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[2011] ZALCCT 72
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HOSPERSA and Others v MEC For Health Western Cape and Others (C37/2011) [2011] ZALCCT 72 (9 February 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
NOT
REPORTABLE
OF INTEREST TO OTHER JUDGES
CASE
NO: C 37 / 2011
In
the matter between
HOSPERSA FIRST
APPLICANT
WINSTON
ANDREWS SECOND
APPLICANT
ANTON
HOCHER THIRD
APPLICANT
AND
MEC
FOR HEALTH: WESTERN
CAPE FIRST
RESPONDENT
DEPARTMENT
OF HEALTH: WESTERN CAPE SECOND
RESPONDENT
THE
PUBLIC HEALTH & WELFARE
SECTORAL
BARGAINING
COUNCIL THIRD
RESPONDENT
JUDGMENT
STEENKAMP
J:
Introduction
[1]
This is an urgent application for an
interdict pending the resolution of a dispute between the parties at
the Public Health and
Welfare Sectoral Bargaining Council (the third
respondent, to which I shall refer as “the bargaining
council”).
[2]
By agreement between the parties, the
application under this case number has been consolidated with a
similar application set down
for today under case number C 38 / 2011.
The second applicant in that matter, Anton Hocher, is now the third
applicant under this
case number. The second applicant is Winston
Trevor Andrews. Both Andrews and Hocher are members of the Health and
Other Services
Personnel Union of South Africa (HOSPERSA), the first
applicant, and employees of the Department of Health, Western Cape
(the second
respondent).
[3]
The applicants seek an order pending the
resolution of a dispute that has been referred to the bargaining
council concerning the
interpretation and application of a collective
agreement concluded in the Public Service Coordinating Bargaining
Council and in
the Health and Welfare Sectoral Bargaining Council and
embodied in its Resolution 1 of 2003, that:
3.1
The first and second respondents are
interdicted and restrained from giving effect to the demand issued by
them that the second
and third applicants return to their workplace
forthwith.
3.2
The first and second respondents are
interdicted and restrained from taking any steps to treat the second
and third applicants’
absence from their workplace as
unauthorised absence.
3.3
The first and second respondents are
ordered to treat the second and third applicants in all aspects as
persons who have been duly
seconded by it to first applicant as
full-time shop stewards for the period 1 January 2011 to 31 December
2011.
BACKGROUND TO THE
APPLICATION
[4]
Hospersa has nominated both Andrews and
Hocher to serve as full-time shop stewards for the year 1 January
2011 to 31 December 2011.
The arrangement in terms of which the
employer releases an employee to serve as a full-time shop steward of
the union, while the
employer continues to pay him or her, is
governed by a collective agreement reached in the bargaining council
and embodied in resolution
1 of 2003.
[5]
The relevant provisions of the resolution
are the following:
“
3.1
Eligibility
for appointment as a FTSS
[1]
In order to be appointed
as a FTSS a person must:
3.1.1
be a permanent employee in the public health and welfare sector and
have been nominated
by the trade union;
3.1.2
be a member in good standing of the trade union making the
nomination; and
3.1.3
not hold a critical or managerial (including junior, middle and
senior management level)
post at the workplace or been employed at a
level higher than level 8. In determining whether a person is
critical the following
criteria should be considered:
3.1.3.1
the type of service provided;
3.1.3.2
the nature of work performed by the employee;
3.1.3.2
the current and expected allocation of resources; and
3.1.3.4
the non-availability of similar skills to replace the employee.
3.1.4
The limitations stipulated in clause 3.1.3 above may be lifted in
exceptional circumstances
by agreement of the respective trade union
and the employer, represented by the head of the department. In
considering whether
an exception ought to be made, the parties may
take into account the following:
3.1.4.1 the burden and
complexity of labour relations work required to be performed by the
FTSS;
3.1.4.2
the nature and type of negotiations at the FTSS will be involved in;
3.1.4.3
the nature and number of disputes that may arise.”
and
“
3.3
Notification of the elected FTSS
3.3.1
Once the trade union parties have nominated and elected their FTSS,
the trade unions must notify the respective
departments in writing of
the names of the employees who have been elected as FTSS. A copy of
this notification shall be sent to
the Council.
3.3.2
the relevant department may be allowed a maximum of 30 days for the
executing authority or his/her delegate
to release the FTSS subject
to an extension of a further 30 days by agreement of the parties.”
