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[2014] ZALCCT 10
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Transport & Omnibus Workers Union (TOWU) obo Members v South African Road Passenger Bargaining Council and Others (C409/2013) [2014] ZALCCT 10; (2015) 36 ILJ 491 (LC) (15 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case
no: C409/2013
In
the matter between:
TRANSPORT
& OMNIBUS WORKERS UNION
(TOWU)
OBO
MEMBERS
........................................................................................
Applicant
and
SOUTH
AFRICAN ROAD PASSENGER BARGAINING
COUNCIL
.......................................................................................................
First
Respondent
STEPHEN
BHANA
....................................................................................
Second
Respondent
GREYHOUND
COACHLINES A DIVISION
OF
UNITRANS (PTY)
LTD
..........................................................................
Third
Respondent
Date
heard: 6 February 2014
Delivered:
15 April 2014
Summary:
Review of a jurisdictional ruling; where an award dealing with the
interpretation and application of a collective agreement
is upheld on
review by the labour court, the labour court judgment does not oust
the jurisdiction of the CCMA or a bargaining council
to hear a
referral concerning the same aspect of the collective agreement by
another union party to the agreement;
JUDGMENT
Rabkin-Naicker
J
[1]
This is an opposed application to review and cross review the
findings of second respondent (the arbitrator) which he made in
a
jurisdictional ruling. The ruling concerns a jurisdictional point as
to whether the first respondent (the council) has jurisdiction
to
arbitrate a dispute concerning the application and interpretation of
a particular collective agreement. The arbitrator found
that it did
not.
[2]
At the hearing the third respondent (the company) submitted that the
council did not have jurisdiction to hear the dispute on
two grounds.
First that the issue, namely the interpretation of the term “ordinary
hours of work" had been dealt with
in two previous awards in
favour of the company, albeit pertaining to the company and different
unions. The second ground relied
on by the company was that one of
those awards had been taken on review in the Labour court
unsuccessfully.
[3]
The company argued that since the council was cited as the respondent
in a review of a previous award dealing with the same
questions, it
was bound by the court's decision, as are all the parties to the main
collective agreement.
[4]
The arbitrator reasoned as follows having heard submissions from both
parties:
"it
is common cause that similar disputes had been lodged and decided by
means of arbitration awards, one of which was unsuccessfully
reviewed. It is trite that I am not bound by awards made by my
colleagues on the same or similar disputes. I've furthered do not
agree that the doctrine of stare decisis as it relates to those
awards (the policy of courts to abide by or adhere to principles
established by decisions in earlier cases) applies in this case. The
previous awards did not establish principles; it ruled on
a dispute.
It
is common cause however that the award involving TAWUSA and the
respondent had been taken on review in the Labour Court,
unsuccessfully.
The powers of the Labour Court as detailed in section
158 of the LRA are quite wide but includes making an award an order
of the
court and it includes an award about the application and
interpretation of a collective agreement (section 158 (3) (e)).
[1]
It is my opinion that where the court refuses to overturn an award,
on whatever grounds, that award becomes final and binding as
envisaged in section 143 (1) of the LRA. Since the issue in dispute
in casu is essentially the same as the one that served before
the
court in the TAWUSA matter, the court's decision amounts to a
confirmation of that award and the issue in dispute namely the
application and interpretation of ordinary working hours. I therefore
find that the Council does not have jurisdiction to hear
this
matter."
[5]
In a review directed at a finding of jurisdiction, all that an
applicant need establish to succeed on review is that the finding
was
wrong. What is relied on to make such a decision is the objective
existence of jurisdictional facts.
[2]
The company, in its cross review, correctly abandoned its submissions
directed at establishing that
stare
decisis
can apply to arbitration awards involving the interpretation of a
collective agreement, given such awards are decisions of
an
administrative nature. However, it did submit that there was a policy
basis to avoid an employer having to engage with a multiplicity
of
unions over workplace issues. Further, that employers should not be
required to engage with unions on the same issue after that
issue had
been authoritatively determined.
