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[2008] ZALCJHB 6
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Eskom Holdings (Pty) Ltd v National Union of Mineworkers and Others (JR1576/07) [2008] ZALCJHB 6 (26 September 2008)
IN THE LABOUR COURT
OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NUMBER: JR
1576/07
In
the matter between
ESKOM
HOLDINGS (PTY) LTD
Applicant
and
NATIONAL UNION OF
MINEWORKERS
First
Respondent
NATIONAL
UNION OF METALWORKERS
OF
SOUTH
AFRICA
Second
Respondent
SOLIDARITY
Third
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Fourth
Respondent
COMMISSIONER
ALLI
N.O
Fifth
Respondent
JUDGMENT
AC BASSON, J
[1] The Applicant, ESKOM
Holdings Limited, operates in an industry designated as an essential
service. The Applicant has not concluded
a Minimum Services Agreement
with the First Respondent (the National Union of Mineworkers of SA);
the Second Respondent (the National
Union of Metalworkers of South
Africa) and the Third Respondent (Solidarity). The First to Third
Respondents wish to refer the
failure to agree on the terms of a
minimum service agreement as a dispute on a matter of mutual interest
to the Commission for
Conciliation, Mediation and Arbitration
(hereinafter referred to as “the CCMA”) for conciliation,
and if that fails
to resolve the impasse, to refer the dispute to
compulsory arbitration in terms of which process an award can be
procured in respect
of the designation of a minimum service which may
then be taken to the Essential Services Committee for ratification.
(I will refer
to the First to Third Respondents collectively as “the
Respondents”). This process is opposed by the Applicant. In
essence the parties differ on whether or not the CCMA has
jurisdiction to conciliate and arbitrate the dispute referred to it
by
the Respondents. The parties do, however, agree that no useful
purpose would be served in referring the matter back to the CCMA
for
reconsideration and requested this Court to substitute the finding of
the Commissioner with its own finding.
[2] The following legal
issues were before this Court:
(i)
Was it necessary for the Commissioner to make a jurisdictional
finding on the questions raised by the Applicant prior to any
conciliation of the dispute taking place? As I understand the
argument,
this Court does not have to decide this point and only has
to decide on the legal point referred to this Court (see the next
paragraph).
(ii)
Do the disputes arising within a designated essential service, which
may be referred to the CCMA for conciliation and, if unresolved, to
arbitration, include a dispute over a failure to conclude an
agreement on the terms of a minimum service agreement?
CCMA Proceedings
[3] The Respondents
referred the dispute (about the designation of a minimum service) to
the CCMA under section 74 of the Labour
Relations Act 66 of 1996
(hereinafter referred to as “the LRA”). The Respondents
contended that the CCMA is entitled
to conciliate a dispute about the
failure to conclude the Minimum Service Agreement and that they
would, if conciliation fail,
be entitled to refer the dispute to
interest arbitration to compel the Applicant to agree to a Minimum
Service Agreement. The Applicant
raised a jurisdictional objection to
the CCMA conciliating the dispute and argued that that the CCMA
lacked jurisdiction to determine
the dispute. It was further
contended on behalf of the Applicant that if the dispute is one which
is capable of determination,
it is the Essential Services Committee
and not the CCMA that should deal with the matter.
[4] The Fourth Respondent
(Commissioner M D Ally – hereinafter referred to as “the
Commissioner”) held that the
CCMA did have jurisdiction to
conciliate the issue.
[5] The Applicant filed a
review under the provisions of Section 145 and/or 158(1)(g) of the
LRA to review and set aside the jurisdictional
ruling of the
Commissioner and contended that this Court should substitute the
decision by granting declaratory relief to the effect
that the CCMA
lacks jurisdiction to conciliate and arbitrate the dispute. On behalf
of the Applicant it was argued that a review
at this point in time is
appropriate and that the contention of the Respondents that the
aggrieved Applicant should have waited
for conciliation and then
arbitration and only thereafter should have reviewed the award for
lack of jurisdiction is plainly wrong
because any conciliation and
subsequent arbitration proceedings would be a nullity if indeed the
CCMA lacks jurisdiction to determine
the dispute in the first place.
(See
Eskom v Marshall & Others
(2003) 1
BLLR
12
(LC)). As already pointed out, it was agreed that I need not decide
this jurisdictional point.
