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[2017] ZALCJHB 240
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Commission for Conciliation, Mediation and Arbitration v Commission for Conciliation, Mediation and Arbitration and Others (JR1624/16) [2017] ZALCJHB 240 (23 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
reportable
Case
No. JR 1624/16
In
the matter between:
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
NALEDI
BISIWE N.O.
Second Respondent
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA
Third Respondent
S
NZAMA AND
FOUR OTHERS
Fourth Respondent
Heard:
23 May 2017
Delivered:
23 June 2017
JUDGMENT
SALOOJEE,
AJ
Introduction
[1]
This is an application to review and set aside the second
respondent’s (Commissioner) award, which found that the fixed
term employment contracts of the fourth to eighth respondents became
contracts for an indefinite duration in terms of Section 198B
of the
Labour Relations Act
[1]
(LRA) by
operation of law.
[2]
The Commissioner also ordered, in the award, the applicant to pay the
fourth to eighth respondents for the period 1 October
2015 to 30 June
2016 and for the applicant to receive these respondents as permanent
employees.
Background
[3]
The applicant employed the fourth to eighth respondents as
interpreters on fixed term contracts for two-year periods.
[4]
These respondents consist of three groups as the contracts commenced
at different periods:
4.1
The first group consists of two employees who were employed from 1
May 2013 to 30 April
2015. The second group consists of two employees
who were employed from 1 June 2014 to 31 May 2016.
4.3 The
third group consists of one employee who was employed from 1
September 2014 to 31 August 2016.
[5]
Prior to the expiration of the fixed term contracts, the applicant
commenced with a process to recruit permanent interpreters.
The
applicant extended the fixed term contracts for the first group to 31
October 2015 in order to include these respondents in
the recruitment
process.
[6]
On completion of the recruitment process, the fourth to eighth
respondents were not offered permanent employment. Instead, these
respondents were offered part-time positions with the applicant.
The
grounds of review
[7]
The grounds of review are based on an interpretation of Section
198B
[2]
of the LRA.
[8]
The first ground of review is that a fixed term contract concluded
before 1 January 2015 and continued beyond 1 April 2015 does
not fall
within the scope of Section 198B of the LRA.
[9]
The second ground of review is that the phrase “
not
be treated less favourably”
contained in Section 198B(8)(a) cannot be equated to permanent
employment.
Analysis
[10]
Section 3 of the LRA
[3]
requires that the LRA should be interpreted on a construction that
complies with the Constitution and public international law
that
gives effect to the primary objects of the LRA.
[11]
In
Natal
Joint Municipal Fund v Endumeni Municipality
[4]
the
Supreme Court of Appeals states:
“…
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given
to the language used in the light of the
ordinary rules of grammar
and syntax; the context in which the provision appears; the apparent
purpose to which it is directed
and the material known to those
responsible for its production. Where more than one meaning is
possible each possibility must be
weighed in the light of all these
factors. The process is objective, not subjective. A
sensible meaning is to be preferred
to one that leads to
insensible or unbusinesslike results or undermines the apparent
purpose of the document. Judges must be alert
to, and guard against,
the temptation to substitute what they regard as reasonable, sensible
or businesslike for the words actually
used. To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation;
in a contractual context it is to
make a contract for the parties other than the one they in fact made.
The 'inevitable point of
departure is the language of the provision
itself', read in context and having regard to the purpose of the
provision and the background
to the preparation and production of the
document.
All
this is consistent with the 'emerging trend in statutory
construction'.
It
clearly adopts as the proper approach to the interpretation of
documents the second of the two possible approaches mentioned
by Schreiner JA in
Jaga
v Dönges NO and Another; Bhana v Dönges NO and Another
,
namely that from the outset one considers the context and the
language together, with neither predominating over the other. This
is
the approach that courts in South Africa should now follow, without
the need to cite authorities from an earlier era that are
not
necessarily consistent and frequently reflect an approach to
interpretation that is no
l
onger
appropriate. The path that Schreiner JA pointed to is now received
wisdom elsewhere. Thus Sir Anthony Mason CJ said:
'Problems of legal interpretation are
not solved satisfactorily by ritual incantations which emphasise the
clarity of meaning which
words have when viewed in isolation,
divorced from their context. The modern approach to interpretation
insists that context
be considered in the first instance,
especially in the case of general words, and not merely at some later
stage when ambiguity
might be thought to arise.'