“
3.4
Appointment of the FTSS
3.4.1
Once the respective departments have received the notification, the
appointment of the
FTSS will be duly confirmed.
3.4.2
Such appointment will be by way of a secondment to their respective
trade union.”
“
3.5
Period of appointment
3.5.1
The FTSS is appointed for the period of one year and may be
re-elected and accordingly the FTSS’s
secondment may be
extended.
3.5.3
The FTSS may be appointed to this position for a period of three
years but will be seconded by the employer
to the trade union for one
calendar year reviewed annually by both parties, commencing 1 January
and ending 31 December. In the
event that the agreement is
implemented during the course of the year, the FTSS will be released
to commence with his/her activities
for the remainder of the year."
[6]
Both applicants – Andrews and Hocher
– have been acting as full-time shop stewards during 2009 and
2010. When Hospersa
notified the Department of Health (the second
respondent) that it wished to extend their secondment for the 2011
calendar year,
the Department refused.
[7]
In the case of Andrews, Hospersa notified
the MEC and the Head of the Department of Health on 1 December 2010
that, in terms of
clause 3.3.1, they had nominated and elected him to
serve as FTSS from 1 January to 31 December 2011 and wished him to be
seconded.
On 29 December 2010, the Head of the Department responded
in the following terms:
“
Your
request for the release of Mr Andrews to serve as FTSS from 1 January
2011 to 31 December 2011, refers.
The
Department did consider your request, as well as the service delivery
needs of the department. After careful consideration,
the Department
of Health cannot approve your request to release Mr Andrews for
another term due to the following reasons:
·
The Occupational Therapy Unit is working
with one less member for the past two years. The strain an extra
workload on the Department
is negatively influencing service
delivery.
·
The Occupational Therapy Unit is expanding
its services due to the needs of patients and we need Mr Andrews back
to assist the Department
to reach its objectives.
Given the reasons above
is it [
sic
] not possible to release Mr Andrews for another
year and we appreciate your understanding in this regard. You come to
make another
nomination to the department for consideration.
Mr
Andrews must return to his post he occupied prior to his release as
FTSS at Alexandra Hospital by not later than 3 January 2011."
[8]
In the case of Mr Hocher, Hospersa sent a
similar letter to the MEC and the Head of Department on 1 December
2010. In an undated
response and received on 29 December 2010, the
head of Department also refused to release him due to the additional
workload on
other staff members. The head of department notified
Hospersa that Hocher had to return to this post at Groote Schuur
Hospital
by 1 January 2011 and that, if he did not do so, his
absenteeism "will be regarded as unauthorised absenteeism which
will
result in no work no pay. If absenteeism continues, the relevant
prescripts will apply."
[9]
Hospersa referred a dispute to the
bargaining council about the interpretation and application of the
collective agreement embodied
in Resolution 1 of 2003 as long ago as
1 February 2010. The dispute concerns the parties' different views as
to whether the Department
has a discretion whether or not to release
a full-time shop steward who has been duly nominated and elected by
the trade union.
The question of a discretion arises on two levels:
firstly, whether the Department has a discretion to refuse such a
nomination;
and secondly, whether it can do so unilaterally based on
the criteria set out in clause 3.1.3.
[10]
Although that dispute was conciliated in
April 2010, it has not been arbitrated. It was set down for
arbitration in June 2010, but
the Department raised a point
in
limine
that was dismissed. It was set
down again in November 2010, but it was postponed by agreement
between the parties, and subsequent
events have now intervened.
[11]
Pending the resolution of that dispute, the
applicants seek an order enabling the two full-time shop stewards to
remain in their
seconded positions rather than returning to their
workplaces at Alexandria and Groote Schuur hospitals respectively.
URGENCY
[12]
Ms
Golden
,
who appeared for the first and second respondents, submitted that the
application is not urgent.
[13]
This court has, in the past, reminded
litigants that urgency is not that there for the taking. Rule 8 of
the Rules of the Labour
Court expressly states that a party that
applies for urgent relief must file an application that complies with
the requirements
of rule 7(1), 7(2), 7(3) and, if applicable, 7(7).
And rule 7(2) expressly requires that the affidavit in support of the
application
must contain the following:
(a)
the reasons for urgency and why urgent
relief is necessary;
(b)
the reasons why the requirements of the
rules were not complied with, if that is the case; and
(c)
if a party brings an application in a
shorter period than that provided for in terms of section 68 (2) of
the LRA, the party must
provide reasons why a shorter period of
notice should be permitted.
