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[2016] ZALCCT 21
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Coetzee and Others v Public Health And Social Development Sectoral Bargaining Council and Others (C819/15) [2016] ZALCCT 21 (12 July 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C819/15
DATE:
12 JULY 2016
Not
Reportable
In
the matter between:
A
R COETZEE & 49
OTHERS
...............................................................................................
Applicant
And
THE PUBLIC
HEALTH AND SOCIAL
DEVELOPMENT
SECTORAL BARGAINING COUNCIL
(FORMERLY THE
PUBLIC HEALTH AND WELFARE
SECTORAL
BARGAINING
COUNCIL)
..................................................................
First
Respondent
FAITH NCUMISA
BANTWINI
N.O
......................................................................
Second
Respondent
THE MEC OF THE
WESTERN CAPE
PROVINCIAL
GOVERNMENT HEALTH
DEPARTMENT
...........................................................................................................
Third
Respondent
Heard:
February 18 2016
Delivered:
July 12 2016
JUDGMENT
RABKIN-NAICKER,
J
[1]
The applicants seek the setting aside of the Second Respondent’s
ruling made on 5 December 2006 under case number PHS139/06/07.
The
ruling was made in the wake of a conciliation hearing and found that
the first respondent did not have jurisdiction to hear
applicants’
dispute. Applicants are now asking this court to direct the first
respondent to issue a certificate that the
dispute could not be
resolved at conciliation and should be referred to arbitration for
determination. The background to this application
is set out below.
[2]
On 13 June 2006 Professor Andreas Retief Coetzee and his colleagues
referred a dispute to the first respondent (the Bargaining
Council),
on the basis that the third respondent failed to implement a
collective agreement which entitled them to a non-pensionable
scarce
skills allowance.
[3]
The second respondent dismissed the referral on grounds that the
Bargaining Council did not have jurisdiction to conciliate
the
dispute. Her decision is recorded as follows:
“
Conciliation
proceedings were scheduled for 13 November 2006 at Eben Donges
Hospital in Worcester. The Respondent was represented
by Mr J Barends
while Applicants were represented by Mr GJ Rossouw and Professor A
Coetzee from the University of Stellenbosch.
Professor Andre Coetzee,
one of the applicants, made some representations on behalf of his
colleagues.
The
dispute relates to non-payment of rural/scarce skills allowed by the
Respondent, Department of Health as cited in the referral.
Mr
Barends’ counter argument was that the Applicants were not
employees of the Department of Health and as such he does not
have
jurisdiction to represent the University of Stellenbosch who is the
employer. All employees are currently employed by Stellenbosch
University. Professor Coetzee’s argument was that 49% of the
Applicants’ remuneration is paid by the Department of
Health
and the balance is paid by the University. This situation entitles
them to be employees of the Department of Health.
On
the facts before me, I have no legal basis to conciliate the matter
as Applicants are contractually employed by the University
not by the
Department of Health
Ruling
1.
The Public Health and Welfare Sectoral Bargaining Council does
not have jurisdiction over the matter.
2.
The case is dismissed.”
[4]
Instead of reviewing the second respondent’s decision, the
applicants, acting on legal advice, caused a Statement of Claim
to be
issued out of the Cape Town Labour Court under case number C751/2008
on 14 October 2008. The trial proceeded in two parts:
first on the
merits before Acting Justice Cheadle on 5 March 2010, followed by a
special plea of prescription before me three years
later, on 20 March
2013.
[5]
On the first issue, Cheadle AJ, purportedly sitting as an arbitrator,
determined that the Applicants were entitled to the scarce
skills
allowance. On the second issue, I dealt with the special plea of
prescription which related to the Applicants’ claims
for
payment of the allowances, and determined that the Prescription Act
did not apply to claims under the Act. The said judgments
were
appealed to the Labour Appeal Court
[6]
The Labour Appeal Court delivered its judgment on 24 August 2015
[1]
.
It concluded its judgment by:
a.
Upholding the Third Respondent’s appeal (on the basis that the
Labour Court had no jurisdiction in the matter); and
b.
Setting aside Cheadle AJ and my orders and replacing them with the
following order:
“
No
order is made in respect of the Applicants’ claim and no costs
order is made.”
[7]
The LAC held as follows:
“
[92]
The real dispute between the appellant and the respondent is about
the interpretation and application of the collective agreement.
In
particular, the respondents contend that they are covered by the
terms of the collective agreement and the appellant denies
it. The
only manner of resolving that dispute is to interpret the collective
agreement itself. That this is so is also apparent
from Cheadle AJ’s
judgment on the merits. It was mainly, or fundamentally, about the
interpretation of the collective agreement.
[93]
In Ekurhuleni, this Court has held that the Labour Court is not
empowered under the LRA or the BCEA to interpret and decide
on the
application of a collective agreement, particularly in circumstances
where the interpretation (and the issue of application)
is pivotal
and fundamental (as in this case) and not merely incidental, to the
resolution of the real dispute between the parties.”
