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[2011] ZALCD 4
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Shange v South African Police Services (D835/09) [2011] ZALCD 4 (27 September 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN DURBAN)
CASE NO: D835/09
In the matter between:
S
H SHANGE
…............................................................................
Applicant
and
S A POLICE SERVICE
…................................................
First
Respondent
JUDGMENT
_________________________________________________________
LALLIE AJ
[1] This is an
application against a judgment I gave in favour of the respondent on
15 April 2011.
[2] The applicant lodged
an application for the condonation of the late filing of the notice
for leave of appeal. It was not opposed
by the respondent. The
application is granted because the period of lateness is short and
the applicant has furnished valid explanation
for the lateness.
[3] The events leading to
this application are that on 13 August 2008 the applicant referred a
dispute regarding disclosure of information
and the interpretation
and application of a collective agreement to the Safety and Security
Sectoral Bargaining Council (the SSSBC).
The collective agreement
concerned is Resolution 7 of 2000. It is a collective agreement of
the Public Service Co-ordinating Bargaining
Council (the PSCBC). An
attempt to resolve the dispute through conciliation was unsuccessful
and it was scheduled for arbitration.
[4] The respondent
objected to the SSSBC arbitrating the dispute
on the grounds that it
lacked the necessary jurisdiction. The first ground for objection was
that clause 14 of Resolution 7 of 2000
provides that disputes
pertaining to the application and interpretation of the collective
agreement must be dealt with in accordance
with the dispute
resolution procedure of the PSCBC. The second was that disclosure of
information falls outside the ambit of unfair
labour practice. The
SSSBC issued a ruling on 10 August 2009 that it had the necessary
jurisdiction to arbitrate the dispute.
[5] The respondent lodged
an application at the Labour Court to have the SSSBC ruling reviewed
and set aside. It was opposed by
the applicant. I gave a judgment in
favour of the respondent. The applicant seeks leave to appeal against
that judgment.
[6] The applicant
contends in the application for leave to appeal that the prospects of
success on appeal favour him overwhelmingly
and that another court
would arrive at a different conclusion on the point that the PSCBC
and not the SSSBC has jurisdiction over
the dispute about the
interpretation and application of Resolution 7 of 2000 for the
following reasons:
6.1 Clause 14.1 of
Resolution 7 of 2000 refers to dispute resolution of the PSCBC
Constitution but Clause 1.1 of the PSCBC dispute
resolution
procedures gives powers to Sectoral Councils.
6.2 Clause 5 of the SSSBC
constitution grants it the following
powers and functions:
“
The
powers and function of the Council are to perform those functions set
out in terms of Section 28 of the Act, including to: (a)
negotiate
collective agreements on matters of mutual interest; (b) implement,
monitor and enforce its collective agreements; (c)
implement, monitor
those collective agreements that have been concluded in the PSCBC;
(d) prevent and resolve labour disputes;
etc …”
Clause 5(c) of the
SSSBC constitution gives it exclusive
jurisdiction in the
dispute.
6.4 Clause 1.5 of the
PSCBC dispute resolution procedure which provides as follows should
have been applied:
“
If
there is jurisdictional dispute between the Council and Sectoral
Council as to whether these procedures or the Sectoral Council’s
procedures apply, any party to the dispute may refer the dispute to
the CCMA in terms of Section 38 of the Act for conciliation
and
arbitration.”
In terms of
Section 127
of the
Labour Relations Act 66 of 1995
(the Act), the only forum
that may claim jurisdiction over any dispute is the CCMA, because it
is the CCMA alone that accredits
bargaining councils and allow them
to perform all dispute resolution functions.
6.6 The Court should have
considered that the dispute and interpretation in question affected
the Safety and Security sector only
and not the Public sector as a
whole and that the dispute fell within the registered scope of the
SSSBC.
The website of the
PSCBC provides as follows:
“
The
PSCBC (Public Service Co-Ordinating Bargaining Council) deals with
disputes of all Public Service employees.
If
the dispute is about the interpretation or
application
of a PSCBC Resolution, or if the dispute is
about
an issue that affects more than 1 sector, PSCBC may not deal with a
dispute if there is a Sector
Bargaining Council
that has jurisdiction.”
[7] The respondent
opposed the application for leave to appeal mainly on the grounds
that my judgement was correct. The other grounds
are that
Section 38
of the LRA is of no relevance as the dispute did not involve 2
bargaining Councils. It was further argued on behalf of the
respondent
that after the arbitrator had taken the decision that the
SSSBC had jurisdiction to determine the dispute, its decision could
not
be challenged at the CCMA but at the labour Court. The respondent
found the applicant’s submissions based on the PSCBC website
misplaced.