Commissioner’s
Ruling
[6] The commissioner
ruled as follows:
"ANALYSIS OF
EVIDENCE AND ARGUMENT.-
(1)
I have before me a very complex set of legal questions related
to the dispute at hand. The ruling that I am asked to make is whether
the CCMA has jurisdiction to conciliate the dispute;
(2)
In order to address the arguments before me I have to check where my
powers as a commissioner
come from.
(3)
The answer to the above can be found in chapter (vii) Part C of the
LRA with reference s133,1(a)
and (b) which reads as follows:
`133 Resolution of
disputes under the auspices of a commissioner' and further
subsection, reads:
The commission must
appoint a commissioner to attempt to resolve through conciliation
(a)
any dispute referred to it in terms of section 134, and
(b)
any other dispute that has been referred to it in terms of
this Act
(4)
Notwithstanding the complex legal questions raised, my analysis
of
the above is that the CCMA has the power to conciliate any dispute
that has been referred to it in terms of this Act.
(5)
The next question is whether the issue in dispute can be termed
as
arising out of this Act (the LRA) and it is clear that Section 70 to
74 are provisions as provided in the LRA.
(6)
The question as to whether the issue falls under
s134 or not is not
for me to decide and should be a decision of the conciliating
commissioner when the commissioner is called upon
to identify the
nature of dispute before issuing a certificate of non-resolution.
(7)
To answer all the legal questions raised by the parties will in my
opinion mean that I will be arbitrating on these matters without
having the necessary powers to do so and that these legal questions
should be dealt with in an arbitration/adjudication stage.”
RULING
I therefore rule that
in terms s133,1(b) of the CCMA has the jurisdiction to conciliate the
issue in dispute and therefore submit
the dispute back to the CCMA
for the appointment of another commissioner to conciliate. "
Broad
legislative phramework
[7] Sections 70 –
74 of the LRA provide the legal phramework governing the dispute
resolution processes in essential services.
These sections are
situated in Chapter IV of the LRA which deals with strikes and
lock-outs.
[8] In terms of section
65(1)(d)(i) of the LRA, no person may take part in a strike or
lock-out or in any conduct in contemplation
or furtherance of a
strike or a lock-out if that person is engaged in an essential
service.
Section 70
of
the
Labour Relations Act 66 of 1995
[9] The Essential
Services Commissioner is created by the LRA. In terms of
section
70(2)
of the LRA the functions of the ESC are :
"(a) To conduct
investigations as to whether or not the whole or part of any service
is an essential service, and then to decide
whether or not to
designate the whole or part of that service as an essential service.
(b) To determine
disputes as to whether or not the whole or part of
an any service
is an essential service; and
(c) To determine
whether or not the whole or part of any service is a maintenance
service."
[10] In terms of
section
70(2)(a)
and (b) of the LRA, the Essential Services Committee may
embark on its own investigation with a view to determining whether
part
or all of a service constitutes an essential service, or to make
such a determination arising from a dispute over the essential
or
non-essential character of a particular service. The end result in
either case is that the Essential Services Commissioner designates
part or all of the service in question as an essential one, or no
designation is made at all.
Section 71
sets out the procedure through
which a designation is arrived at by the Essential Services
Commissioner.
Section 72
of
the LRA
[11]
Section 72
the LRA
provides for the conclusion of a Minimum
Service Agreement in the
following terms:
"The Essential
Services Committee may ratify any
collective
agreement
[1]
that
provides for the maintenance of minimum services in a service
designated as an essential service, in which case:
(a)
the agreement minimum services are to be regarded as an
essential service in respect of the employer and its employees, and
(b)
the provisions of
section 74
do not apply."
Section 73
of
the
Labour Relations Act
[12
]
Section 73
deals
with
disputes
about whether a service is an
essential
service. The type of dispute referred to here is about
whether a particular employer or employees are engaged in an
essential service
which has already been designated as such. This
section reads as follows:
"(1)
Any party to a dispute about either of the following issues may
refer the dispute in writing to the Essential Services Committee
(a)
Whether or not a service is an essential service; or
(b)
Whether or not an employee or employer is engaged in a service
designated as an essential service.".
