About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2010
>>
[2010] ZALCD 14
|
|
IMATU v South African Local Government Bargaining Council and Others (D513/06) [2010] ZALCD 14 (5 February 2010)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT DURBAN
REPORTABLE
CASE
NO:
D513/06
In the matter between:
IMATU
Applicant
and
THE SOUTH AFRICAN
LOCAL GOVERNMENT BARGAINING COUNCIL
First Respondent
A J RYCROFT N.O.
Second Respondent
ETHEKWINI
MUNICIPALITY
(METRO
FIRE SERVICES)
Third Respondent
SAMWU
Fourth Respondent
JUDGMENT
CONRADIE
AJ
INTRODUCTION
1.
In this matter the Applicant (Imatu) seeks an order reviewing and
setting aside a “ruling” that an award does not
operate
retrospectively, and amending it to make the award operate
retrospectively.
2.
If the relief sought appears to be unusual then that is because the
facts of the matter insofar as they relate to the grounds
for review
are somewhat unusual. I do not need to repeat all the facts in
the matter as the facts relevant to the issue to
be decided do not
depend on the facts which pertained to the underlying dispute.
3.
This matter came before the Second Respondent (the Arbitrator) as an
interest arbitration in terms of section 74 of the Labour
Relations
Act 66 of 1995 (the LRA). The underlying dispute related
to an allowance which used to be paid to members
of Imatu and the
Fourth Respondent (Samwu) up until its withdrawal in August 2003.
4.
On 23 March 2006 the Arbitrator forwarded the following email to the
attorneys representing the unions and the Third Respondent
(the
Municipality) respectively:
“
Dear
Richard and Michael
I
am about to issue my award in the Metro Fire exemption allowance
arbitration.
I
am anxious to avoid an order which is difficult to implement or
simply unworkable because of a lack of records. What I would
like to do is to provide you both with the last part of my award and
for you to give me feedback on any practical aspects which
could make
the award easier to implement. You’ll realize, I hope,
that I am not asking for comments on the merits of
my decision, just
the implementation thereof! I’d appreciate your comments.
Regards
Alan
Rycroft”
5.
The email continues with the Arbitrator then setting out what he
purports to be his finding in the matter as follows:
“
61
To sum up: It is my view that:
(a)
there is no jurisdiction in the circumstances of this case to
reinstate the exemption allowance;
(b)
the averaged working hours system does not include scheduled
overtime;
(c)
with regard to unscheduled overtime, there is no legal
obligation to exclude from overtime pay those employees earning in
excess
of the amount determined by the Minister from time to time in
terms of s 6(3) of the BCEA;
(d)
I am not prohibited from considering the fairness of the
consequences of the threshold on individual employees as there
existed
a long-standing practice to pay an allowance (which included
overtime) regardless of the threshold earnings;
(e)
It was inequitable to move from the exemption allowance system
which ignored salary thresholds to a system which is prejudicial to
those earning in excess of the threshold.
62 A consequence
of these views is that the Applicant’s pray that I order that
the exemption allowance of 29% be reinstated
is refused.
However with regard to those earning in excess of the threshold, I
order that they be treated on the same basis
as all other employees
as regards overtime, night allowance, Sunday time and public
holidays. This order is herby made effective
until such time as
agreement has been reached in the rationalisation of allowances as
referred to in the Staff Placement Policy.
63
I can see no reason why this rectification should not be made
retrospective to August 2003. I am mindful that there
may be
difficulties in computing the arrear payments and, in accordance with
the Respondent’s request, Applicants are required
to submit a
list of individuals who are party to this dispute and a computation
of their claims so that that list can be verified
by the Respondent
before the award is given effect.
5.1.
AWARD
5.1.1.
For the reasons set out above I make the order as set out in
Paragraphs 62 and 63 of this award.
”
6.
A response was received from Mr Richard Haslop, who appeared on
behalf of Imatu & Samwu, and from Mr Michael Maeso, who appeared
on behalf of the Municipality. Both representatives dealt with
issues touching on the retrospectivity of the award.
