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[2013] ZALCCT 6
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PSA obo Strauss and Others v Department of Public Works NO and Others (C 381/12) [2013] ZALCCT 6; [2013] 7 BLLR 710 (LC); (2013) 34 ILJ 2929 (LC) (20 March 2013)
Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
case
no: C 381/12
In the matter between:
PSA obo STRAUSS & 7 others
Applicant
and
MINISTER OF PUBLIC WORKS N.O.
First Respondent
GPSSBC
Second Respondent
I DE VLIEGER-STEYNHAVE N.O.
Third Respondent
Heard
:
21 February 2013
Delivered
:
20 March 2013
Summary:
Jurisdiction of bargaining council – fairness
of collective agreement.
JUDGMENT
STEENKAMP J:
Introduction
Does a bargaining council have jurisdiction to decide on the
fairness of a collective agreement?
This dispute arose in the context of a collective agreement styled
as an Occupation Specific Dispensation for engineers. That
collective agreement was embodied in a resolution, Resolution No 2
of 2009 (“the Resolution”). The applicants, represented
by their trade union, the Public Servants Association of South
Africa (the PSA) referred a dispute to the second respondent,
the
General Public Service Sectoral Bargaining Council (GPSSBC or “the
bargaining council”). The issue in dispute
was described as
whether the applicants were unfairly demoted or whether their
subordinates were unfairly promoted in terms of
section 186(2)(a) of
the Labour Relations Act.
1
The third respondent (the arbitrator) found that the true nature of
the dispute was about the fairness of the Resolution. She
had no
jurisdiction to entertain that dispute. The applicants seek to have
that ruling reviewed and set aside in terms of section
145 of the
LRA.
The Minister also sought condonation for the late filing of the
answering affidavit. I granted condonation
in limine
and gave
reasons extemporaneously.
Background facts
The individual applicants, members of the PSA, are all employed as
Chief Construction Project Managers in the Cape Town Office
of the
Department of Public Works.
2
The majority trade unions (including the PSA) entered into a
collective agreement with the public service as employer on 18
August 2009. That agreement is known as the “Occupation
Specific Dispensation for Engineers” (“the OSD”)
and is embodied in the Resolution.
The OSD provided for a new system of differentiated salary scales
for engineers. It provided for employees to be “translated”
to “appropriate posts and salary grades in accordance with the
posts that they occupy at the time of translation”.
The applicants were all “translated” to the post and
salary grade of “Chief Construction Manager Grade A”.
They do not dispute that the translation took place in terms of the
collective agreement. However, they felt that the manner
in which it
occurred had a “peculiar result”: their subordinates,
the project managers, were translated to the same
job grade. The
applicants are of the view that they, being more senior, should have
been translated to Grade B. They raised a
grievance but it was not
resolved. They then referred a dispute to the bargaining council.
The dispute was referred as an unfair labour practice dispute in
terms of section 186(2)(a) of the LRA. The applicants averred
that
they had been demoted. In their view, the dispute fell under s
186(2)(a):
“
Unfair
labour practice”
means
any unfair act or omission that arises between an employer and an
employee
involving—
unfair
conduct by the employer relating to the promotion, demotion,
probation (excluding
disputes
about dismissals for a reason
relating to probation) or training of an
employee
or relating
to the provision of benefits to an employee.
The award
Both parties – the PSA and the Department – led evidence
at the arbitration. The arbitrator noted that the first
issue she
had to determine, was “what this dispute is about”. She
found that the translation in terms of the OSD
did not constitute a
promotion or demotion: the applicants’ job descriptions
remained the same and everyone received an
increase in salary in
terms of the OSD. The OSD is a collective agreement negotiated and
agreed to by both parties. It is binding
on them.
The arbitrator also noted that the correct implementation of the
Resolution was not in issue. Finally, she found:
“
Although
I have jurisdiction in terms of the application and interpretation of
a collective agreement, I have no jurisdiction to
decide on the
fairness of the Resolution. Based on the above, the Council has no
jurisdiction to arbitrate this matter.”
Grounds of review
On review, the applicants argue that the arbitrator had jurisdiction
to arbitrate in terms of section 24 of the LRA. They also
submit
that the applicants were in fact demoted, and although the OSD is a
collective agreement, “it is the manner in which
it was
applied and implemented which forms the basis of the dispute.”