Section 74
of
the LRA
[13]
Section 74
deals
with disputes in an essential service and it reads as
follows:
“
Any party to
a dispute
[2]
that is
precluded from participating in a strike or lockout because that
party is engaged in an essential service may refer the
dispute in
writing to:
(a)
a council, if the parties of the dispute fall within the
registered scope of that council; or
(b)
the commission, if no council has jurisdiction.
(2)
The party who refers the dispute must satisfy the council or
the commission that a copy of the referral has been served on all the
other parties to the dispute;
(3)
The council or the commission must attempt to resolve the
dispute through conciliation;
(4)
If the dispute remains unresolved, any party to the dispute
may request that the dispute be resolved through arbitration by the
council or commission".
[14] The importance of
this section cannot be overstated as it is aimed at providing an
alternative dispute resolution mechanism
to parties who are
engaged in an essential service and who are prohibited in terms of
section 65(1)(d)(i)
of the LRA from striking.
Applicant’s
submissions
[15] The gist of the
Applicant’s contention was that the dispute resolution
procedures contained in
section 74
of the LRA is not applicable in
the present matter and as a result the Respondents’ remedy was
to have referred the dispute
to the Essential Services Committee if
they are not satisfied with the present Essential Services
Committee's declaration which
designated the Applicant as an
essential service. It was argued that in terms of
section 70(2)(c)
as
read with
section 73(1)
, the Essential Services Committee alone has
the power to finally determine the current controversy.
[16] More to the point
was the argument that the provisions of
section 72
, properly read and
interpreted, only refer to a “
collective agreement”
and not an “
awar
d”. Consequently, so it was
argued, it is not possible for the CCMA by means of an “
award”
to impose a collective agreement (which provides for the designation
of a certain portion of the Applicant as a minimum service)
upon the
parties because, if
section 72
is properly read, it is clear that a
minimum service agreement can only come into being in terms of a
collective agreement
(and not an “
award”
)
which implies that a
consensual
process has preceded the
conclusion of the collective agreement.
What is a
minimum service?
[17]
Section 213
of the
LRA (the definitions section of the LRA) defines an "
Essential
Service
" but contains no definition of a "
Minimum
Services Agreement
".
[18] If
section 72
of the
LRA is read, it is clear that parties (employers and employees and
their respective recognized representatives) engaged
in the provision
of a service that has been designated by the Essential Services
Commissioner (in terms of its powers contained
in
section 70
of the
LRA) as an
essential service,
may conclude a “
collective
agreement”
that provides for the maintenance of a minimum
service (in the service that was designated as an essential
service). Once
a “
collective agreement”
has
been concluded in respect of the maintenance of a minimum service,
the “
collective agreement”
must be referred to the
Essential Services Commission (in terms of
section 72
of the LRA) and
the said Commission “
may
” then ratify the
“
collective agreement
”. What is, however, also
clear from a reading of
section 72
is the fact that
section 72
of the
LRA specifically refers to the ratification of a “
collective
agreement”
as the instrument in terms of which provision is
made for the maintenance of a minimum service during industrial
action. On behalf
of the Applicant it was persuasively argued that
the Court cannot disregard the exact wording used by the legislature
in
section 72
which (as already pointed out) speaks of the
"
maintenance of minimum services'
” in a service
designated as essential in terms of
"any collective agreement
that provides for the maintenance of minimum services in a service
designated as an essential service"
. Put differently, in
light of the fact that the legislature has expressly limited the
instrument in terms of which a minimum service
may be created or
agreed upon, the Court is bound to accept that a minimum service may
only be created or established in terms
of a “
collective
agreement
” (and not in terms of an “
award
”).
[19] I am in agreement
with this argument and I will expand on my reasons hereinbelow.
