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[2011] ZALCJHB 42
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Ngwathe Local Municipality v South African Local Government Bargaining Council (JR 1525/07) [2011] ZALCJHB 42; [2011] 12 BLLR 1206 (LC); (2011) 32 ILJ 2724 (LC) (26 May 2011)
Reportable
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR1525/07
In
the matter between:
NGWATHE
LOCAL MUNICIPALITY
…........................................................
APPLICANT
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
…..........................................................
FIRST
RESPONDENT
LEPONO
JOSHUA LEKALE N.O
…........................................
SECOND
RESPONDENT
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
obo MEMBERS
…...........................................................
THIRD
RESPONDENT
INDEPENDENT
MUNICIPAL AND ALLIED
TRADE
UNION obo MEMBERS
…..........................................
FOURTH
RESPONDENT
JUDGMENT
JULY
AJ
INTRODUCTION
This is an application
to review and set aside an in limine ruling made by the second
respondent. Although the ruling by the second
respondent is attached
to the papers before this Court, it is not complete. For instance,
it does not have the actual ruling
that was made. However, the
ruling is quoted on page 378 of the paginated bundle as follows:
“
6.1 In
the premises the dispute between the parties was not settled on or
about the 2
nd
August 2006 and still exists;
6.2 The Council shall, therefore,
reschedule the matter for arbitration hearing;
6.3 I make no ruling as to costs.”
In terms of the above
ruling, the second respondent found that the Council has
jurisdiction to arbitrate the dispute referred
to the Council by the
third respondent. It is this ruling that the applicant seeks to be
reviewed and set aside.
The applicant and the
fourth respondent signed a settlement agreement, on 2 August 2006,
the terms of which are replicated
herein below. Although the third
respondent did not sign the settlement agreement it does, however,
consider itself bound by
it.
It is my view that the
settlement agreement signed between the applicant and third
respondent not only settled the disciplinary
hearing, but also put
to rest the dispute about the unilateral change to the terms and
conditions referred by the third respondent.
In the circumstances,
the ruling by the second respondent is reviewed and set aside and is
replaced with the following finding
that the first respondent has no
jurisdiction to hear the dispute. Hereinunder are the full reasons
for my decision.
SUMMARY OF THE FACTS
I do not intend to give
the full details of the history of this matter. Most of the facts
are common cause. The facts are briefly
that the applicant revised a
shift system from 3 shifts to 4 shifts. In January 2006, the
applicant charged employees (members
of the third respondent) who
refused to work according to the new shifts system. On or about May
2006, the third and fourth respondents
referred the dispute as one
of “unilateral change to terms and conditions of employment or
interpretation / application
of collective agreement.”
The dispute remained
unresolved as at 22 June 2006 and a certificate of outcome was
issued. The third and fourth respondents further
referred a dispute
to arbitration.
As stated above, before
the dispute was set down for arbitration on 24 April 2007, the
applicant on the one hand and the third
and fourth respondents on
the other hand signed a settlement agreement. Notwithstanding, that
the third respondent was not a
signatory to the settlement
agreement, it, however, considers itself bound by it. For
completeness sake I quote the full settlement
agreement:
“
IN THE
DISCIPLINARY HEARING
Recordal
It
is recorded that the Municipality has instituted disciplinary
proceedings against several employees who are members of IMATU
and
SMWU as per Annexures "A" and "B".
It
is further recorded that the UNIONS have referred a joint dispute
to the SALGBC of alleged unilateral change to terms and
conditions
of employment or dispute about interpretation/application of a
Collective Agreement under Case Reference Number
FSD 050060.
WHERBY
IT IS AGREED AS FOLLOWS
The
disciplinary hearing against the employees will be suspended with
immediate effect subject to the following conditions:
that
the employees agree and undertake to work in accordance with the 4
shift system with effect from today, the 2
nd
August 2006;
that
the Municipality shall pay a 10% shift allowance based on the
bruto salary of each employee;
that
the Municipality shall pay a night work allowance from the date of
starting to work the 4 shift allowance at a rate to
be determined
at the negotiations that will take place between the date of
signature of this agreement and 1 November 2006;
The
Municipality shall pay overtime in accordance with the existing
Collective Agreement, as well as in accordance with the
Municipality's existing overtime policy.