Evaluation / Analysis
Neither party disputed the jurisdiction of the bargaining council to
arbitrate a dispute over the interpretation and application
of a
collective agreement in terms of s 24 of the LRA. The problem is
that that is not the dispute that the applicants referred
to it.
They referred an unfair labour practice dispute in terms of s
186(2)(a). Having assessed the evidence, though, the arbitrator
concluded that the real dispute was about the way in which the OSD
had been implemented. Indeed, that is what Mr Strauss says
in his
founding affidavit in this review application:
“
[I]t
is the manner in which it was applied and implemented, which forms
the basis of this dispute.”
The arbitrator correctly found that the real issue in dispute was
the fairness of the Resolution in the way that it impacted
on the
applicants. At the arbitration, it was common cause that the OSD had
been correctly applied. The applicants nevertheless
argued that it
was unfair. In his opening address, the applicants’ attorney
explained the implementation of the OSD and
added that “that
is what the applicants allege brought about the unfairness”;
and in his heads of argument submitted
to the arbitrator he also
explained what the alleged “unfairness” was.
Ms
Harvey
, for the first respondent, correctly submitted that
the conduct complained of in this case arose from the correct
implementation
of the OSD, a collective agreement. The applicants’
real complaint, as the arbitrator found, is that it impacted
unfairly
on them.
The arbitrator had no jurisdiction to deal with any unintended
consequences of the agreement. As this court held in
IMATU v
SALGBC & others
3
:
“
An
elementary tenet of collective bargaining is that the constituency is
bound by the bargain, good or bad, that its representatives
make on
its behalf. ... The bargain, however, stands, unless it is manifestly
unconstitutional, a submission not made in these
proceedings.”
In
Mzeku & ors v Volkswagen South Africa & ors
4
this court confirmed that a collective agreement is binding on all
union members, even those who are in dispute with their own
union
about its terms. The only limitation on the primacy of collective
agreements is where a term is unlawful or unconstitutional.
Thus, in
SACCAWU v Shakaone & others
5
the Labour Appeal Court held that a collective agreement may not
override statutory provisions; and in
Larbi-Odam v MEC for
Education
6
the Constitutional Court held that, where the effect of an agreed
provision was to unfairly discriminate, its origin in a collective
agreement would not constitute a justification.
Even where a party had referred an interpretation and application
dispute to a bargaining council, it was incumbent on the arbitrator
to decide what the real dispute was. In
Minister of Safety &
Security v SSSBC and Others
7
the employee applied for a transfer within the South African Police
Services (SAPS). It was refused. He referred a dispute about
the
interpretation and application of a collective agreement
8
dealing with SAPS’s transfer policy and procedures to the
Safety and Security Sectoral Bargaining Council
(SSSBC). He challenged the decision of SAPS to refuse his
application for transfer.
The issue before the LAC was whether the
SSSBC had jurisdiction to deal with the dispute. And that issue had
to be determined
by how the court answered the further question,
whether or not the arbitrator correctly classified the dispute
before him as
one concerning the interpretation and application of a
collective agreement. It was accepted by both parties that, if the
dispute
was a dispute about the interpretation or application of a
collective agreement, the SSSBC had jurisdiction in respect of the
dispute; but that, if the dispute was about the fairness of the
transfer, the SSSBC did not have jurisdiction.
On the same day as it handed down judgment in
SSSBC,
the
LAC handed down judgment in
Johannesburg
City Parks v Mpahlani NO & others
9
(“City Parks”).
In
City Parks
10
the court offered the following explanation
between “a dispute” and “an issue in a dispute”:
“
[14]
There are a number of areas in the LRA with references to disputes or
proceedings that are about the interpretation or application
of
collective agreements, particularly in provisions that deal with
dispute resolution. Some of the sections of the LRA which contain
such references are ss 22 and 24. In all of those sections the
references to disputes about the interpretation or application of
a
collective agreement are references to the main disputes sought to be
resolved and not to issues that need to or may need to
be answered in
order to resolve the main dispute. Let me make an example to
illustrate the distinction that I seek to draw between
a
dispute
and
an
issue in a dispute
.
