioner for Conciliation
Mediation and Arbitration (CCMA) were in conflict with the provisions
of the LRA. The appellant further argued that the
distinction
that the ELRC seeks to make between substantive and procedural rights
is unwarranted as all rights regardless of their
nature provided by
the LRA are on the same footing: there is no distinction of rights
between substantive and procedural rights
to the extent that the
former cannot be altered and the latter can be altered by a
collective agreement.
[8]
The ELRC, on the other hand, argues that a
bargaining Council may by virtue of s51(9)(a) establish its own
procedures to resolve
disputes, which includes determining its own
time period for the referral of an unfair promotion dispute. It
argues that a distinction
should be drawn between a right and a
procedure to enforce that right. Time period prescribed by the LRA is
a procedural issue
and not a substantive right. Adding that when it
determined its procedure to enforce the unfair labour practice
disputes, it considered
various factors, these included: the need for
an expedited dispute resolution process in respect of promotions as
318 394 educators
fall within the registered scope of ELRC and the
number of promotional disputes referred to it were in 2014/2015 -
109; in 2015/16
- 248; and in 2016/17 – 225.
It was
therefore compelled to
provide for the expeditious
resolution of such disputes because it is in the best interests of
learners that their education should
not in any way be compromised
and that the Department of Education meets its constitutional duty to
provide learners with basic
education as a delay in resolving such
disputes would compromise the education provided to learners; that it
is in the interest
of all stakeholders that such disputes are
resolved as quickly as possible; that it is in the nature of a
promotion dispute that
there exists at the time of the decision a
vacancy which must be filled, failure to fill the position pending
the resolution of
a dispute has the consequences that teaching would
be compromised because in every instance where a dispute is raised
the position
would most likely remain vacant pending the completion
of dispute resolution processes; that where there is an opportunity
for
promotion, the successful educator is placed in the position,
often such a promotion involves not only an increased salary but also
relocation. Such disputes must also be resolved expeditiously as the
consequences of a reversal of an unfair promotion where a
dispute is
lodged, must have as a consequence, the reversal of salary and
possibly even relocation and learners will then have
to start with a
new incumbent and the other incumbent may well then be required to
revert to his or her previous position and like
the wheels of the bus
the cycle will go on. All of these consequences in respect of
disputes related to promotion compelled the
need for a truncated
dispute resolution process.
[9]
The
Court in
Ramabulana
,
held that
the
CCMA is a creature of statute which derives its powers from the LRA
and from its rules governing the dispute resolution process
that it
is empowered to undertake. The court held that CCMA’s rules
should not be in conflict or inconsistent with provisions
of the LRA,
and where those rules are in conflict, the LRA will prevail and such
rules would be
ultra
vires
.
[2]
[10]
The
Ramabulana
matter is distinguishable from the present matter. That is a matter
which deals with the CCMA and not with a bargaining council.
The CCMA
is not empowered in terms of s51(9) to establish a dispute resolution
procedure by way of a collective agreement as it
is not a bargaining
council, nor is it limited to serve a particular sector.
[11]
There is no dispute that the ELRC’s
constitution is a collective agreement concluded in terms of section
51(9) of the LRA.
There is also no dispute that ELRC is a creation of
statute which is empowered by the LRA to design its rules and dispute
resolution
process, but unlike the CCMA it can only operate within
the sector for which it is registered.
[12]
In designing its constitution, ELRC adopted
a subordinate legislation. This is so because the collective
agreement of ELRC is concluded
pursuant to the provisions of the LRA.
The LRA is, therefore, the empowering legislation. It is trite that
subordinate legislation
or delegated legislation may not be in
conflict with the empowering legislation.
[13]
Since subordinate legislation is always
subject to empowering legislation, it cannot take away any rights
entrenched in the empowering
legislation. A distinction must,
however, be drawn between a right and the process to enforce that
right. The substantive right
that is of relevance in this matter that
is guaranteed by the LRA and which cannot be compromised by the
subordinated legislation
is the right not to be a victim of an unfair
labour practice. This is guaranteed by the Constitution of the ELRC.
The issue of
time limits relates to the process. While it is correct
that the LRA provides that disputes about unfair labour practice must
be
referred to a bargaining council which has jurisdiction to
entertain the dispute “within 90 days…”, this, in
my view, would apply where the bargaining council has not itself
provided a procedure which has to be followed to refer the unfair
labour practice to be determined by it.
[14]
The LRA specifically provides in s51(9)(a)
that the bargaining council may by collective agreement establish the
procedure to resolve
any dispute. What this section contemplates is
that there has to be a collective agreement which sets out the
procedure to be followed
in resolving a dispute, but more than that,
implicit in this section is the recognition that procedures may
differ between councils
and between the CCMA and councils and that
councils must put into place procedures that will best suit the
sector it serves while
giving effect to the principal objects of the
LRA which is to resolve disputes effectively, efficiently and swiftly
and do this
without compromising the rights enshrined in the LRA.
[15]
In this matter, there is no dispute that
the procedure to resolve disputes which includes clause 9.1.3 of the
ELRC’s Constitution
was a product of a collective agreement and
that the appellant as a member of a trade union was party to the
agreement and consented
to that clause. The factors which were
considered demonstrate the need for a truncated time limit clause.
This clause might limit
the time period for referral of an unfair
labour practice about promotion but does not take away the
appellant’s right to
refer his unfair labour practice dispute
to the council, and where the referral is made outside the period
prescribed by the ELRC,
condonation may be granted on good cause
shown for the delay.
[16]
In my view clause 9.1.3 of the ELRC’s
constitution that reduces the time period for referral from what is
prescribed in the
LRA is not in
ultra
vires
. By reducing the time period for
the sake of celerity, the ELRC does not take away the right of the
referring party to be heard.
The limitation serves to deal with the
reality that the education sector deals as it does with educating the
youth and must not
drag its feet in resolving disputes as
expeditiously as it can, lest it prejudices the very sector it seeks
to serve.
[17]
In the circumstances, the appeal must fail
however I am of the view that this is also a matter where in the
interest of law and
equity there be no order as to costs.
[18]
In the result, I make the following order:
The
appeal is dismissed.
______________
Waglay
JP
I agree
________________
Jappie JA
I
agree
_______________
Coppin
JA
APPEARANCES:
FOR THE APPELLANT:
W
P Schöltz of Schöltz attorneys
FOR THE
RESPONDENTS:
Adv G Hulley
Instructed
by Solomonholmes Attorneys
[1]
[2008]
4 BLLR 299
(LAC) (
Ramabulana
).
[2]
At
para 10.