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[2014] ZALCJHB 175
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Polokwane Local Municipality v Maseko and Others (JR2821/2010) [2014] ZALCJHB 175 (20 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: JR2821/2010
In
the matter between:
POLOKWANE
LOCAL
MUNICIPALITY
Applicant
and
M.M.
MASEKO
NO.
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
IMATU OBO SAENEGO AND
13 OTHERS
Third Respondent
Heard:
14 January 2014
Delivered:
20 May 2014
Summary:
Section 199
of the
Labour Relations Act 66 of 1995
as amended.
Applicants accorded lesser benefits compared to other employees.
Applicability of collective agreements
to the Applicant’s.
No rationale demonstrated why collective agreements not applicable to
the Applicants. Review
application dismissed.
JUDGMENT
SNIDER
AJ
[1]
This is a review application in terms of which the Applicant seeks
the setting aside of the following award made by the First
Respondent
–
‘
1.
The respondent is ordered to allow the applicant (sic) to belong to
the accredited pension and medical aid schemes subject to
rules of
the schemes and to comply with all the applicants’ leave and
benefit entitlement as per the SALGBC agreements: conditions
of
employment agreement: Transvaal 1994 and the main collective
agreement 2004.
2. The
respondent is further ordered to credit applicants all leave days not
enjoyed from 1999 until 2009 December’.
[1]
[2]
This application relates to a group of individuals (“the
Employees”) who became employed by the Applicant during
the
period from 1998 to 2005 and were still in its employ when the
arbitration which preceded this application took place.
[3]
The Employees worked two hours a day Monday to Friday. The Employees
were employed as points-men outside various schools within
the
Applicant’s geographic jurisdiction.
[4]
The Applicants did not work during school holidays, neither were they
paid during school holidays.
[5]
The question before the Commissioner was, in essence, whether or not
the relevant collective agreements, being the conditions
of service
collective agreements inclusive of the old Transvaal collective
agreement of 1994 and the current agreement of 2004
applied to the
Employees.
[6]
The matter was heard by the First Respondent (“the
Commissioner”), acting under the auspices of the Second
Respondent
by way of a referral of an unfair labour practice dispute
by the Employees represented by their trade union, IMATU.
[7]
The salient portion of the referral
[2]
is –
‘
The
issues in dispute (sic) are … interpretation and application
of the collective agreement in that the employer has appointed
the
Applicants as point duty officers with less or not the same
conditions of service as all other employees thereby limiting them
to
not receive the same benefits as other employees for many years’.
[8]
The relief sought by the Employees was
‘
1.
The employer must put the applicants on the same conditions of
service as other employees of the employer and make sure they
receive
the same benefits as others retrospectively.
2.
The employer must compensate the applicants
for the loss they have suffered for being subjected to the lesser
benefits or conditions
of service. (sic)
3.
The employer the applicants on a permanent
basis or position’.
[9]
There was no oral evidence given at the arbitration of the matter. It
was decided on the basis of documents, argument and heads
of argument
submitted by the parties.
[10]
The Commissioner made his award, as set out above, based on the
following reasoning –
10.1
In
terms of section 199 of the Labour Relations Act
[3]
(“the LRA”) Contracts of employment are not allowed to
waive or ignore any collective agreement and accordingly, the
Applicants argument that the Employees can’t claim any rights
except those in the BCEA is inconsistent with the provisions
of the
LRA; and
10.2
The Employees have successfully proved that the rights claimed are as
per the BCEA and the collective agreements
referred to above.
[11]
The grounds of review advanced by the Applicant in this matter are
set out below together with findings in respect thereof.
[12]
The first apparent ground of review, and the grounds are by no means
easy to discern, advanced by the Applicant is that in
making his
award to the effect that the Respondent is ordered to allow the
Employees to belong to the “accredited pension
and medical aid
schemes subject to the rules of the schemes …” the
Commissioner was making an order which constituted
- “a well
Knigh (sic) impossibility for Applicant to translate into practice …”
[13]
This is simply not a ground for review and the Applicant gives no
evidence whatsoever in this regard. It is simply the “view”
of the deponent who does not qualify himself as an expert in the
field of medical aid and pension funds in any manner whatsoever.
[14]
The second ground of review appears to be that the dispute which was
arbitrated was a dispute of interest, which should be
the subject of
negotiations in industrial action, and not a dispute of right, which
is subject to the unfair labour practice jurisdiction
of the Second
Respondent.
[15]
I find this ground of review completely unsupportable. The dispute is
clearly one in terms of which the Employees assert that
they have
rights in terms of the collective agreements and the question for
determination by the Commissioner was whether or not
the said
collective agreements applied to them. In my view it is a classic
unfair labour practice dispute where they Employees
allege that the
failure of the Applicant to accord them the same benefits as its
other Employees, on the basis that the collective
agreements referred
to above apply equally to the Employees, is simply unfair.
[16]
It may be argued that the dispute is really one relating to the
interpretation and application of a collective agreement but,
in any
event, the dispute will have followed the same path through the
bargaining council but in terms of section 24 of the LRA.
