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[2011] ZALCPE 19
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Kouga Municipality v South African Local Government Bargaining Council and Others (P524/10) [2011] ZALCPE 19; (2012) 33 ILJ 1857 (LC) (2 November 2011)
REPUBLIC OF
SOUTH AFRICA
the labour court of South Africa, port elizabeth
judgment
Reportable
Of interest to other judges
case
no: P 524/10
In the matter between:
KOUGA
MUNICIPALITY
...................................................................
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
.....................................................
First
Respondent
COMMISSIONER
N NQAMANA
....................................
Second
Respondent
SAMWU obo LPR MXUBE
....................................................
Third
Respondent
Heard
:
22
November 2011
Delivered
:
2.
November 2011
Summary: Review: challenge to jurisdiction of
SALGBC to deal with section 57 Municipal Systems Act employees:
Application
Dismissed
judgment
GUSH J
The applicant, a municipality governed by the Municipal Systems Act
1
(the Act), dismissed the third respondent for misconduct. The third
respondent had prior to his dismissal been employed by the
applicant
as the municipal manager in accordance with section 57 of the Act.
The third respondent referred a dispute concerning his dismissal to
the first respondent where it remained unresolved after conciliation.
When the dispute was referred to arbitration, the applicant
challenged the jurisdiction of the first respondent to entertain the
dispute. The second respondent, the commissioner appointed by the
first respondent to consider the matter, after hearing argument
from
the applicant and the third respondent, dismissed the applicants
‘point in
limine
’ relating to the first
respondent’s jurisdiction and ruled that the
‘
the
SALGBC
2
does
have jurisdiction to entertain dispute, including disputes of
municipal managers and all those managers directly accountable
to
municipal managers, employed in terms of s 57 of the municipal
systems act of 2000’
The applicant in this matter applies to review and set aside this
jurisdictional ruling made by the second respondent and to have
it
substituted with an order ‘in terms of which it is determined
that the third respondent member's dispute should be heard
by the
commission for conciliation, mediation and arbitration (CCMA) and not
the first respondent.’
Employers and employees in ‘local government undertakings’
are subject to the provisions of the SALGBC Main Collective
Agreement, which in turn was entered into in accordance with the
SALGBC constitution and the provisions of the Labour Relations
Act
3
.(LRA)
The relevant provisions of the SALGBC Main Collective Agreement
provide:
“
Part
A: APPLICATION:
2. Exclusion from this
agreement.
2.1 Municipal managers and
persons appointed as managers directly accountable to municipal
managers in terms of section 57 of the
municipal systems act, 32 of
2000 shall be excluded from this agreement except for the following
provisions-
2.1.6 Part D, Section 2, where
applicable.”
Part D Section 2 regulates inter
alia:
Conduct of conciliation and
arbitration proceedings before the Council (clause 2)
Conciliation of disputes (clause
s2.10 – 2.16)
Con-Arb in terms of section 191
(5A) of the Act (LRA)
4
(clause 2.17)
Arbitrations (clauses 2.18 –
2.23); and
Rules that apply to
Conciliations, Arbitrations and Con-Arbs.
"Part K: APPLICATION OF
COUNCIL COLLECTIVE AGREEMENTS TO MUNICIPAL MANAGERS AND THOSE
MANAGERS DIRECTLY ACCOUNTABLE TO MUNICIPAL
MANAGERS IN TERMS OF
SECTION 57
OF THE
LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT 32 2000
:
“municipal managers and those managers directly accountable to
municipal managers in terms of
section 57
of the local government:
municipal Systems act 32 of 2000 shall be excluded from all
collective agreements concluded under the
auspices of the Council
unless expressly indicated otherwise of a specific collective
agreement".’
In support of its application to have the award set aside, the
applicant argued that despite the provisions of Part K read with
Part
A of
section 2
and
Part D
,
section 2
of the main collective
agreement, the first respondent does not have the jurisdiction to
consider the matter for the reasons that
the constitution of the
first respondent and in particular clause 13 thereof (which clause
empowers the Council to conduct arbitrations
in respect of disputes
in respect of dismissals) is silent as regards the specific inclusion
of
section 57
managers.