The
Municipality undertakes to consider any claim for unpaid overtime
submitted to management in the normal course and to pay
any
overtime due within a reasonable time of submission of the claim.
2.3 This agreement shall apply to
all employees within the fire services and employer of Ngwathe Local
Municipality".
It would seem that
before the signing of the settlement agreement, there was a draft
settlement agreement with a clause:
“
2.2 The
Unions together with the employers agree and undertake to withdraw
the dispute referred to the SALGBC under Case Number
FSD 050606
.”
According to the third
respondent, the above clause was deleted in the final settlement
agreement. The third respondent relies
on the deletion of the clause
to drive the point that the settlement was not intended to settle
the dispute referred to the first
respondent.
At the arbitration
hearing scheduled on 24 April 2007, the applicant, relying on the
settlement agreement, raised a point in limine
challenging the
jurisdiction of the first respondent to entertain the dispute which
it considered to have been settled.
The third respondent
opposed the
in limine
jurisdictional point on the basis that
the settlement agreement intended to settle only the disciplinary
hearing and not the
dispute referred to the first respondent. In
support of this agreement, the third respondent relies on clause 2.2
above that
was deleted.
INTERPRETATION OF THE
SETTLEMENT AGREEMENT
It is not in dispute
that the settlement agreement exists. What is in dispute is whether
or not the settlement agreement settled
the dispute that was
referred to the first respondent. It is the third respondent’s
contention that the settlement agreement
was intended to settle the
disciplinary hearing. In other words the settlement agreement did
not intend to settle the dispute
referred to the respondent.
However, this argument is not supported by the provisions of the
settlement agreement. For instance,
the very first clause of the
settlement agreement states that the employees agree to work
according to the 4 shift system with
effect from today, the
2
nd
August 2006. That to me addresses the cause
of the dispute, which is the introduction of the shift unilaterally.
Now
the parties have reached an agreement. It does not really matter
what are the circumstances of the agreement. Further, the fact
that
such an agreement was reached at the disciplinary hearing is
immaterial.
Although the charges
were about insubordination, the parties deemed it necessary to refer
to the shift system that was introduced
by the applicant. The
charges of insubordination were informed by the employees’
refusal to work the 4 shift system. This
situation changed on
2 August 2006 when the parties agreed that the employees
would work according to the 4 shift system.
As a result of this
agreement the disciplinary hearing did not proceed. With regard to
the dispute, the settlement agreement
took care of it. At the time
of referral of the dispute there was no agreement to work the 4
shift system. What is of significance
is that the employees have
accepted the 4 shift system. The dispute therefore becomes academic.
I am not convinced that
the deletion of the original clause 2.2 is a determining factor on
whether or not the parties have settled
the dispute. An undertaking
to withdraw a dispute plays no major role on the resolution of a
dispute. That clause is normally
included to give effect to what
parties had agreed upon. It is not in itself a settlement of the
dispute. Whether the clause
to withdraw a dispute is included or not
does not affect the settlement of a dispute. In other words the fact
that the clause
to withdraw the dispute is not part of the
settlement agreement that in itself does not mean the issue in
dispute has not been
settled. Once the parties have agreed on the 4
shift system that to me indicates the end of the dispute. There is
nothing left
to be resolved. Whether there is a further undertaking
to withdraw the dispute, or not, is irrelevant.
In the circumstances, I
am convinced that the settlement agreement put to rest the dispute
concerning the unilateral change to
the terms and conditions of
employment referred by the third respondent, insofar as this related
to both the disciplinary hearing
and the dispute before the first
respondent.
CONCLUSION
In the premises, the
ruling by Arbitrator Lepono Joshua Lekale is reviewed and set aside
and replaced with a finding that the
first respondent has no
jurisdiction to hear the dispute.
SANDILE JULY
ACTING JUDGE OF THE
LABOUR COURT
Date of application: 15
December 2010
Date
of judgement: 26 May 2011
For
the applicant: Adv. A Mosam
Instructed
by Lebea & Associates
For
the third respondent: Mr. Richard Moultrie
Instructed
by Cheadle Thompson