[17]
Nevertheless, the Applicant has sought to review the dispute which
indicates its view that the matter was adjudicated, reviewably
or
reasonably, as an unfair labour practice dispute.
[18]
Notwithstanding the distinctions referred to above, it simply is not
an “interest dispute”.
[19]
An interest dispute is to be distinguished from a “matter of
mutual interest” which gives rise to, ultimately,
industrial
action. This dispute is clearly not of that nature but one that is
arbitrable in terms of what are asserted to be rights
by the
Employees.
[20]
The next ground of review appears to be that the claim did not relate
to “benefits” as set out in section 186(2)(a).
There is a
plethora of jurisdiction on this point. The Employees, in their heads
of argument, refer to the decisions in
Protekon
(Pty) Ltd v CCMA and Others
[4]
which is clearly to the effect that benefits of the nature dealt with
in this matter fall within the ambit of section 186(2)(a)
of the LRA.
Todd AJ, in
Protekon
(
supra)
also refers to the
locus
clasicus
in this particular area of the law,
HOSPERSA
and Another v Northern Cape Provincial Administration
[5]
and comments, with respect, correctly, that
[6]
-
‘
[32]
What the Labour Appeal Court clearly does say in HOSPERSA is that the
unfair labour practice jurisdiction cannot be used to
assert an
entitlement to new benefits, to new forms of remuneration or to new
policies not previously provided by the employer.
To permit that
would allow an employee to use the unfair labour practice
jurisdiction to establish new contractual terms, something
which the
LRA clearly contemplates should be left to a process of bargaining
between the parties.
[33] It does not,
however, follow from this that an employee may have recourse to the
CCMA’s unfair labour practice jurisdiction
only in
circumstances in which he has a cause of action in contract law. If
that was the case there would have been little purpose
in introducing
the specific unfair labour practices contemplated in section 186 of
the LRA’
[34] The establishment of
the CCMA’s unfair labour practice jurisdiction specifically in
relation to benefits is, it seems
to me a legislative response to the
complexity of the reciprocal employer and employee rights and
obligations that exist in many
employee benefit schemes. In typical
employee benefit employee schemes (such as pension funds and medical
aid schemes) the employer’s
obligations frequently extend
beyond the simple payment of money to the employee or a third party
in return for services rendered
by the employee. The employer
obligations are typically regulated by separate policies or rules. In
many instances the employer
enjoys a range of discretionary powers in
terms of those policies or rules. The Legislature has clearly
considered it necessary
to regulate employer conduct in those
circumstances by superimposing a duty of fairness irrespective of
whether that duty exists
expressly or impliedly in the contractual
provisions that establish the benefit….’
[21]
This ground of review is difficult to comprehend from the Applicants
affidavit and heads of argument. It does however seem
to relate
indirectly to the “rights” “interests”
debate. The Applicant appears to say that the First Respondent
could
not have found that the Employees claim was either
ex contractu
or
ex lege
. I accordingly reject this ground of review on the
same basis that I rejected ground of review relating to the “rights”
“interests” ground of review. The claim arises out of an
assertion that the Employees are entitled to have the benefit
of the
relevant collective agreements.
[22]
What is apparently the last ground of review is that the Commissioner
failed to discern a distinction between the contractual
benefits the
Employees were entitled to under the contract and the statutory
benefits accruing to them
ex lege
.
[23]
Section 199 of the LRA effectively elevates any contract of
employment, in respect of remuneration and benefits, if same are
lower in the relevant employment contract, to at least those provided
for in the relevant collective agreement. Accordingly this
ground of
review is, similarly, without merit.
[24]
The Applicant does argue, at paragraph 7.8 of its heads of argument,
that the Employees “were not covered by the terms
and
conditions” of the relevant collective agreements. I can see no
basis for this submission.
[25]
The 2004 agreement states, under the heading “
Scope of
Application of Agreement
” that “this agreement shall
apply to all employees and employers who fall within the registered
scope of the council
in the Republic of South Africa.”
[26]
It does not seem to me that any anomalies at all would arise by the
application of the relevant collective agreements to the
Employees
and, to the extent that difficulties may arise, there is
comprehensive exemptions process set out in the 2004 agreement
at
paragraph 14.
[27]
On the basis of what is set out above, I am of the view that the
Commissioner came a reasonable conclusion within the meaning
of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
[7]
[28]
It may well be that practical difficulties arise in the
implementation of the Commissioner’s award. That such
difficulties
may arise does not detract from the reasonableness of
the award.
[29]
In the premises, I make the following order -
1.
The application is accordingly dismissed.
2.
I make no order as to costs.
___________________________
Snider, A J
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant: None
For
the Respondents: L
de Beer
[1]
Pleadings
bundle pages 31 bottom onto page 32
[2]
Page
22 of the pleadings bundle
[3]
66
of 1995 as amended
[4]
(2005)
26
ILJ
1105 (LC) per the judgment of Todd AJ.
[5]
(2000)
21
ILJ
1066 (LAC).
[6]
At
paras 32 to 38.
[7]
[2007]
12 BLLR 1097
(CC).