[8]
The LAC found that it is for the forum and/or structures with
jurisdiction to decide on the interpretation and application of
the
scarce skills agreement. I note that the LAC further noted, having
found that the Labour Court had no jurisdiction in this
matter, the
following:
“
[95]
In the light of the conclusion, it is not necessary to deal with the
other points in respect of which the parties were to address
this
Court, namely, the applicability of sections 62(3) and 62(3A) of the
LRA. I, nevertheless consider that those sections may
have
constituted obstacles to the Labour Court whether properly sitting as
such, or as arbitrator.”
[9]
Section 62 of the LRA provides in material part as follows:
“
62
Disputes about demarcation between sectors and areas
(1) Any
registered trade union, employer, employee, registered employers'
organisation or council that has a direct or indirect
interest in the
application contemplated in this section may apply to the Commission
in the prescribed form and manner for a determination
as to-
(a) whether
any employee, employer, class of employees or class of employers, is
or was employed or engaged in a sector or area;
(b) whether
any provision in any arbitration award, collective agreement or wage
determination made in terms of the Wage Act is
or was binding on any
employee, employer, class of employees or class of employers.
(2) If two or
more councils settle a dispute about a question contemplated in
subsection (1) (a) or (b), the councils must inform
the Minister of
the provisions of their agreement and the Minister may publish a
notice in the Government Gazette stating the particulars
of the
agreement.
(3) In any
proceedings in terms of this Act before the Labour Court, if a
question contemplated in subsection (1) (a) or (b) is
raised, the
Labour Court must adjourn those proceedings and refer the question to
the Commission for determination if the Court
is satisfied that-
(a) the
question raised-
(I) has not
previously been determined by arbitration in terms of this section;
and
(ii) is not
the subject of an agreement in terms of subsection (2); and
(b) the
determination of the question raised is necessary for the purposes of
the proceedings.
(3A) In any
proceedings before an arbitrator about the interpretation or
application of a collective agreement, if a question contemplated
in
subsection (1) (a) or (b) is raised, the arbitrator must adjourn
those proceedings and refer the question to the Commission
if the
arbitrator is satisfied that-
(a) the
question raised-
(I) has not
previously been determined by arbitration in terms of this section;
and
(ii) is not
the subject of an agreement in terms of subsection (2); and
(b) the
determination of the question raised is necessary for the purposes of
the proceedings……”
[10]
I invited the parties to address me on the issue of whether the
section 62 route was the most appropriate one to follow
in casu
.
Neither side advocated same. The third respondent argued that I
should not grant condonation for the late filing of the review
application. If I nevertheless did, they submitted that the second
respondent was correct in law when she dismissed the applicants’
referral in 2006. For the applicants, it was argued that condonation
should be granted in view of the history and circumstances
of this
case, that the ruling should be set aside and the matter should be
remitted to the bargaining council for arbitration.
[11]
I am inclined to grant condonation to the applicants for the late
filing of this review application, given the history of this
matter.
It is in the interests of justice to do so. However I am mindful that
if this court were to set aside the ruling and engage
in substituting
it and addressing the merits of the real dispute between the parties,
it would be treading into waters already
traversed by Cheadle AJ, on
subject matter already found by the LAC to be outside of this court’s
jurisdiction. I am also
of the view that the essence of this dispute
may well lead to a referral to the CCMA under section 62 of the LRA
(something which
can be done by either of the parties should they so
elect, or by an arbitrator.)
[12]
The ruling in question is of a very brief nature, with no reference
to the documentary evidence that served before the second
respondent.
There is further no indication that the second respondent applied her
mind to the interpretation of the collective
agreement in question,
in coming to her decision. The review of a jurisdictional ruling is
generally substituted given it is concerned
with whether the decision
maker was correct on all the evidence before her. However, it is my
view that where the record of the
proceedings together with the
ruling, does not reveal the basis for the decision in respect of the
real issue in dispute, as in
this case, it is preferable that the
matter be remitted for re-hearing. The setting aside of the ruling
does not constitute a finding
on whether the first respondent has
jurisdiction or not. That question if raised, will be dealt with in
arbitration proceedings
before the first respondent. Given the
history of this matter it is certainly preferable that as the LAC has
held, the appropriate
forum and/or structure delves into the real
issue in dispute.
[13]
A conciliation process has taken place in which there was no
settlement between the parties and there is no need for me to
direct
the issuing of any certificate by the bargaining council as prayed
for by the applicants. The ruling stands to be set aside.
I
make the following order:
[14]
Order
1.
Condonation is granted for the late filing of the review.
2.
The ruling under case number PHS139/06/07 is reviewed and set aside.
3.
The dispute is referred to the first respondent to be arbitrated by
an arbitrator other than second respondent.
4.
There is no order as to costs.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicants:
Rob Stelzner SC
Instructed
by Mc Roberts Attorneys
Respondents:
A Oosthuizen SC and B Joseph
Instructed
by the State Attorney
[1]
Member of the Executive Committee of the Western Cape Provincial
Government Health Department v Coetzee & others (2015) 36
ILJ
3010 (LAC)