[6]
The company's submissions proceeded on the basis that because the
Labour Court had found that there was no basis to review the
relevant
award between the company and other unions (which found that the
Company’s refusal to pay employees for the compulsory
rest
period is not contrary to the main agreement), a bargaining council
arbitrator is bound by the decisions of the Labour Court.
The
arbitrator so they reasoned, cannot reconsider issues dealt with in
awards which have been sanctioned by the Labour Court.
[7]
These submissions cannot possibly stand scrutiny. This is because the
Labour court is not a Court of Appeal in respect of arbitration
awards but is empowered by the LRA to review such awards. It is not
necessary for the purposes of this judgment for me to deal
with the
various grounds of review and the jurisprudence in relation thereto.
It is only in a review on a jurisdictional point
that this court is
engaged in examining whether an arbitrator was correct or not. But it
is important to reiterate the distinction
between an appeal and a
review. On review, when a functionary is entrusted with a discretion,
weight to be attached to particular
factors, or how far a particular
factor affects the eventual determination of the issue, it is a
matter for the functionary
to decide, and when he acts in good faith
(and reasonably and rationally) a court of law cannot interfere.
[3]
[8]
As the Supreme Court of Appeal has stated in
Dumani
v Nair and Another
[4]
after surveying the authorities of various jurisdictions:
“
In
none of the jurisdictions surveyed by the authors have the courts
gone so far as to hold that findings of fact made
by the
decision-maker can be attacked on review on the basis that the
reviewing court is free, without more, to substitute its
own view as
to what the findings should have been — ie an appeal test. In
our law, where the power to make findings of fact
is conferred on a
particular functionary — an 'administrator' as defined in
PAJA — the material-error-of-fact
ground of review does not
entitle a reviewing court to reconsider the matter afresh.
'Although
the review functions of the Court now have a substantive as well as a
procedural ingredient, the distinction between appeals
and reviews
continues to be significant. The Court should take care not to
usurp the functions of administrative
agencies. Its task is to ensure
that the decisions taken by administrative agencies fall within the
bounds of reasonableness as
required by the Constitution.'
The
ground must be confined to the situation, as in the English law……
to a fact that is established in the sense
that it is uncontentious
and objectively verifiable.”
[9]
On the question of policy considerations, the company has sought to
convince the court that the principles of majoritarianism
and speedy
resolution of disputes mean that an employer should not have to sit
in numerous arbitrations seeking to interpret the
same collective
agreement with different collective-bargaining partners. The answer
to this conundrum is simply for employers to
ensure that in any such
proceedings, the different unions which fall under the collective
agreement are joined to the dispute.
[10]
In all the circumstances, I find that the arbitrator was quite
incorrect in accepting the argument that he was bound by a previous
award by virtue of the fact that such award had been unsuccessfully
reviewed in the Labour Court. The ruling stands to be set aside
and
substituted with a finding that the Bargaining Council has
jurisdiction to hear the dispute by virtue of the provisions of
section 24 of the Labour Relations Act. I do not intend to make a
costs order in this matter because of the ongoing relationship
between the parties. I therefore order as follows:
1.
The jurisdictional ruling under case number are RPNT1429 issued on 13
April 2013 is hereby reviewed and set aside;
2.
The dispute in terms of section 24 of the Labour Relations Act may be
remitted back to the first respondent for hearing by an
arbitrator
other than second respondent.
Rabkin-Naicker
J
Judge
of the Labour Court of South Africa
Appearences:
Applicant: Mr W.D
Field of Bernadt Vukic Potash & Gettz
Third
Respondent: Advocate Craig Bosch instructed by Bowman Gilfillan
Attorneys
[1]
In
fact the meaning of this provision is that the labour court has no
jurisdiction to hear a section 24 dispute.
[2]
SA Rugby Players Association (SARPA) & others v SA Rugby (Pty)
Ltd & others; SA Rugby (Pty) Ltd v SARPU & another
(2008) 29
ILJ 2218 (LAC)
[3]
MEC for Environmental Affairs & Dev Planning v Clairison's CC
2013 (6) SA 235
(SCA) para 21
[4]
2013 (2) SA 274
(SCA) at paragraph 32