Mr Maeso
suggested that “
a retrospective award to the 1st August 2003
creates enormous practical problems and industrial relations
concerns. As this
is a dispute of interest, there is nothing
preventing an award that is not retrospective or if it is
retrospective, to be retrospective
for a short period to lessen the
administrative complications in implementing such an award.”
7.
Following on the above, on 16 May 2006 the Second Respondent issued
an award in terms of which he indicated in paragraph 64 that
he was
persuaded that the rectification should not be made retrospective.
This is obviously contrary to what was stated with
reference to
paragraph 63 in the email.
8.
The crux of the dispute turns on the Arbitrator’s change of
view in respect of the issue of retrospectivity. The
unions
contend that their members are entitled to the retrospectivity as
contained in the email. The Municipality, on the
other hand,
argues that there is no retrospectivity as per the award of 16 May
2006.
Imatu’s
Submissions
9.
Imatu’s submissions can be summarised as follows:
9.1.
The Arbitrator communicated his decision to the legal representatives
in an email by providing them with the last few paragraphs of the
award that he was about to issue.
9.2.
He asked for feedback only to make the practical implementation
of
the award easier.
9.3.
He made the following clear in his email:
9.3.1.
He was about to
issue his award, i.e. he had made a final decision;
9.3.2.
He did not require
or expect any comment on the decision as such, but
asked for feedback on any practical aspects which would make the
award easier
to implement;
9.3.3.
He had decided
that the rectification to which effect was given in
the award was to operate retrospectively to August 2003;
9.3.4.
He set out the
decision in the body of the email itself, being the
last three paragraphs of the reasoning leading to the award, and in
the final
paragraph he set out the award itself.
9.4.
It was not open to the Arbitrator to change his mind when
he issued
the signed award which he changed substantially by ruling that the
award would not operate retrospectively.
9.5.
Having made a decision that impacted on the parties’
rights,
and having communicated that decision to the parties, the Arbitrator
was
functus officio
and therefore could not change his mind
and alter his decision.
9.6.
The Arbitrator could only reopen his decision if enabling
legislation
expressly or by necessary implication gave him the authority to do
so.
9.7.
He had clearly and concisely communicated to the parties what
he had
decided via the email in question. There was no qualification
that the award was not finalised on the issue of whether
the relief
should be granted and if so whether it should be retrospective and to
what date. The only peripheral issue which
remained related to
how the practical implementation of the award could be made easier.
9.8.
The fact that there were legislative or procedural steps that
had to
be taken before the award would be published in a form that would
allow it to be enforced does not detract from the fact
that the
decision that the award would operate with retrospective effect had
been made and communicated to the parties.
The
Municipality’ Submissions
10.
The Municipality’s arguments can be summarised as follows:
10.1.
An arbitrator is not
functus officio
until he or she has made
a final award in the proceedings.
10.2.
The Arbitrator’s email was sent to the attorneys representing
the parties
after evidence had been lead and written representations
had been made. The award was therefore in the process of
preparation.
10.3.
The Arbitrator’s email confirms that the content did not
constitute a final
and binding arbitration award.
10.4.
It was only on delivery of the award on 16 May 2006 that the
Arbitrator became
functus officio
. It was therefore open
to the Arbitrator to revise any preliminary findings which he might
have made with regard to the award
in preparation of the final award
dated 16 May 2006.
10.5.
The Arbitrator’s email to the parties can best be described as
his preliminary
findings. The final decision would only be
taken once the parties had provided input on the practical
implementation of the
award.
10.6.
The Bargaining Council’s own Constitution provides that within
14 days of
the conclusion of the arbitration proceedings the
arbitrator must issue an arbitration award with reasons, signed by
the arbitrator.
In terms of the Constitution the arbitration
award was only issued when the Arbitrator delivered the award to the
parties on 17
May 2006. It was only then that he became
functus officio
.
Requirements
for a valid award
11.
Section
138(7) of the LRA provides that within 14 days of the conclusion of
an arbitration “
the
commissioner must issue an arbitration award with brief reasons,
signed by the commissioner.”
From this it is clear that an arbitration award must be in writing,
must provide brief reasons and must be signed by the
Commissioner.
