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[2011] ZALCCT 13
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Parliament of the Republic of South Africa v NEHAWU obo Others (C 175/10) [2011] ZALCCT 13; [2011] 9 BLLR 905 (LC); (2011) 32 ILJ 2534 (LC) (26 May 2011)
Reportable
Of interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C 175/10
IN THE MATTER BETWEEN:
PARLIAMENT
OF THE REPUBLIC OF SOUTH AFRICA
….........
APPLICANT
AND
NEHAWU
OBO 3 MEMBERS
…....................................
FIRST RESPONDENT
CCMA
…....................................................................
SECOND
RESPONDENT
HILARY
MOFSOWITZ N.O.
….......................................
THIRD
RESPONDENT
judgment
STEENKAMP J:
Introduction
This is an application to review and set aside a jurisdictional
ruling by the arbitrator, Ms Hilary Mofsowitz (the third respondent)
under the auspices of the second respondent, the Commission for
Conciliation, Mediation and Arbitration (the CCMA).
The crisp issue to be decided by the arbitrator was whether the
cause of action of the first respondent
1
– the National Education, Health and Allied Workers’
Union (Nehawu), acting on behalf of three of its members –
was
a dispute about an alleged unilateral change to terms and conditions
of employment or an alleged unfair labour practice in
relation to
demotion.
The significance of this distinction is that Nehawu’s members
(the three individual respondents, to whom I shall refer
as “the
employees”) are employed by the Parliament of the Republic of
South Africa (the applicant in the review application),
and are
designated as fulfilling essential services in terms of s 71 of the
LRA.
2
This has the further implication that they cannot strike over
matters of mutual interest (such as an alleged unilateral change
to
terms and conditions of employment) in terms of s 64 of the LRA.
Such disputes are governed by s 74 of the LRA. The employees
or
their trade union (Nehawu) may refer a dispute to the CCMA for
conciliation, but if it remains unresolved, they can only request
that it be resolved through arbitration – they cannot strike.
In the arbitration proceedings forming the subject of this review
application, Nehawu and its members referred a dispute over
an
alleged unilateral change to terms and conditions of employment to
the CCMA in terms of s 74. Parliament argued that the real
dispute
concerned an alleged unfair labour practice in the form of a
demotion, as envisaged by s 186(2)(a). If this is so, the
referral
was late; the union did not apply for condonation; and hence the
CCMA did not have jurisdiction.
Background facts
The employees were employed in the post of Controller: Committee
Secretaries at post level C3. During 2008 Parliament embarked
on a
restructuring exercise, culminating in a decision to phase out the
position of Control: Committee Secretary. The three employees
remained on grade C3 but were henceforth employed in the position of
Committee Secretaries.
Nehawu, on behalf of the three employees, referred a dispute to the
CCMA under the heading of “unilateral change to terms
and
conditions of employment”. Under the heading, “Special
features / additional information” in the form for
referral to
conciliation
3
they noted:
“
Re-instatement
of positions as proposed in a Nehawu document to bring fairness.
Upgrading of the positions and appropriate remuneration.”
The dispute remained unresolved and the union referred it to
arbitration in terms of s 74. In the request for arbitration
4
,
under the heading: “What decision would you like the
commissioner to make?” it indicated:
“
1.
Reinstatement to former position of controllers.
2. Incumbents to be moved from
salary grade C3 to C5 level retrospectively.”
At the arbitration, Parliament’s representative raised a point
in limine
that the CCMA did not have jurisdiction.
The arbitrator ruled that the dispute concerned an alleged
unilateral change to terms and conditions of employment; that she
did have jurisdiction; and that the matter should be enrolled for
arbitration on the merits.
The award
The reasons given by the arbitrator for her decision are very scant.
Her entire analysis of the argument reads as follows:
“
13. I
am persuaded that Applicants are the masters of their suit.
14. I consider the certificate
to be valid and binding.
15. Applicants have referred an
interest dispute and wish to proceed on that basis. Respondent is not
prejudiced as it was aware
at all material times of the nature of the
dispute.
16. The dispute must be enrolled
for arbitration. The dispute to be arbitrated concerns the alleged
unilateral change to terms and
conditions of employment. The
arbitrating commissioner will decide on the merits of the dispute.
17. I cannot find any compelling
reason to interfere in Applicants’ categorization of the
dispute despite the Respondent’s
arguments in this regard.”
Grounds of review
The applicant (Parliament) submits that the arbitrator failed to
determine the true nature or substance of the dispute before
her.
This failure was so unreasonable as to make it reviewable. Her
conclusion based on that determination, it submits, was so
unreasonable that no reasonable decision-maker could have arrived at
it.
Determining the jurisdiction of the CCMA
CCMA commissioners are duty bound to satisfy themselves that the
requisite jurisdictional facts conferring jurisdiction on the
CCMA
exist. In assessing whether the CCMA has jurisdiction to entertain a
dispute, the commissioner must determine what the true
nature of the
dispute is.
In
Zeuna-Stärker Bop (Pty) Ltd v NUMSA
5
Myburgh JP held that:
“
The
commissioner was obliged to enquire into the facts to decide whether
he had jurisdiction to conciliate the dispute. He was not
bound by
the description, and date, of the dispute provided by the respondent
in form LRA 7.11. Rather, the commissioner was obliged
to examine all
the facts in order to ascertain the real dispute between the parties
... and having done so, to determine the actual
dispute and the date
that that dispute arose.”