More recently, Lord Clarke SCJ said
'the exercise of construction is essentially one unitary exercise'.”
[12]
In
Steenkamp
and others v Edcon Limited
[5]
,
the Constitutional Court adopted the purposive approach to interpret
the LRA on the following reasoning:
“
This
matter requires us to interpret various provisions of the LRA. That
being the case, it is necessary that we have regard to
the correct
approach to the interpretation of this legislation. The starting
point is section 39(2) of the Constitution.
In so far as it
is relevant, it reads:
“
When
interpreting any legislation . . . every court, tribunal or forum
must promote the spirit, purport and objects of the Bill
of Rights.”
We must also take into account the
provisions of section 3 of the LRA. Section 3 reads:
“
Any
person applying
this
Act
must
interpret its provisions—
(a)
to give effect to its primary objects;
(b)
in compliance with the Constitution; and
(c)
in compliance with the public international law obligations of
the
Republic
.”
The primary objects of the LRA appear
in section 1 which sets out its purpose. The purpose is –
“
to
advance economic development, social justice, labour peace and the
democratisation of the
workplace
by
fulfilling the primary objects of
this
Act.
”
Thereafter the primary objects of the
LRA are spelt out. They are:
“
(a)
to give effect to and regulate the
fundamental rights conferred by section 23 of the
Constitution;
(b)
to give effect to obligations incurred by the
Republic
as
a member state of the International Labour Organisation;
(c)
to provide a framework within which
employees
and
their
trade unions
, employers and
employers’
organisations
can –
(i)
collectively bargain to determine wages, terms and conditions of
employment
and other matters of mutual interest; and
(ii)
formulate
industrial policy; and
(d)
to
promote –
(i)
orderly collective bargaining;
(ii)
collective bargaining at sectoral level;
(iii)
employee
participation in decision-making in
the
workplace
; and
(iv)
the effective resolution of labour
disputes
.”
It is trite by now that, in
interpreting provisions of the LRA, the correct approach is purposive
interpretation.”
[13]
In
Commission
for Conciliation, Mediation and Arbitration v MBS Transport CC and
others
[6]
[7]
,
the Labour Appeal Court stated:
“
It
is trite that, when interpreting any document, regard must be had to
the language used as well as the context under which the
document saw
the light of the day. This holds true for any document including
contracts and legislative texts. There is no need
for any ambiguity
before the context is considered”
The
first ground of review
[14]
In
Bartman
v Dempers
[8]
,
the Appellate Division confirmed the rule of construction that:
“
There
is a well-known rule of construction that no statute is to be
construed so as to have a retrospective operation (in the sense
of
taking away or impairing a vested right acquired under existing
laws) unless the Legislature clearly intended the Statute
to
have that effect. See
Peterson
v Cuthbert and Co. Ltd.
,
1945 AD 420
at p. 430.”
[15]
The Appellate Division in
Minister
of the Interior v Confidence Property Trust (Pty) Ltd and others
[9]
stated:
“
I
am strongly inclined to the view that in interpreting those sections
the general rule must be applied viz: a statute regulates
future
conduct and must be construed, unless there is a clear indication to
the contrary, as operating only on cases or facts which
came into
existence after the Statute came into operation.
Nova
constitutio futuris formam imponere debet non praeteritis
.
See
Principal
Immigration Officer v Purshotam
,
1928 AD 435
at p. 443;
Principal
Immigration Officer v Bhula
,
1931 AD 323
at pp. 333 - 335;
Ex
parte The Minister of Justice
,
1938 AD 370
at pp. 377 - 378;
Peterson
v Cuthbert and Company Ltd.