The applicant's argument essentially was that the constitution of the
SALGBC was a collective agreement and therefore the provisions
of
part K should be interpreted to apply to the constitution. As the
constitution did not specifically empower the council to conduct
arbitrations in respect of
section 57
employees and as the dispute
resolution function contained in the main collective agreement arises
from the constitution, the specific
provisions of the main collective
agreement which stipulate that
section 57
managers are not excluded
from the arbitration provisions do not apply.
Apart from the somewhat confused logic in arguing that despite
specifically being included in the arbitration provisions of the
main
collective,
section 57
employees are excluded, the applicant’s
argument is also dependant on the constitution being a collective
agreement.
The LRA defines a 'collective agreement' as follows: ‘a written
agreement concerning terms and conditions of employment or
any other
matter of mutual interest concluded by one or more registered trade
unions, on the one hand and, on the other hand-
(a) one or more employers;
(b) one or more registered employers' organisations; or
(c) one or more employers and one or more registered employers'
organisations;’
The LRA further allows ‘one or more registered trade unions and
one or more registered employers' organisations [to] establish
a
bargaining council for a sector and area by-
(a) Adopting a constitution that meets the requirements of
section
30
; and
(b) Obtaining registration of the bargaining council in terms of
section 29.
’
5
anc" HREF="#sdfootnote5sym">
5
The constitution adopted by the parties pursuant to the establishment
of a bargaining council is not a collective agreement. It
is merely a
means whereby a bargaining council is created and which regulates the
powers which a bargaining council may exercise.
One of the specific powers given to a duly established bargaining
council is the power to conclude collective agreements, which
is
precisely what the first respondent did in concluding the main
collective agreement.
6
The applicant further argued that the test on review in this matter
was not whether the second respondent was correct or not or
whether
result was wrong but whether the second respondent committed a gross
irregularity in the conduct of the arbitration proceedings.
The
applicant argued that the second respondent’s conclusion could
not be said to be a decision that a reasonable decision-maker
could
reach based on the material placed before him.
This is not the test to be applied in matters such as this.Whatever
the merits or demerits of the second respondent’s award
and
ruling on jurisdiction may be, tThe test to be applied by the court
when considering a review of an award concerning the jurisdiction
of
a Bargaining Council or CCMA is not whether the award of the
arbitrator was reasonable, justifiable -– (the reasonable
decision- maker test). The question the court must determine is
simply whether or not on the facts the bargaining council has
jurisdiction.
7
In this matter, the question of jurisdiction is dealt with clearly
and unequivocally in the applicable collective agreement. The
main
collective agreement specifies in the very first section of the
agreement dealing with its application that it shall not apply
to
section 57
employees except for that part of the agreement that
governs the handling of disputes referred to conciliation and
arbitration
by the council.
Even if this was not clear enough, Part K of the main collective
agreement states: ‘municipal managers and those managers
directly accountable to municipal managers in terms of
section 57
of
the
Local Government: Municipal Systems Act 32 of 2000
shall be
excluded from all collective agreements concluded under the auspices
of the Council unless expressly indicated otherwise
of a specific
collective agreement’.
It is clear from the facts that the first respondent has jurisdiction
to deal with disputes involving employees employed by municipalities
in accordance with
section 57
of the Act.
As regards costs given the relationship between the parties viz the
applicant and the third respondent (the union representing
Mr Mxube),
I am of the view that a cost order would not be appropriate.
In the circumstances I make the following order:
The applicant’s application is dismissed;
The first respondent has jurisdiction to arbitrate the dispute;
There is no order as to costs.
_______________________
D H GUSH
Judge
APPEARANCES
APPLICANT: Adv M Grobler
Instructed by van der Walt Attorneys
SECOND RESPONDENT: Adv J Grogan
Instructed by Wheeldon Rushmere and Cole
1
Act
32
of 2000
2
South
African Local Government Bargaining Council
.
3
Act
66 of 1995
4
Labour
Relations Act 66 of 1995
5
Section
27
of the LRA.
6
Section
28
of the LRA.
7
Rugby
Players Association & and Others V SA Rugby (Pty) Ltd & and
Others
(2008) 29 ILJ 2218 (LAC) and
Chabeli
V Commission Ffor Conciliation, Mediation & Arbitration &
and Others
(2010) 31 ILJ 1343 (LC).