Having accepted that the legislature has
intended to allow a
reduction of the ambit of a designation of a service as an essential
service by means of a “
collective agreement”
, the
next question which invariable arises is whether the term “
collective
agreement
” includes an “
award
”. This
question is particularly important in the context of this case and in
the context of an essential service where employees
are precluded
from embarking on strike action. It is clear from a reading of
section 65(1)(d)(i)
of the LRA that the option of a strike as a
mechanism to enforce or to boulster demands put foreward during the
collective bargaining
process, is not available to essential services
employees. However, should a dispute arise in respect of which the
employees are
precluded from participating in a strike (or lock-out)
the aggrieved party may refer the dispute to the CCMA or to a
bargaining
council with jurisdiction. If conciliation fails, the
dispute may be referred for (compulsory) arbitration and the
Commissioner
may issue an “
award”
which will
dispose of the dispute and which will be binding on the parties. In
effect the dispute will thus be resolved by a third
party (the
Commissioner). The outcome of the compulsory arbitration process will
be embodied in an arbitration “
award
” which will
have binding effect on the parties and may be enforced by either
party. Once a deadlock is reached in the
collective bargaining
process, essential service employees are thus effectively (for
justifiable reasons) precluded from enforcing
their demands through
strike action. For employees not engaged in the provision of
essential services (subject to the limitations
imposed by
section 65
of the LRA), strike action is available. The outcome of strike action
often results in the conclusion of a collective agreement
in terms of
which the parties by agreement resolve the dispute that was the
subject of collective bargaining and which had resulted
in strike
action. In the case of essential services employees, the only route
available to break the deadlock (in collective bargaining)
disputes
is through a process which will ultimately result in a Commissioner
(a third party) resolving the dispute by issuing an
arbitration
“
award”
. The scenario envisaged in the preceding
discussion is thus where parties (engaged in essential services)
cannot resolve a dispute
and reach deadlock and without the option of
strike action, parties have no other option than to refer the dispute
to (compulsory)
arbitration. The result of the arbitration process is
an “
award
” and not a “
collective
agreement
”. Can these terms or instruments be used
interchangeably? The answer to this question is particularly
pertinent in the context
of
section 72
of the LRA which expressly
states that a “
collective agreement
” may provide
for a minimum service and furthermore that the Essential Services
Committee may ratify the “
collective agreement
”. A
reading of this section, on the face of it, supports the contention
advanced on behalf of the Applicant namely that only
a “
collective
agreement
” can contain a minimum service agreement and only
a “
collective agreement
” (containing such an
agreement) may be ratified by the Essential Services Commission and
not an “
award
”
What is a
collective agreement?
[20] A collective
agreement is defined in
section 213
of the LRA. If the definition is
analysed it is clear that such an agreement comprises of three
elements: (i) certain parties may
conclude a collective agreement
namely employers and employees or their accredited juristic
representatives; (ii) the agreement
is in writing; and (iii) the
subject matter is
"terms and conditions of employment or any
other matter of mutual interest".
Should these (designated)
parties thus conclude a minimum service agreement and provided that
such an agreement is ratified by the
essential services commissioner
(in terms of
section 72
of the LRA), the effect would be to
abbreviate the initial designation of the Essential Services
Commission of a particular services
as an essential service to the
extent provided and agreed upon in terms of the minimum service
agreement. The practical effect
of a minimum service agreement is
therefore to exempt or release in terms of a collective agreement
some workers of a designated
(essential services) employer from the
prohibition to strike. Another employer in the same designated
enterprise and its employees
would remain prohibited from resorting
to industrial action as they have not concluded a collective
agreement providing for an
abbreviation of the initial designation.
(See in general: Dhaya Pillay
Essential Service under the new LRA
[2001] 22
ILJ
1 at p27 (hereafter referred to as “Pillay”)).
[21] On behalf of the
Applicant it was argued that it is significant that the only
"
instrument
" that the essential services commission
may ratify is a “
collective agreement
”. This much
is, as already pointed out, clear from a reading of
section 72
of the
LRA which expressly refers to the ratification of “
any
collective agreement
”. It was further submitted that it is
significant that there is no reference of a ratification of an
“
award”
in terms of
section 72
of the LRA. This
much is also clear from a reading of this section.
Does a
“collective agreement” exclude from its ambit “an
award”?
[22]
On behalf
of the Applicant it was argued that a literal interpretation of
"
collective
agreement
"
is sustainable and argued with reference to a plethora of cases that
the term "
collective
agreement
"
does
not
incorporate instruments of reciprocal binding force upon parties who
have not reached true consensus on a matter regulated in the
award.
For this reason, it was argued, an award cannot be incorporated in
the term “
collective
agreement
”
as an award
[3]
, by its very
nature, imposes upon parties a decision or outcome which is not the
product of an agreement.