,
1945 AD 420
at pp. 431 - 432; Craies on
Statute
Law
,
(6th ed. pp. 330
et
seq.);
Maxwell
on
Statutes
,
(8th ed. pp. 189
et
sec.)
.
In
Bartman
v Dempers
,
1952
(2) SA 577
(AD)
”
[16]
The Appellate Division in
Bellairs
v Hodnett and another
[10]
stated:
“
There
is
a
general presumption against a statute being construed as having
retroactive effect and even where a statutory provision is expressly
stated to be retrospective in its operation it is an accepted rule
that, in the absence of contrary intention appearing from the
statute, it is not treated as affecting completed transactions and
matters which are the subject of pending litigation. (
Bell
v Voorsitter van die Rasklassifikasieraad en Andere
,
1968
(2) SA 678
(AD)
;
Pinkey
v Race Classification Board and Another
,
1968
(4) SA 628
(AD); Steyn,
Uitleg
van Wette
,
4th ed., pp. 86 - 92).”
[17]
Kellaway in the Principles of Legal Interpretation of Statutes,
Contracts and Wills
[11]
states:
“
In
the interpretation of any statute or subordinate legislation (such as
a validity notice), there must be a clear indication that
it has
retrospective effect, otherwise it applies only from the date on
which it comes into effect or from the date of promulgation
or, as
the case may be, from the date of the notice.”
[18]
Section 198B of the LRA commenced on 1 January 2015.
[19]
Section 198B(8) consists of two parts; Section 198B(8)(a) which
applies to
employees employed in
terms of a fixed term contract for longer than three months and
Section 198B(8)(b), a transitional provision.
[20]
The transitional provision
[12]
suspends the operation of Section 198B(8)(a) for a period of three
months for fixed term employment contracts that were concluded
before
the commencement of the amendment. Secondly,
a clear indication by the legislature that Section 198B(8)(a)
applies
to fixed term contracts of employment entered into before the
commencement of the LRA, 2014.
[21]
Thus, Section 198B(8)(a) of the LRA was suspended from 1 January 2015
until 31 March for fixed term employment contracts concluded
before
1 January 2015.
[22]
It stands to reason that the fixed term contracts referred to in
Section 198B(8)(b) should endure for longer than three months
in
order to avoid an absurdity
[13]
.
[23]
Consequently, Section 198B(8)(a) applies from 1 April 2015 to fixed
term employment contracts concluded before 1 January 2015.
[24]
The fourth to eighth respondents concluded fixed term employment
contracts with the applicant before 1 January 2015 and the
contracts
were to terminate after 31 March 2015. Thus, these contracts fall
within the time periods of Section 198B(8)(b) and Section
198B(8)(a)
applies to these respondents.
The
second ground of review
[25]
The second ground of review is that the phrase “
not
be treated less favourably”
contained in Section 198B(8)(a) cannot be equated to permanent
employment.
[26]
The Commissioner incorrectly relied on Section 198B(3) of the LRA to
regard the contracts of the fourth to eighth respondents
to be for an
indefinite
duration”
[14]
as these contracts would have terminated after 31 March 2015
.
[27]
The first respondent’s Counsel submitted that the Commissioner
erred in this regard but reached a reasonable conclusion
nonetheless.
[28]
I agree with the first respondent’s Counsel that the
Commissioner misplaced Section 198B(5) dealing with the deeming
of a
contract of indefinite duration for Section 198B(3).
[29]
Further, the Commissioner did not rely on Section 198B(8)(a) that
contains the phrase “
not be treated
less favourably”
in order to arrive at the
conclusion in the award.
[30]
The basis of the Commissioner’s reasoning does not equate to
the Commissioner
failing
to apply the mind, taking into account irrelevant considerations,
ignoring relevant considerations, acting for an ulterior
purpose, in
bad faith, arbitrarily or capriciously. Therefore, the Commissioner’s
misplaced reliance
is
neither latently nor manifestly unlawful
and does not amount to a reviewable irregularity.
