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[2015] ZALCCT 54
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Khara Hais Municipality v IMATU obo Wellen and Others (C690/15) [2015] ZALCCT 54 (5 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
Number C690/15
In
the matter between:
//KHARA
HAIS
MUNICIPALITY
Applicant
and
IMATU
obo WELLEN &
Others
First Respondent
MAPUTLE
MOHALE
N.O.
Second Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
Date
heard: 5 February 2015
Delivered:
5 August 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award under
case number NCD 041422. The second respondent (the arbitrator)
was
required to determine whether the applicant Municipality had
contravened a collective agreement in disbanding its law enforcement
unit and transferring employees to positions of security guards.
[3]
In his award the arbitrator found that the municipality had acted
unfairly in transferring the applicants after disbanding the
law
enforcement unit, and had also failed to consult as per the
relevant provisions in the Main Collective Agreement on consultation
in the Local Labour Forum (clause 2.8. thereof). He ordered the
individual employees be reinstated as law enforcement officers
on the
same pay and benefits as applied at the date of transfer and to
fulfil only those functions “as they are declared
to be peace
officers in terms of the
Criminal Procedure Act 51 of 1977
–
Declaration of Peace Officers (2002).”
[4]
The award records that: “The parties agreed that they were not
going to lead oral evidence and that the matter could be
determined
through oral submissions with option of reply on the day.”
Common cause facts are recorded as follows:
“
The
parties agreed as common cause that consultations were not held at
the LLF; the law enforcement unit was disbanded on 06 January
2014;
the law enforcement officers became security guards; as law
enforcement officers, they enforced municipal by-laws; the applicants
were transferred to become security guards without their consent.”
[5]
In short, the case for the Municipality at arbitration was that its
law enforcement division was not lawfully established as
a “municipal
police service” and thus the need for it to cease to exist. It
was further submitted at the arbitration
that given the municipal
manager’s view that the appointment of law enforcement officers
had been unlawful in terms of the
Municipal Systems Act, and void ab
initio, it was pointless to consult to reach consensus. Imatu’s
position was that the
law enforcement officers were appointed in
terms of section 334(1)(a) of the Criminal Procedure Act 151 of 1997
which gives the
Minister of Justice the power to declare that
categories of Law Enforcement Officers have certain powers. Reliance
was placed on
Government Notice R209 dated February 2002. One of
those categories is that of law enforcement officers appointed by
municipalities.
[6]
On review, the applicant Municipality pleaded inter alia that the
award was not reasonable and that the arbitrator made an error
of
law. In my judgment, the issue of whether the individual employees
had been appointed as law enforcement officers in terms of
the
Criminal Procedure Act, on which the arbitrator pronounced, was
beyond his remit, even on the face of the award itself. He
should
have only confined himself to the issue to be decided which he
recorded as:
“
The
issue to be decided was whether or not the respondent had consulted
in terms of the Labour relations Act 66 of 1995 (as amended)
or at
the Local Labour Forum (LLF) in disbanding the law enforcement unit
and transferring the employees unlawfully to positions
as security
guards.”
[7]
In the transcript of the proceedings the arbitrator is recorded as
stating the following:
“
The
nature of the dispute is referred as one of interpretation on the
application of a collective agreement. The collective agreement
being
the first standard condition of employment agreement in particular
section 6.4 of dealing with transfers reading as follows:
‘A
transfer shall take place only when the Council is of the opinion
that it will be to the advantage of the council’s
service and
with the proviso that the employee agrees thereto.”
[8]
The record reflects that the individual employees sought the remedy
of re-appointment as law enforcement officers, which in
effect meant
the re-establishment of the law enforcement unit which had been
disbanded by the municipality. The arbitrator did
not appear to
examine whether such a remedy was open to him to award but gave the
employees the remedy they sought premised on
his finding that the
individual employees were appointed in terms of the Criminal
Procedure Act as law enforcement officers. This
is a classic
case of an arbitrator misconstruing the nature of the enquiry before
him and coming to an unreasonable result.
[1]
[9]
The arbitrator should have confined himself to the issue of whether
there had been proper consultation in terms of the collective
agreement, and to fashion an appropriate remedy if there had not
been. There was no unfair labour practice dispute before him and
his
finding in respect of fairness also reflects a misapprehension of the
nature of the enquiry before him.
[10]
One further observation I wish to make is that on the papers in the
review and in the record of the arbitration a dispute exists
regarding the issue of consultation and/or meaningful consultation in
that there was an invitation to Imatu and the affected members
to
meet the municipal manager to discuss the situation of the
disbandment of the unit, albeit not in the local labour forum. This
issue should have been dealt with by means of oral evidence.
[2]
[11]
In all the above circumstances, and taking into account the ongoing
relationship between the parties, I make the following
order:
Order
1.
The award under case number NCD 041422 is reviewed and set aside;
2.
The dispute in terms of section 24 of the LRA is remitted to the
third respondent for hearing before an arbitrator other than
second
respondent;
3.
There is no order as to costs.
________________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances
:
For
the Applicant: P.M Venter instructed by Adrie Hechter Attorneys
For
the First Respondent: Imatu representative
[1]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
2013
(6) SA 224
(SCA) at para 25
[2]
As
yet unreported case C233/14, Rabkin-Naicker J delivered on 30 April
1015