One may have a situation where an employee is dismissed for
operational requirements and that dismissal is challenged as unfair
because it is said that in terms of a certain collective agreement
the employer was supposed to follow a certain
procedure
before dismissing the employee but did not follow such procedure. In
such a case, in determining whether the dismissal was fair
or unfair,
the Labour Court would have to determine whether the relevant
provisions of the collective agreement were applicable
to that
particular dismissal. The employer may argue that, although the
collective agreement is binding on the parties, the particular
clause
did not apply to a particular dismissal. This means that the Labour
Court has to interpret and apply the collective agreement
in order to
resolve the dispute concerning the fairness or otherwise of the
dismissal for operational requirements. So, the real
dispute is about
the fairness or otherwise of the dismissal and the issue of whether
certain clauses of the collective agreement
are applicable and/or
compiled with before the employer was dismissed is an issue necessary
to be decided in order to resolve the
real dispute.
[15] In the above example it
cannot be said, for example, that the Labour Court has no
jurisdiction to adjudicate the dispute concerning
the dismissal for
operational requirements and it must be referred to arbitration just
because, prior to or in the course of, resolving
the dismissal
dispute, the issue concerning the interpretation or application of
certain clauses of the collective agreement must
be decided. It would
be different, however, where the main dispute, as opposed to an issue
in a dispute, is the interpretation
or application of a collective
agreement. In the latter case the Labour Court would ordinarily not
have jurisdiction in respect
of the dispute and the dispute is
required to be resolved through arbitration in terms of the LRA.
[16] The proposition advanced by
counsel for the appellant made no distinction between a dispute, on
the one hand, and an issue
in a dispute, on the other. That is why
the appellant's counsel was driven to submit that all disputes which
are dealt with by
a bargaining council are disputes about the
application of a collective agreement because the procedures for
dealing with such
disputes are provided for in a collective
agreement. Obviously, this proposition can simply not be correct. In
bargaining councils,
proceedings are held that are about all kinds of
disputes such as proceedings about dismissal disputes, proceedings
about disputes
concerning the interpretation or application of
collective agreements, proceedings concerning disputes about
organizational rights,
proceedings about wage disputes and
proceedings concerning other disputes.”
In
SSSBC
, the court applied the same reasoning. It found that
the dispute that was before the arbitrator in that case was a
dispute concerning
the fairness or otherwise of SAPS’s refusal
to approve the employee’s application or request for a
transfer and the
application of the provisions of the collective
agreement was an issue in dispute. It was an issue which had or may
have had
to be dealt with in order to resolve the real dispute. That
is the main dispute. The dispute itself did not relate to an
application
of the collective agreement. The court concluded that
the Bargaining Council did not have jurisdiction to arbitrate the
dispute
because that was a dispute concerning the fairness or
otherwise of the decision not to approve the employees application
for
a transfer.
This court applied similar reasoning in
SA Onderwysersunie v Head
of Department, Gauteng Department of Education & others (1)
11
,
having referred to
City Parks
and
SSSBC
, when it
held:
“
It
appears to me that the main dispute in this urgent application is not
the interpretation and application of a collective agreement.
The
relief sought is for the head of department to refund the money
deducted from the applicants' members pending the compilation
of a
factually correct database. In the course of deciding whether the
applicants are entitled to the relief sought, I have to
consider
various undertakings by the GDE, some of which are contained in
collective agreements of the PSCBC. Those agreements form
part of the
issues in dispute; but the main dispute is not the interpretation or
application of a collective agreement.”
Conclusion
In the case before me, the arbitrator applied her mind to the real
dispute before her. She found that the dispute was the fairness
or
otherwise of the way in which the OSD had been implemented. The
bargaining council did not have jurisdiction to arbitrate
that
dispute. That reasoning, given the precedent I have referred to,
appears to me to be both reasonable and correct. It is
not open to
review.
Both parties asked that costs should follow the result. I see no
reason in law or fairness to disagree.
Order
The application for review is dismissed with costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANTS:
F Cronjé
attorney.
FIRST RESPONDENT:
S Harvey
Instructed by the State
Attorney.
1
Act
66 of 1995 (the LRA).
2
The
Minister of Public Works is cited as the first respondent in his
official capacity as the minister responsible for that department.
3
(2010)
31
ILJ
1407 (LC) para [13].
4
[2001]
8 BLLR 857
(LC).
5
[2000]
10 BLLR 1123
(LAC).
6
[1997] ZACC 16
;
1998
(1) SA 745
(CC).
7
(2010)
31
ILJ
1813 (LAC).
8
Safety
& Security Sectoral Bargaining Council Agreement 5 of 1999.
9
(2010)
31
ILJ
1804 (LAC).
10
Supra
paras [14] – [16].
11
(2011)
32
ILJ
1413 (LC) para [38].