In order for an award to exist the legal requirements contained in
the LRA as well as certain common law requirements
must be met. This
includes that the award must determine and finally dispose of the
dispute between the parties, it must be in
writing, contain reasons
and be signed by the commissioner.
[1]
12.
The LRA
also requires that the award be issued by the commissioner. The
word “issue” is not defined in the LRA.
In
Free
State Buying Association LTD t/a Alpha Pharm v SA Commercial
Catering & Allied Workers Union & Another (1998)
19 ILJ 1481
(LC)
it
was held that an award will be issued once it is made available for
service and filing.
[2]
13.
The reference to service relates to section 138(7)(b) which requires
that the Commission must serve a copy of the award on the
parties to
the dispute or on the person who represented them in the arbitration
proceedings. The reference to issue relates
to section
138(7)(c) which requires the Commission to file the original award
with the registrar of the Labour Court.
14.
I am of the
view that the provisions of section 138(7) requiring that an award be
issued, contain brief reasons and be signed by
the Commissioner are
peremptory. Until these requirements are complied with the
award has no legal effect.
[3]
15.
The email sent by the Arbitrator to the representatives of the Unions
and the Municipality does not comply with any of the above
requirements. Firstly, no reasons are provided in support of
the “award” which he intended to make as set out
in the
email. At most the email contains a summary of his
conclusions. Secondly, the “award” is not signed.
Thirdly, the award has not been issued by the Second Respondent in
the sense that it has been made available for service and filing.
16.
The
constitution of the bargaining council under whose jurisdiction the
parties to this dispute fall also required at the time that
an
Arbitrator must issue an arbitration award with reasons and must be
signed by the Arbitrator.
[4]
Functus
Officio
17.
Even if the email of the Arbitrator is not considered an award in
that it does not comply with the above requirements, the question
which remains is whether or not the Arbitrator could change his
decision as contained in the email.
18.
Imatu’s view is that the content of the email reflected the
decision which the Arbitrator had taken in the matter and
as such he
could not change that decision as he was
functus officio
.
19.
According
to Hoexter, the
functus
officio
doctrine applies only to final decisions. A decision is
therefore revocable before it becomes final. Finality is
considered
to be arrived at when the decision is published, announced
or otherwise conveyed to those affected by it.
[5]
20.
Imatu argues that the substance of what had to be decided had been
finally decided and was clearly communicated to the parties
by the
email in question. There was no qualification that the award
was not finalised on the issue of whether relief should
be granted
and whether it should be retrospective and to what date. All
that had been decided. The only issue that
remained related to
how the practical implementation of the award could be made easier.
21.
I am of the view that an arbitration award is only final when it is
complete in all respects and disposes of all the matters
in dispute.
It is only at this point that an arbitrator is
functus officio
.
An award can only be considered to be complete in all respects once
it has met the requirements of section 138(7) and any
requirements
which a particular bargaining council may have. This includes that
the award must contain brief reasons and be signed.
The content
of the email in question merely contains a decision without any
reasons. It is also not signed. There
has also been
no “publication” of the award in the sense that there has
been no service and filing of the award in
the manner contemplated in
the LRA.
22.
In the circumstances the application must fail. Insofar as
costs are concerned, the underlying dispute is clearly of
considerable importance to Imatu and the Municipality and as such it
was important to obtain clarity on the status of the e-mail
and the
award proper. I therefore see no basis for ordering Imatu to
pay the costs of this application.
In
the circumstances I make the following order:
1.
The application is dismissed;
2.
No order as to costs.
_____________________________
Conradie AJ
Date
of hearing
7
December 2009
Appearance
for Applicants
S
Reddy of Shanta Reddy Attorneys
Appearance
for Respondents
M
Maeso of Shepstone & Wylie
Date
of Judgment
5
February 2010
[1]
See
Bosch, Molahleli and Everett - The Conciliation and Arbitration
Handbook, 2004 at p156.
[2]
See also Queenstown Fuel distributors CC v Labuschagne NO and others
[1998] JOL 4234
(LC).
[3]
See Meyer v CCMA & Another
[2002] 2 BLLR 186
(LC).
[4]
See clause 10.7.10 of the 2003 constitution.
[5]
See Cora Hoexter, Administrative Law in South Africa, 2007 at 247.