[4]
[23] The Court was also
referred to other sections in the LRA which support the contention
that a distinction should be drawn between
collective agreements on
the one hand and an award and determination on the other hand:
(i)
Sections 23
and
24
deal with the enforcement and interpretation of
collective agreements. On behalf of the Applicant it was argued that
these provisions
clearly refer to “
real”
agreements and not to “
constructive”
agreements.
(ii)
Section 65
stipulates,
inter alia,
that employees may not
strike where employees are bound by a collective agreement
or
award that regulates the issue in dispute (see
sections 65(3)(a)(i)
&
(ii)). The Applicant argued with reference to these sections
that it is significant that a distinction is made between
“
an
award”
and a “
collective agreement”
as
the instrument that regulates the issue in dispute and that these
two instruments are not used interchangeably. Where there is an
award
binding the person that forbids striking, that distinct source of
obligation is plainly identified and distinguished from
a collective
agreement.
[24] With reference to
these provisions it was therefore submitted that these provisions
support the notion that reference to a
collective agreement means
only
a true agreement
based on
de facto
consensus. I am
in agreement with this submission.
[25] With reference to
the present set of facts and specifically with reference to
section
72
of the LRA (where there is reference only and specifically to a
"
collective agreement
"), it was submitted that this
contemplated a reference to a “
collective agreement”
as defined in
section 213
which is a true consensual agreement, and
not an award. Such an interpretation would be consistent with the
core common law concept
of an agreement which implies the outcome of
a completely voluntary commitment to be bound which is derived from a
freedom to choose
to be bound or nor to be bound.
[26] This Court was also
referred to the ILO's 1994 General Survey, Para 161 on "
negotiated
minimum services
" in terms of which the view is advanced
that such agreements should not be addressed as part of a labour
dispute, but be ring-fenced
so that objectivity and detachment might
reign. The emphasis is, so it was argued, keenly on a true meeting of
the minds which
is embodied in a collective agreement.
Do disputes arising
within a designated essential service which may be referred to the
CCMA for conciliation and if unresolved to
arbitration, include a
dispute over a failure to conclude an agreement on the terms of a
minimum service agreement?
[27]
I am in
agreement with the general submission that orderly collective
bargaining and the effective resolution of disputes are some
of the
core and primary objectives of the LRA. Even more important is the
object of the LRA to give effect and to regulate the
fundamental
rights conferred by section 27 of the Constitution, Act 108 of 1996.
Section 23
[5]
of the
Constitution provides that every employee has the right to strike and
unions have the right to engage in collective bargaining.
There is no
doubt that the right to strike is an important right and that it
plays a pivotal role in the collective bargaining
process. See
NUMSA
v Bader BOP
[2002] ZACC 30
;
[2003] 2 BLLR 103
(CC) at paragraph
[13]
]:
“
[13]
In section 23, the Constitution recognises the importance of ensuring
fair labour relations. The entrenchment of the right
of workers to
form and join trade unions and to engage in strike action, as well as
the right of trade unions, employers and employer
organisations to
engage in collective bargaining, illustrates that the Constitution
contemplates that collective bargaining between
employers and workers
is key to a fair industrial relations environment. This case concerns
the right to strike. That right is
both of historical and
contemporaneous significance. In the first place, it is of importance
for the dignity of workers who in
our constitutional order may not be
treated as coerced employees. Secondly, it is through industrial
action that workers are able
to assert bargaining power in industrial
relations. The right to strike is an important component of a
successful collective bargaining
system. In interpreting the rights
in section 23, therefore, the importance of those rights in promoting
a fair working environment
must be understood. It is also important
to comprehend the dynamic nature of the wage-work bargain and the
context within which
it takes place. Care must be taken to avoid
setting in constitutional concrete, principles governing that bargain
which may become
obsolete or inappropriate as social and economic
conditions change.”
[28] The importance of
the right to strike is further reinforced by the view that the
constitutional right to strike should not,
in the absence of express
limitations, be restrictively interpreted. See
Chemical Workers
Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (1999) 20
ILJ 321 (LAC) at paragraphs [27] – [28]:
“
[27]
The arguments of both Mr van der Riet and Mr Loxton proceeded, also
in my view correctly, on the premise that
a proper appreciation of
the statutory provisions concerning B strikes depends on
their purpose. Mr van der Riet contended
that the purpose of s
64(1)'s procedural requirements is to compel employees to explore the
possible resolution of their dispute
through negotiations before
exercising their right to strike. The concept of a protected strike
presupposes such negotiations.