[8] It is trite that the
test for leave to appeal is that there must be a reasonable
possibility that another court might come to
a different conclusion
than the one reached by the court a quo. In
Strategic Liquor
Services v Mvumbi NO & others
[2009] 9 BLLR 847
(CC) the
court found that for leave to appeal to be granted there must be
prospects of success on appeal. See also
General Domestic and
Professional Employers Organisation v Registrar of Labour Relations
[2011] 4 BLLR 352
(LC). The decision appealed against must be
susceptible to criticism and incorrect. See
Zwane v Alert Fencing
Contractors CC
[2011] 2 BLLR 109
(CC).
[9] The applicant
conceded that clause 14.1 of Resolution 7 of 2000 provides that
disputes about its interpretation or application
shall be dealt with
according to the dispute resolution process of the PSCBC. He however
argues that clause 1.1 of the PSCBC constitution
passes that power to
Sectoral Councils. This argument is incorrect. Clause 1.1 of the
constitution of the PSCBC which deals with
the dispute resolution
procedures of the council provides as follows:
“
Sectoral
Councils may use these procedures to establish their own procedures.
The procedures may be amended in accordance with the
needs of that
particular council”.
[10] What clause 1.1 does
is to grant Sectoral Councils permission to copy the dispute
resolution procedures of the PSCBC when establishing
their own. It
further grants Sectoral Councils permission to amend the PSCB dispute
resolution procedures to suit their needs.
Clause 1.1 merely gives
Sectoral Councils guidance on how to establish their own dispute
resolution procedures. It is silent on
passing the PSCBC dispute
resolution powers to Sectoral Councils and does not grant Sectoral
Councils jurisdiction to entertain
disputes about the interpretation
and application of Resolution 7 of 2000.
[11] The applicant’s
argument that the relationship between the constitution of the PSCBC
and that of the SSSBC regarding
dispute resolution and clause 5 of
the SSSBC constitution grant the SSSBC jurisdiction over disputes
about the interpretation and
application of Resolution 7 of 2000 is
incorrect. Clause 5 of the constitution of the SSSBC deals with
powers and functions of
the SSSBC. It re-affirms the powers of the
SSSBC stipulated in
Section 28
of the LRA which provides in clear
language the powers and functions of Sectoral Councils. It excludes
the power over and the function
of entertaining disputes about
interpretation and application of PSCBC collective agreements.
[12] The applicant
provided no basis for the argument that the dispute and
interpretation in question affected the Safety and Security
Sector
only and fell within the registered scope of the SSSBC giving the
SSSBC jurisdiction over the dispute regarding the interpretation
and
application of Resolution 7 of 2000. This argument cannot be correct
because the interpretation of Resolution 7 of 2000 does
not affect
only the Safety and Security Sector.
[13] The applicant’s
argument that in terms of
Section 127
of the LRA, the CCMA is the
only forum with jurisdiction because it accredits bargaining councils
and allow them to perform all
dispute resolution functions is
inconsistent with his argument that the SSSBC has jurisdiction over
disputes concerning the interpretation
and application of Resolution
7 of 2000.
Section 127
of the LRA is of no relevance in disputes
involving the interpretation and application of collective
agreements.
[14] The information on
the PSCBC website which the applicant seeks to rely on in proving
that the SSSBC has jurisdiction over the
dispute that was before the
arbitrator does not constitute authority. Authority on which forum
has jurisdiction over the interpretation
and application of
Resolution 7 of 2000 is contained in the collective agreement itself
read with
section 24
of the LRA. Even the information on the website
states that the PCSBC will not have jurisdiction over disputes about
the interpretation
and application of a PSCBC Resolution if there is
a Sector Bargaining Council that has jurisdiction. The applicant has
failed to
provide the correct basis for claiming that the SSSBC has
the necessary jurisdiction.
[15] It is true that the
footnotes on page 74 of the SSSBC constitution state that the SSSBC
has jurisdiction over disputes referred
to in
Section 24(1)
of the
LRA.
Section 24(1)
of the LRA provides that a dispute about the
interpretation or application of a collective agreement must be
resolved in terms
of the conflict resolution clause of that
collective agreement. The footnotes therefore do not detract from the
version that the
PSCBC has jurisdiction over the dispute before the
arbitrator as its conflict resolution clause provides that conflict
arising
from the interpretation and application of Resolution 7 of
2000 must be resolved in terms of the PSCBC conflict resolution
procedure.
[16] The applicant argued
that the CCMA has jurisdiction over the dispute that was before the
arbitrator on the grounds that
Section 38
of the LRA provides that if
there is a jurisdictional dispute between the Council and a Sectoral
Council as to whether these procedures
or the Sectoral Council’s
procedures apply, any party to the dispute may refer the dispute to
the CCMA. The dispute falls
outside the ambit of
section 38
of the
LRA because it is not a jurisdictional dispute between bargaining
councils.
[17] For these reasons
the applicant has no reasonable prospects of success on appeal.
[18] The application for
leave to appeal is therefore dismissed with costs.
__________
LALLIE AJ
Date of judgement: 27
September 2011
For the Applicant: Adv SR
Mthombeni
Instructed by: S F
Mkwanazi & Associates
For the Respondents: Adv
LR Naidoo
Instructed by: The State
Attorney