[15]
The award is a
decision
that another reasonable decision-maker could reach.
[16]
[31]
In light of this conclusion, there is no need to consider a
definition for the phrase in question.
Costs
[32]
The approach to costs in
National
Union of Mine Workers v East Rand Gold and Uranium Company Ltd
[17]
that
costs follow the result is a factor to be taken into account but not
determinative in awarding costs.
[33]
In
Biowatch
Trust v Registrar Genetic Resources and Others
[18]
the
Constitutional Court took into account exceptions to the general rule
to costs which would encourage parties to assert rights.
The
Constitutional Court took into account the impact of the judgment on
other institutions, enriching the general body of jurisprudence,
adding to the texture of living in a constitutional democracy and
that the State should be shielded of costs from manifestly
inappropriate
or frivolous actions.
[34]
In the premises, the following order is made:
Order
1.
The application is dismissed.
2.
Each party is to pay its own costs.
______________
Y
F Saloojee
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
P Maserumule of Maserumule
Attorneys
For
the respondent:
C Watt-Pringle SC
Instructed
by :
Brett Purdon Attorneys
[1]
Act. 66 of 1995
[2]
(1)
For the purpose of this section, a “fixed term contract”
means a contract
of
employment
that terminates on—
(a)
the occurrence of a specified event;
(b)
the completion of a specified task or project; or
(c)
a fixed date, other than an employee’s normal or
agreed
retirement age, subject to subsection (3).
(2)
This section does not apply to—
(a)
employees earning in excess of the threshold prescribed by
the Minister in
terms of section 6 (3) of
the Basic Conditions of Employment Act;
(b)
an employer that employs less than 10 employees, or that
employs
less than 50 employees and whose business has been
in operation for less than two years, unless—
(i)
the employer conducts more than one business; or
(ii)
the business was formed by the division or dissolution for any
reason of
an existing business; and
(c)
an employee employed in terms of a fixed term contract
which
is permitted by any statute, sectoral determination
or collective agreement.
(3)
An employer may employ an employee on a fixed term
contract or successive
fixed term contracts for longer than three
months of employment only if—
(a)
the nature of the work for which the employee is employed
is of a limited or definite duration; or
(b)
the employer can demonstrate any other justifiable reason for fixing
the term
of the contract.
(4)
Without limiting the generality of subsection (3), the
conclusion of a fixed
term contract will be justified if
the employee—
(a)
is replacing another employee who is temporarily absent
from
work;
(b)
is employed on account of a temporary increase in the volume of work
which
is not expected to endure beyond 12 months;
(c)
is a student or recent graduate who is employed for the purpose of
being
trained or gaining work experience in order to enter a job or
profession;
(d)
is employed to work exclusively on a specific project that has a
limited or
defined duration;
(e)
is a non-citizen who has been granted a work permit for a defined
period;
(f)
is employed to perform seasonal work;
(g)
is employed for the purpose of an official public works scheme or
similar
public job creation scheme;
(h)
is employed in a position which is funded by an external source for
a limited period; or
(i)
has reached the normal or agreed retirement age applicable in the
employer’s business.
(5)
Employment in terms of a fixed term contract concluded or
renewed in contravention
of subsection (3) is deemed to be
of indefinite duration.
(6)
An offer to employ an employee on a fixed term contract or
to renew or
extend a fixed term contract, must—
(a)
be in writing; and
(b)
state the reasons contemplated in subsection (3) (a) or (b).
(7)
If it is relevant in any proceedings, an employer must prove that
there was a justifiable
reason for fixing the term of the contract
as contemplated in subsection (3) and that the term was
agreed.
(8)
(a) An employee employed
in
terms of a fixed term contract for longer
than three months must
not be treated less favourably than an employee employed
on a permanent basis performing the
same or similar work, unless
there is a justifiable reason for different treatment.