Once that purpose has been fulfilled,
no further statutory object would be served by limiting the right to
strike only to employees
directly affected by the demand. Instead,
the restriction envisaged would place a substantive limitation on the
right of non-bargaining
unit union members to strike for which the
provisions of the statute offer no explicit or implicit support. I
agree with the submission.
[28]
The Constitutional Court has itself emphasized the general importance
of the right to strike:
'Collective bargaining
is based on the recognition of the fact that employers enjoy greater
social and economic power than individual
workers. Workers therefore
need to act in concert to provide them collectively with sufficient
power to bargain effectively with
employers. Workers enjoy collective
power primarily through the mechanism of strike action.'
The court went to
point out that the importance of the right to strike for workers has
led to its being entrenched far
more frequently as a
fundamental right in constitutions than is the right to lock out, and
that the two rights 'are not always
and necessarily equivalent' (In
Re: Certification of the Constitution of the Republic of South Africa
1996 (1996) 17 ILJ
821 (CC); G
[1996] 10 BCLR 1253
(CC) at 1284-5 para [66].) This is of course not to say that striking
should be encouraged or unprocedural strikes condoned: but
only that
there is no justification for importing into the LRA, without any
visible textual support, limitations on the right to
strike which are
additional to those the legislature has chosen clearly to express.”
[29] The right to strike
may, therefore, be limited in the same manner as any other right
entrenched in the Constitution but subject
to the provision of the
limitation clause contained in section 36(1) of the Constitution. One
acceptable limitation is that on
the right to strike in essential
services. Although it is accepted that workers engaged in essential
services may be denied the
right to strike, it is equally accepted
that the restriction be accompanied by an alternative process of
dispute resolution such
as the right to conciliation and thereafter
arbitration. This approach is in line with ILO standards (see
ILO
Digest
2006 at 109 paragraph 524 and
ILO Freedom of
Association and Collective Bargaining
1994 at 70 paragraph 159).
The LRA, in congruence with its ratification of ILO Convention 87 and
98, must therefore provide a dispute
resolution mechanism as an
alternative to strike action to essential service employees. There is
a further argument which is even
more compelling, and I am in
agreement with Mr. Kennedy, and that is that a curtailment of the
right to strike without providing
an alternative dispute resolution
mechanism would be an unduly restrictive limitation on the right to
strike which is provided
in the Bill of Rights.
Prohibition of
strike action and alternative dispute resolution
[30] It is clear that the
prohibition on strike action in respect of employees engaged in
essential services is a blanket one. However,
this prohibition may be
qualified in circumstances where a collective agreement providing for
a
minimum service
has been ratified by the Essential Service
Commissioner. Once ratified only those employees engaged in the
minimum service will
be regarded as the essential service.
[31] In line with the
objective of the LRA which is,
inter alia
, to allow for the
effective resolution of disputes, section 74 of the LRA provides that
any party to a dispute that may not be
engaged in industrial action
because they are engaged in an essential service, may refer the
dispute to the CCMA which must attempt
to resolve the dispute through
conciliation. If conciliation is successful, any party to the dispute
may request the relevant body
to resolve the dispute though
arbitration. The outcome of the compulsory arbitration process would
be an arbitration award. The
commissioner will therefore effectively
resolve the dispute for the parties as they are not afforded the
right to enforce a resolution
of the dispute by resorting to
industrial action.
[32] The question which
arises and which is pertinent to the present application, is whether
the statutory dispute resolution mechanism
as provided for by section
74 of the LRA exclude certain disputes from its ambit? On behalf of
the Respondent it was argued that
the disputes referred to in section
74 are identified only by the characteristic that the dispute is one
which a party to it is
“
precluded from participating in a
strike or lock-out”
because that party is engaged in an
essential service. On behalf of the Respondent it was argued that no
other limitation is placed
on the type of dispute that may be
referred to the statutory mechanism for resolution. On this basis
alone, it was submitted that
the CCMA has jurisdiction over the
dispute referred to it by the unions under the provisions of section
74 of the LRA which is
a dispute about the designation of a minimum
service with a designated essential service. I am in agreement with
the submission
that, on the face of it, section 74 of the LRA does
not limit the type of dispute that may be referred to the CCMA for
compulsory
arbitration and that, at least, on the face of it, a
dispute about the conclusion (and/or ambit) of a minimum service
agreement
may (on a reading of this section) be referred to the CCMA
as a dispute over which parties may not strike and which may
therefore
be subjected to compulsory arbitration.