[14]
In
NUM
v Black Mountain,
[2]
Basson J stated that urgency in itself does not relieve a party from
this obligation and the applicant should, in as much detail
as
possible, placed such facts that are necessary before the court and
which will enable this court to decide whether the forms
of service
provided for in the rules should be dispensed with.
[15]
In the present case, the deponents to the
founding affidavits dealt fairly comprehensively with the
requirements for an interim
interdict. The same cannot be said for
the requirement of urgency. That is dealt with in a rather cursory
fashion. However, the
reasons for urgency are addressed. The
applicants explained that the Department only made its stance –
i.e. that the employees
to return to their workplaces despite the
ending dispute - clear in January 2011, when it stated that the
Department could not
agree to the union’s request. Until such
time as the applicants launched this application on 20 January 2011,
they believed
that an interim arrangement could be reached by
agreement.
[16]
The explanation is far from comprehensive
and is open to criticism, but I am satisfied that the applicants
have, at a minimum, explained
the reasons for urgency and why urgent
relief is necessary. I will therefore proceed to deal with the merits
of the application.
THE NATURE OF THE
RELIEF SOUGHT
[17]
The
applicants do not seek a rule
nisi
.
Ms
Golden
has
argued that the relief they seek is final in nature. But although it
is not couched in the form of a rule
nisi
,
the relief sought is still interim in nature. What they seek is, in
essence, an interdict
pendent
lite.
They
seek interim relief pending, not a dispute before this court, but
before the bargaining council. The requirements for an interim
interdict are therefore still applicable.
[3]
PRIMA
FACIE
RIGHT?
[18]
Have the applicants made out a
prima
facie
right, though open to some doubt?
This depends to a large extent upon the interpretation of clause 3 of
the collective agreement
– the dispute that the bargaining
council has to pronounce on. The applicants say that they qualify for
appointment as full-time
shop stewards and have been duly elected.
The respondents say that the Department is vested with a discretion
whether or not to
release the applicants; and that they occupy
critical posts.
[19]
The dispute about the interpretation of
clause 3.1.3 is an abject lesson in the dangers of drafting
agreements in the passive voice.
It states that, "in determining
whether a person is critical the following criteria should be
considered", and then the
criteria are listed. What it does not
say, is who should consider those criteria. Had it been drafted in
the active voice, this
problem of interpretation would not have
arisen.
[20]
Be that as it may, this is a dispute that
the bargaining council will have to grapple with. In the interim, the
question before
me is whether the applicants have established at
least a
prima facie
right to remain in their seconded positions as full-time shop
stewards pending the resolution of the main dispute.
[21]
It is common cause that the two applicants
qualify with regard to three criteria – that is, they are
permanent employees in
the public health and welfare sector and have
been nominated by the union; they are members in good standing of the
union; and
they are not employed at a level higher than post level 8.
What is in dispute, is whether they occupy critical posts.
[22]
Andrews is employed as an occupational
therapy assistant. It is disputed whether this at post level 4 or 5,
but it is in any event
a low-ranking post. The Department states that
it has been working without him for the past two years. The strain
and extra workload
on the Department is negatively influencing
service delivery. The occupational therapy unit is also expanding its
services and
Andrews is required to assist it.
[23]
These statements do not, in my view,
establish that Andrews fulfils a critical post. The mere fact that
the OT Unit has managed
without him for two years, points to the
contrary. There can be no doubt that his absence does lead to an
extra workload for the
remaining personnel in that unit; but they
have managed to cope and should be able to do so for another
relatively short while,
pending the resolution of the dispute before
the bargaining council.
[24]
In the case of Hocher, he is employed as a
"senior administration officer" in the support services
department of Groote
Schuur hospital. He works in the component of
environment and hygiene services. The other SAO in that component
retired recently.
The component is responsible for waste management,
portering, hospital transport, the external environment –
comprising the
hospital grounds, gardens and buildings – and
what is euphemistically known as "death management".
[25]
Hocher is, despite the impressive sounding
title, a relatively low-level employee. As is the case with Andrews,
the Department has
managed without him for more than a year. This
has, no doubt, led to inconvenience and will continue to do so
pending the resolution
of the main dispute. In my view, though, the
Department has not shown that it is a critical post and I am
satisfied that the applicants
have established at least a
prima
facie
right.