(b)
Paragraph (a)
applies,
three months after the commencement of the Labour Relations
Amendment Act, 2014, to fixed term contracts of employment
entered
into before the commencement of the Labour Relations Amendment Act,
2014.
(9)
As from the commencement of the Labour Relations Amendment Act,
2014, an employer
must provide an employee employed in
terms of a fixed term contract and an employee employed on
a permanent
basis with equal access to opportunities to apply for
vacancies.
(10)
(a) An employer who
employs an employee in
terms of a fixed term
contract
for a reason contemplated in subsection (4) (d) for a
period exceeding 24 months must, subject to the
terms of any
applicable collective agreement, pay the employee on
expiry of the contract one week’s
remuneration for each
completed year of the contract calculated in accordance with section
35 of the Basic Conditions
of Employment Act.
(b)
An employee employed in terms of a fixed-term contract, as
contemplated
in paragraph (a), before the commencement of
the Labour Relations Amendment Act, 2014, is entitled to the
remuneration
contemplated in paragraph (a) in respect of
any period worked after the commencement of the said Act.
(11)
An employee is not entitled to payment in terms
of subsection (10) if,
prior to the expiry of the fixed
term contract, the employer offers the employee employment
or procures employment
for the employee with a different
employer, which commences at the expiry of the contract and on the
same or similar
terms.
[3]
“
Interpretation
of this Act
Any
person applying this Act must interpret its provisions—
(a)
to give effect to its primary objects;
(b)
in compliance with the Constitution; and
(c)
in compliance with the public international law obligations of the
Republic.”
[4]
2012
(4) SA 593
(SCA)
at
para 18-19
[5]
2016
(4) BCLR 335
(CC)
at
para
.
100
to 101
[6]
[2016]
10 BLLR 999
(LAC)
at
para. 15
[7]
Novartis
SA
(
Pty
)
Ltd
v Maphil Trading
(
Pty
)
Ltd
2016 (1) SA 518
(SCA)
at para [29]
[also
reported at
[2015] 4 All SA 417
(SCA)
– Ed];
KPMG
Chartered Accountants SA v Security Ltd and
another
2009 (4) SA 399
(SCA)
at para [39] [reported as
KPMG
Chartered Accountants v Securefin Ltd and another
[2009]
2 All SA 523
(SCA)
– Ed];
2012 (4) SA 593
(SCA)
at para [18] [
sic
]
[8]
1952
(2) SA 577
(A) at 580 B-C
[9]
1956
(2) SA 365
(A) at 372H – 373 A
[10]
1978
(1) SA 1109
(A)
at
1148 F-G
[11]
at
page 321, 1995 Edition
[12]
Section
198B(8)(b)
[13]
S
v Acting Regional Magistrate, Boksburg
2012 (1) BCLR 5
(CC) at par 22:
“
In
light of these objects stated within the four corners of the Act
itself, it is impossible
to interpret the
provisions to render any sexual incapable of prosecution. In
New
Clicks
, this Court approved the rule laid down in Venter v R,
that a court may depart from the clear language of a statute where
it:
“…
would
lead to absurdity so glaring that it could never have been
contemplated by the legislature, or where it would lead to a
result
contrary to the intention of the legislature, as shown by the
context or by such other considerations as the Court is
justified in
taking into account.”
[14]
Para.
48 and 49 of the award
[15]
Head of
the Department of Education v Mofokeng and others
[2015] 1 BLLR 50
(LAC) at para. 30-31
[16]
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2007]
12 BLLR 1097
(CC)
at para. 110
[17]
[1991]
ZASCA 168
;
1992 (1) SA 700
(A)
This
approach has been endorsed by this Court in several decisions see
for example
Callguard
Security Services (Pty) Limited v TGWU and Others
[1997] 4 BLLR 392
(LC) at 399-402;
South
African Airways Technical (SOC) Ltd v South African Transport and
Allied Workers Union and Another
[2014] 5 BLLR 491
(LC) at para 22.
[18]
2009 (10) BCLR 1014
(CC) at para. 23