[33] There is furthermore
a strong argument to be made out that it could not have been the
intention of the legislature to leave
essential service employees
in
vacua
and without any alternative dispute resolution mechanism
where the dispute is about the conclusion of a minimum service
agreement.
Not only is this contrary to the purpose of the LRA which
is to provide for the effective resolution of dispute, but also
contrary
to the obligation to provide for effective alternative
resolution of disputes in circumstances where the right to embark on
strike
action has been limited because the employees are engaged in
the provision of essential services. The argument strongly supports
the conclusion that any dispute (in respect of which parties may not
strike) may be subjected to the section 74 conciliation and
(compulsory) arbitration process and any dispute may be resolved or
form the subject matter of an “
award
” which
embodies the decision of the Commissioner in respect of the dispute
referred to it.
[34] This argument,
however, no matter how compelling and sound taking into account the
purpose of the LRA which is,
inter alia
, to allow for the
speedy resolution of labour disputes, does not, in my view, provide a
solution to the undisputed fact that section
72 only allows for the
ratification of a “
collective agreement
” which
provides for a minimum service and not for the ratification of an
“
award
”. The question is whether this Court should
accept that this could not have been the intention of the legislature
to leave
essential service employees
in vacua
and without the
remedy of compulsory arbitration or whether the Court should accept
that the legislature might not have intended
the dispute about
minimum services to be arbitrated by a third party (a Commissioner or
arbitrator)?
[35] In
Dudley v City
of Cape Town & Another
unreported judgment of the Labour
Appeal Court: CA 1/05 (21 August 2008), the Labour Appeal Court dealt
with, what seemed to be
an obvious and striking absence of a dispute
resolution procedure in the context of Chapter III of the
Employment
Equity Act 55 of 1998
. The learned Zondo, JP debated this omission as
follows:
“
[42]
I have stated above that chapter III of the Act deals with
affirmative action. I have above also alluded
to the fact that
chapter II of the EEA – which deals with the prohibition of
unfair discrimination - contains a dispute resolution
procedure. That
dispute resolution procedure is available to “
any
party to a dispute concerning
”
that chapter. (sec 10(2)). That dispute resolution procedure
culminates in the adjudication of a dispute by the Labour Court
if
conciliation fails to achieve a resolution. What is very striking
about Chapter III is the fact that no dispute resolution procedure
is
provided for in that chapter. It is difficult to think that the
drafters of the Act remembered to include a dispute resolution
procedure in Chapter II for disputes concerning that chapter but
suddenly forgot to include a dispute resolution procedure in Chapter
III, when they came to the latter chapter. The more plausible
explanation for their omission to include such a procedure in chapter
III is that they did not forget to include it but deliberately
omitted to do so for some reason.”
[36] The learned judge
therefore concluded that the more plausible explanation is not that
the legislature had simply “
forgotten
” to do so,
but that it was a deliberate omission for “
some reason”
.
Whether or not this is a justifiable omission or whether or not this
is correct to have done so, the Labour Court (and the Labour
Appeal
Court) cannot ignore the plain language of the legislature. See
further paragraph [46] where the Labour Appeal Court in
the
Dudley
-matter stated the following:
“
[46]
It also needs to be noted that the drafters of the EEA included a
dispute resolution procedure in Part C
of Chapter V.This is in sec
52. Once again how could the drafters have remembered to include a
dispute resolution procedure in
Chapter II, forgotten to include one
in Chapter III but once again suddenly remembered to include one in
Chapter V? That can simply
not be! The fact of the matter is that
they intended that any interested party who is aggrieved by a
designated employer’s
failure to comply with any of its
obligations under chapter III would take steps to have the
enforcement procedure provided for
in chapter V invoked and they did
not intend that such an interested party could simply ignore that
procedure and institute court
proceedings. That is the policy choice
that was made by the legislature. It may be good or it may be bad but
the legislature was
entitled to make that policy choice”.