In the absence of any relevant and prior jurisdictional ruling made
by a conciliating commissioner, any party to a dispute referred
to
arbitration may raise any challenge to the CCMA’s jurisdiction
at that stage, and the challenge must be dealt with by
the
arbitrating commissioner in terms of section 138(1).
6
A jurisdictional ruling is subject to review by the Labour Court on
objectively justiciable grounds. In other words, if the commissioner
incorrectly concludes that the CCMA has jurisdiction, the ruling
will be set aside on this basis alone.
7
The Labour Appeal Court explained the position as follows in
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd
:
8
“
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court. In
Benicon
Earthworks & Mining Services (Pty) Ltd v Jacobs NO & others
(1994) 15
ILJ
801 (LAC)2 at 804C–D, the old Labour Appeal Court considered
the position in relation to the Industrial Court established
in terms
of the predecessor to the current Act. The court held that the
validity of the proceedings before the Industrial Court
is not
dependent upon any finding which the Industrial Court may make with
regard to jurisdictional facts, but upon their objective
existence.
The court further held that any conclusion to which the Industrial
Court arrived at on the issue has no legal significance.
This means
that, in the context of this case, the CCMA may not grant itself
jurisdiction which it does not have. Nor may it deprive
itself of
jurisdiction by making a wrong finding that it lacks jurisdiction
which it actually has jurisdiction. There is, however,
nothing wrong
with the CCMA enquiring whether it has jurisdiction in a particular
matter, provided it is understood that it does
so for purposes of
convenience and not because its decision on such an issue is binding
in law on the parties. In
Benicon
’s
case, the court said:
“
In
practice, however, an Industrial Court would be short-sighted if it
made no such enquiry before embarking upon its task. Just
as it would
be foolhardy to embark upon proceedings which are bound to be
fruitless, so too would it be faint-hearted to abort
the proceedings
because of a jurisdictional challenge which is clearly without
merit.” (At 804C–D.)
In my view, the same approach is
applicable to the CCMA.
The question before the court a
quo was whether, on the facts of the case, a dismissal had taken
place. The question was not whether
the finding of the commissioner
that there had been a dismissal of the three players was justifiable,
rational or reasonable. The
issue was simply whether, objectively
speaking, the facts which would give the CCMA jurisdiction to
entertain the dispute existed.
If such facts did not exist, the CCMA
had no jurisdiction irrespective of its finding to the contrary.”
The true nature of the dispute
I am persuaded that the dispute concerns an alleged failure to
promote and not a unilateral change to terms and conditions of
employment.
This is apparent from the following:
It is clear from the initial written complaints raised by the
employees that their concern was that their posts had not been
regraded in the course of the restructuring of the applicant’s
committee section whereas the position of committee secretary
had
been graded up two notches from level C1 to C3. The employees did
not complain that their job had been changed. They framed
their
complaint as follows in their letter of 13 March 2009 to the Labour
Relations Unit of Parliament:
“
A
month ago Committee Section implemented new salary grading for some
levels in the section, and the level we serve as [sic] was
deliberately excluded, ostensibly because the level is allegedly
being phased out. Strangely though, the incumbents continue to
be
expected to execute the responsibilities of the same level.”
At a meeting held to discuss the employees’ concerns on 28
April 2009, the employees repeatedly emphasised that it would
be
“unfair” for them “to go back to being committee
secretaries” , since this would amount to a “demotion
of some sort”.
In the employees’ referral of their dispute to the CCMA, the
relief sought included “upgrading of their positions
and
appropriate remuneration”.
The true nature of the dispute also apparent from the
pre-arbitration minute, which sets out the relief sought in the
following
terms:
“
The
relief that the applicant’s members claim is their promotion
from the Grade C3 to the Grade C5 and remuneration appropriate
for
Grade C5.”
The employees have at all material times been employed at Grade C3.
It is clear that they are disgruntled that they were not
promoted to
Grade C5 pursuant to the restructuring of the applicant’s
committee section.
If the dispute were really about a change to their terms and
conditions of employment, the employees would have sought a
restitution
of the
status quo ante,
not a two-notch jump in
pay upgrade.
It seems clear to me that the true nature of the dispute is an
alleged unfair labour practice and not an alleged unilateral change
to terms and conditions of employment. The CCMA accordingly did not
have jurisdiction to arbitrate the dispute under section
74 of the
LRA.
Costs
There is not only an ongoing relationship, but also an ongoing
dispute between the parties. In law in fairness, I do not consider
any costs order to be appropriate at this stage.
Order
The
in limine
ruling of teh third respondent dated 10
February 2010 under case number WECT 10945-09 is reviewed and set
aside.
The ruling is substituted with a ruling that the CCMA (the second
respondent) does not have jurisdiction to arbitrate the dispute
referred under case number WECT 10945-09.
There is no order as to costs.
_______________________
STEENKAMP J
Date of hearing:
19 May 2011
Date of judgment:
26 May 2011
For the applicants:
Adv GA Leslie
Instructed by Chennels Albertyn
For the respondent:
Mr N Thaanyane
1
The
applicant before the CCMA.
2
The
Labour Relations Act, Act 66 of
1995.
3
Form
7.11.
4
Form
7.13.
5
(1999)
20
ILJ
108
(LAC) 109J – 110C;
[1998] 11 BLLR 110
(LAC).
6
Bombardier
Transportation (Pty) Ltd v Mtiya NO & others
[2010] 8 BLLR
840
(LC) para [16.6].
7
Zeuna-Stärker
(supra)
para [6];
8
(2008)
29
ILJ
2218
(LAC)
[2008] ZALAC 3
; ;
[2008] 9 BLLR 845
(LAC) para [40] – [41].