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[2012] ZALCJHB 150
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National Education Health & Allied Workers Union v Department of Social Services and Population Development (J265/06) [2012] ZALCJHB 150 (15 March 2012)
3
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Not
Reportable
CASE NO. J265/06
In
the matter between:-
NATIONAL
EDUCATION HEALTH AND ALLIED
WORKERS
UNION
..........................................................................................
Applicant
and
DEPARTMENT
OF SOCIAL SERVICES AND
POPULATION
DEVELOPMENT
..................................................................
Respondent
and
Date
of hearing : 13 December 2011
Date
of Judgment : 15 March 2012
Summary:
Application: Section 158(1) (c)
___________________________________________________________________
JUDGMENT
SESELE
AJ
Introduction
[1] This is the
application to make the arbitration award the Order of Court in terms
of section 158(1)(c) of the Labour Relations
Act (the”Act”)
Background
[2] The applicant had
referred to the Public Service Co-Ordinating Bargaining Council (the
“Council”) the dispute concerning
the interpretation of a
collective agreement (Resolution 8 of 1996 and Resolution 3 of 1999.
The commissioner subsequently issued
the award under case number PSCB
148-04/05 on 30 June 2005.
[3] The material
paragraphs of the award are the following:-
1. Resolutions 8 of 1996
and 3 of 1999 pertaining to the payment of Danger Allowances to
employees employed at places of safety,
is to be interpreted in the
manner set out in paragraph 23 above.
2. …
Paragraph 23 is
formulated as follows:-
Resolution 8 of 1996
(Annexure “G” Bundle “A” page 13) indicates
that an allowance of R200,00 per month
is payable to personnel who
inter alia are physically involved with the safe custody, detention,
training and rehabilitation of
persons in prisons / places of safe
custody and / or physically perform correctional / parole supervision
whose lives are in real
danger in the execution of these tasks. If
the parties intended that only certain categories of employees who
work with or guard
people held in places of safety are to qualify for
a danger allowance, one would have expected the parties to mention
same in their
agreement. Obviously, the gardener who does not work
with or guard juveniles held in places of safety as well as a
receptionist
or typist who does not work with or guard people held in
places of safety, will not qualify for a danger allowance in terms of
the two collective agreements. Employees who, however, work with or
guard people held in places of safety, shall be entitled to
receive a
Standard Danger Allowance.
[4] It appears from the
pleadings filed of record that non-resolution of the dispute
subsequent to the issuing of the award triggered
the present
application.
The
issue
[5] The issue turns on
whether the award issued following the dispute pertaining to the
interpretation of the collective agreements
in question is capable of
being made the order of court in terms of section 158(1)(c).
Submissions
[6] The respondent raised
points in limine pertaining to the section 143 application lodged
with the PSBC and the pending application
for review of, appearing
for the arbitration award under case number JR 339/06. Ms. Galitshona
for the respondent abandoned the
aforesaid points in limine during
the hearing. The said points in limine will accordingly not be dealt
with in this judgement.
[7] The applicant
contends that the CCMA directed that the award be sent to this court
as it could not certify awards which are
not quantified. Clause ix(5)
of the collective agreement lists duties which qualify for the
Standard Danger Allowance as those
“ working with or guarding
convicts, people held in places of safety, or people on parole”.
The arbitrating Commissioner
in his award did not say all employees
in terms of the Child Care Act should be paid a Danger Allowance.
[8] The respondent has to
date failed to comply with the award despite having initially agreed
to do so.
[9] The respondent
contends that the matter which was referred to the council was the
interpretation of the collective agreement.
The Court does not have
the power to make the collective agreement the Order of Court in
terms of section 158(1)(c). The award
further does not direct the
respondent to comply with it.
Analysis
[10] The relevant powers
of this Court are set out in Section 158 which provides as follows:-
[1] The Labour Court
may:-
(c) make any arbitration
award or any settlement agreement, an order of the Court
[11] The commissioner
identifies two categories of employees, namely, those who are
physically involved with the safe custody, detention,
training and
rehabilitation of persons in prisons or places of safe custody and/or
physically performs correctional or parole supervision
whose lives
are in real danger in the execution of their tasks.
[12] This category of
employees is so wide as to include all types of employees who are
directly of indirectly involved in the described
duties.
Receptionist, gardeners and typist could also be included in the
category of employees who are entitled to payment of the
danger
allowance. The commissioner seems to have recognized this difficulty
hence he states
inter alia
in paragraph 23 of the award:-
“
if the parties
intended that only certain categories of employees who work with or
guard people held in places of safety are to
qualify for a danger
allowance, one would have expected parties to mention same in the
agreement
.”
[13] It seems to me the
parties to the collective agreements must express their intention in
clear terms on which category of employees
are indeed entitled to
payment of the danger allowance. As the award stands it is my view
that it is not specific on the type of
employees who are indeed
entitled to payment of the danger allowance. The issue involved in
this matter is such that no order of
costs is justifiable.
Order
I
therefore make the following order:-
The
award is not capable of being made the Order of Court in terms of
Section 158(1)(c) of the Labour Relations Act; and
There
is no cost order.
__________________
SESELE AJ
Appearances:
For the applicant: Mr N
Thaanyane, Thaanyane Attorneys;
For the respondent: Ms K
Gcilitshana, State Attormey