[37] Although the
omission by the legislature to include the ratification of an “
award”
(which provides for the maintenance of a minimum service in a service
designated as an essential service) as one of the functions
of the
Essential Services Committee, appears to be in conflict with the
purpose of the LRA (which is,
inter alia,
to facilitate and
encourage the resolution of labour disputes) and to provide for an
alternative mechanism to resolve labour disputes
especially in the
context of essential services where the parties do not have the right
to resort to a strike, it would appear
that the legislature had made
a deliberate policy decision not to provide for the ratification of
compulsory arbitration awards
containing an award in respect of a
minimum services.
[38] My conclusion in
this matter is therefore that it appears from a plain reading of the
LRA that the legislature had made a deliberate
policy choice to
exclude from the powers of the Essential Service Committee the power
to ratify “
awards
” that provide for a minimum
service (and which is the result of a compulsory arbitration
process). In the result I therefore
have to agree with the Applicant
that the only forum that is competent to intervene in disputes about
essential services (and also
disputes about minimum services) is the
Essential Services Commissioner. I am also of the view that an
“
award
” cannot be what is contemplated as a
“
collective agreement”
in terms of section 72 of
the LRA and is therefore not capable of ratification by the Essential
Services Commissioner.
[39] I accordingly grant
the order as per the joint proposal for a draft order in the event
this Court finds in favour of the Applicant:
(a)
The decision of the Commissioner is reviewed and set aside;
(b)
It is declared that the CCMA does not have the jurisdiction to deal
with
a dispute arising from a failure to agree on the terms of a
minimum services agreement.
(c)
There is no order as to costs.
_______________________
AC BASSON, J
26 September 2008
APPLICANT'S
COUNSEL:
ROLAND SUTHERLAND SC FEROZE BODA KENNY PHETO
FIRST TO THIRD
RESPONDENTS' COUNSEL:
PAUL KENNEDY SC ROBERT LAGRANGE
[1]
Additional emphasis.
[2]
Additional emphasis.
[3]
Except, of course, where parties consent to an order. This scenario
is not contemplated in the context of this judgement.
[4]
See:
SAMWU
Ethekweni Municipality
[2006] 27
ILJ
225 (BCA) at [19];
Kwazulu
Natal South Coast Accommodation Association v Bargaining
Council for the Liquor, Catering and Associated Trades
[2004] 25
ILJ
2211 (LC) at [32];
Jardine
v Tongaat- Hullett Sugar Ltd
[2003] 24
ILJ
1147 (LC) at [5];
Coin
Security Group (Pty) Ltd v Minister of Labour
[2001] 23
ILJ
2399 (SCA);
Fredericks
v MEC, Education and Training Eastern Cape
[2002] 23
ILJ
81 (CC) at [23] & [28];
Bader-Bop
(Pty) Ltd v NUMSA
(2002) 23 ILJ 104 (LAC) at [27];
Oil
Chemical General and Allied Workers Union v Volkswagen
[2002] 23
ILJ
220 (CCMA) at p221;
NAPTOSA
v Minister of Education, Western Cape
[2001] 22 ILJ 889 (C );
PSA
v Provincial Administration, Western Cape
[2000] 21 ILJ 680 (CCMA);
Kem-Lin
Fashions v Brunton
[2000] 21 1357 (LC) at [25];
IMATU
v Cape Town Municipality
[1999] 19 ILJ 960 (CCMA);
SACAWU
v Specialty Store
[1998] 19 557 (LAC)
Ceramic
Industries t/s Betaware Sanitaryware v NCBAWU
[1997] 18 ILJ 550 (LC).
[5]
23 Labour relations
(1)
Everyone has the right to fair labour practices.
(2)
Every worker has the right-
(a)
to form and join a trade union;
(b)
to participate in the activities and programmes of a trade union;
and
(c)
to strike.
(3)
Every employer has the right-
(a)
to form and join an employers' organisation; and
(b)
to participate in the activities and programmes of an employers'
organisation.
(4)
Every trade union and every employers' organisation has the right-
(a)
to determine its own administration, programmes and activities;
(b)
to organise; and
(c)
to form and join a federation.
(5)
Every trade union, employers' organisation and employer has the
right to engage in collective bargaining. National legislation
may
be enacted to regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the limitation
must
comply with section 36 (1).
(6)
National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the
legislation may limit a right in this Chapter the limitation must
comply with section 36 (1).