APPREHENSION OF
IRREPARABLE HARM
[26]
Should the employees be forced to return to
their workplaces pending the resolution of the main dispute, the
trade union will be
deprived of the expertise that they have built up
over the past two years. If the arbitrator at the bargaining council
decides
the dispute in their favour, they may take up the secondment
again; but by that time, the harm would have been done. They have set
out in the founding affidavits that they are dealing with a number of
current disputes and that it would lead to delays and the
absence of
competent representation for their members.
BALANCE OF CONVENIENCE
[27]
If I were to grant the interim relief
sought, the Department will be inconvenienced. Should I not do so,
the trade union will be
inconvenienced.
[28]
In my view, the inconvenience to the trade
union outweighs that of the Department. The two full-time shop
stewards have been operating
as such for some time and have acquired
valuable expertise and experience. Hospersa represents some 80 000
members, and the Western
Cape has the third highest number of its
members employed in the public sector. The union will be severely
hamstrung by the loss
of two of its full-time shop stewards in
circumstances where their appointment is in dispute.
[29]
There is no doubt that the Department is
suffering great inconvenience. It cannot be easy for any employer to
do without the services
of an employee that it is paying while that
employee provides services to its collective bargaining partner. In
the case of state
hospitals that face daily budgetary constraints
this must be even more so. But as I have pointed out, the Department
has managed
without these two employees for more than a year; it is
not inconceivable that they can do so for a further period of time.
[30]
In any event, there is no reason why the
underlying dispute cannot be resolved speedily. That is the very aim
of the dispute resolution
system set up by the Labour Relations Act
and administered by the CCMA and bargaining councils. The council is
a party to these
proceedings. I intend to make an order that will
compel it to deal with the underlying dispute expeditiously.
ALTERNATIVE REMEDY
[31]
The only other remedy for the applicants is
the one that there are already pursuing, i.e. the referral of a
dispute about the interpretation
and application of the collective
agreement to the bargaining council. Pending the resolution of that
dispute, they have no other
remedy.
CONCLUSION
[32]
I am satisfied that the applicants have
made out a case for the interim relief sought. The inconvenience to
the respondents can
be addressed by the proper and expeditious
resolution of the underlying dispute by the bargaining council,
provided the parties
to the dispute assist it by proceeding to argue
the merits of the dispute without further delay.
[33]
With regard to costs, I take into account
that Hospersa and the Department of Health have an ongoing
relationship. Furthermore,
both the individual applicants are still
employed by the Department. The parties have to resolve the
underlying dispute as soon
as possible. An adverse costs order could
have a chilling effect on that process.
ORDER
[34]
Pending the resolution of a dispute that
has been referred to the Bargaining Council concerning the
interpretation and application
of the collective agreements concluded
in the Public Service Coordinating Bargaining Council and in the
Health and Welfare Sectoral
Bargaining Council recorded in its
Resolution 1 of 2003:
34.1
The first and second respondents are
interdicted and restrained from giving effect to the demand issued by
them that the second
and third applicants return to their workplace
forthwith.
34.2
The first and second respondents are
interdicted and restrained from taking any steps to treat the second
and third applicants’
absence from their workplace as
unauthorised absence.
34.3
The first and second respondents are
ordered to treat the second and third applicants in all respects as
persons who have been duly
seconded by it to first applicant as
full-time shop stewards for the period 1 January 2011 to 31 December
2011.
[35]
The third respondent – i.e. the
Bargaining Council – is ordered to set the dispute under case
number PSHS 761-09/10
down for arbitration by no later than 14 March
2011 and to issue its award within 14 days of the conclusion of the
arbitration.
[36]
There is no order as to costs.
______________________________
STEENKAMP
J
Date
of hearing:
4 February 2011
Date
of judgment:
9
February 2011
For
the applicants:
Adv
RJ Seggie SC
Instructed
by
Llewellyn Cain, Pietermaritzburg
For
the respondent:
Adv
T Golden
Instructed
by
The state attorney, Cape Town
[1]
Full-time shop steward
[2]
(2007) 28
ILJ
2796 (LC) para [13]
[3]
As set out, for example, in
Setlogelo
v Setlogelo
1914 AD 221
at 227 and followed in countless cases thereafter.