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[2017] ZALCJHB 428
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Appels v Education Labour Relations and Others (J2264/17) [2017] ZALCJHB 428; (2018) 39 ILJ 816 (LC) (7 November 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE
NO: J 2264/17
In
the matter between:
LEON
LOGAN APPELS
Applicant
And
EDUCATION
LABOUR RELATIONS
First Respondent
NORTH
WEST DEPARTMENT OF
EDUCATION
AND SPORT DEVELOPMENT
Second Respondent
SOUTH
AFRICAN DEMOCRATIC
TEACHERS
UNION
Third
Respondent
NATIONAL
PROFESSIONAL TEACHERS’
ASSOCIATIONS
OF SOUTH AFRICA
Fourth Respondent
SUID-AFRIKAANSE
ONDERWYSUNIE
Fifth Respondent
NATIONAL
TEACHER’S
UNION
Sixth Respondent
PROFESSIONAL
EDUCATOR’S UNION
Seventh Respondent
PUBLIC
SERVANT’S ASSOCIATION
Eighth
Respondent
HEALTH
AND OTHER SERVICE PERSONNEL
TRADE
UNION OF SOUTH
AFRCIA
Ninth Respondent
DR.A.D
ABDOOL
Tenth Respondent
THE
REGISTRAR OF LABOUR RELATIONS
Eleventh Respondent
Application
heard: 31 October 2017
Judgment
delivered: 7 November 2017
JUDGMENT
VAN
NIEKERK J
[1]
The question to be answered in this case is whether a bargaining
council is entitled to vary a time limit for the referral of
a
dispute where that time limit is fixed by the Labour Relations Act.
[2]
Section 191(1) (a) of the LRA provides that any person who claims
that his or her employer has committed an unfair labour practice
may
refer a dispute to a bargaining council (or to the CCMA, if there is
no bargaining council that has jurisdiction). Paragraph
(b) states
that the referral must be made within 90 days of the act or omission
which is alleged to constitute the unfair labour
practice, or if it
is a later date, within 90 days on which the employee became aware of
the act or occurrence.
[3]
The applicant, Mr. Appels, is currently employed at the Alabama
School in Klerksdorp. During late 2016, he unsuccessfully applied
for
appointment to the vacant post of principal at the school. Appels
took the view that the failure to appoint him was an unfair
labour
practice. He lodges a grievance, which was heard by the district
review panel during February 2017. On 9 March 2017, Appels
was
advised that the panel had upheld the appointment of the successful
candidate.
[4]
Appels referred a dispute to the bargaining council on 30 May 2017,
within the 90-day period established by s 191 (1). The bargaining
council said that his referral was defective because in terms of the
council’s constitution, all disputes about promotion
had to be
referred within 30 days of the date of which the employee became
aware of the employer’s final decision not to
promote the
employee. The referral had been made about 82 days after Appels
had become aware of the review panel’s
decision. The council
advised Appels to apply for condonation for the late referral.
[5]
After consulting his attorney, Appels disputed that the council’s
dispute resolution procedure could lawfully override
a time limit
established by the LRA. He refused to apply for condonation for the
late referral of his dispute, because given the
time limits
established by the LRA, he did not believe that it had been referred
late. The council refused to accept the referral
without an
application for condonation, because in terms of its constitution,
the referral had been made out of time. That
impasse is what
these proceedings are about.
[6]
The relevant statutory provisions are to be found in s 51 of the LRA,
a section dealing with the dispute resolution functions
of bargaining
councils. Section 51 (9) of the LRA reads as follows:
A
bargaining council may, by collective agreement –
(a)
establish
procedures to resolve any dispute contemplated in this section; …
Disputes contemplated in the section
include unfair labour practice disputes, the kind of dispute that is
at issue in this case.
Section 51(9) needs to be read with s 28
(1) which, amongst other things, empowers a bargaining council within
its registered
scope to conclude and enforce collective agreements,
prevent and resolve labour disputes, and perform the dispute
resolution functions
referred to in s 51.
[7]
The bargaining council’s constitution, which the parties
acknowledge is a collective agreement between the parties to
the
council, incorporates a dispute resolution procedure. The procedure
was adopted in August 2016. Clause 7.3 refers specifically
to
disputes about promotions and provides that a party to a dispute may
refer the dispute for conciliation-arbitration when the
head of
department has made a decision about the promotion, that the general
secretary must set down the dispute for arbitration
within 30 days of
the referral on an expedited basis where that is decided and a
requirement that the process be completed within
a maximum of three
hearings. Clause 9 regulates the time periods within which a dispute
must be referred. The clause mirrors s
191 of the LRA, except in the
case of what is referred to as ‘promotions’. Clause 9.1.3
reads:
9.1
A party may refer a dispute to the General Secretary:…
9.1.3
In the case of promotions, within 30 days from the date on which the
employee became aware of the employer’s final decision
not to
promote the employee’.
[8]
The bargaining council submits that properly read, these provisions
permit a councils to design their own dispute resolution
systems that
ensure the efficient and cost effective resolution and prevention of
disputes. In doing so, the council may deviate
from the time periods
fixed by the LRA, and s 191 of the LRA in particular. The rationale
for reducing the 90-day time limit in
s 191 to 30 days is concerned
with the need to ensure expeditious dispute resolution. It is not
disputed that during the course
of the last year, 225 disputes about
promotion were referred to the council. (In the previous year, 248
disputes were referred.)
The council submits that it is in the
interests of learners and all other interested parties that disputes
about promotion are
resolved as quickly as possible. A dispute about
promotion presupposes a vacancy that must be filled. Any failure to
fill the vacancy
pending the resolution of a dispute about who should
be appointed to the post has obvious consequences for the quality of
teaching.
Further, successful appointees often have to relocate to
occupy the new positions. An unresolved dispute always has the
potential
for the reversal of an appointment and the obvious
prejudice to the incumbent in the form of a reversal of salary and
even relocation.
Where the initially successful incumbent is required
to revert to his or her previous position, very often another person
has been
appointed to that position resulting in a domino effect. In
short, the purpose of the expedited procedure that applies to
promotion
disputes is to limit and if possible avoid all of these
consequences.
[9]
Appels takes a different view. He emphasises that clause 9.1.3 does
more than establish a simple procedural bar to the reference
of
disputes after the expiry of the 30-day period. He submits that
clause 9.1.3 also determines jurisdiction in the sense that
it places
a limitation on the power or competence of the bargaining council to
hear and determine issues between parties. In this
sense, clause
9.1.3 of the dispute resolution procedure extinguishes a referring
party’s right to refer an unfair labour
practice dispute
relating to promotion within the 90-day period established by s 191.
Appels also argues that bargaining councils
are creatures of statute
and that the rules they make governing dispute resolution should not
be in conflict or inconsistent with
the LRA. He makes reference to
Premier Gauteng and another v Ramabulana N.O and others
[2008]
4 BLLR 299
(LAC) in support of this proposition. That case dealt with
rules for the conduct of proceedings made by the CCMA, and can thus
be distinguished from the present case, which concerns the
application of statutory provisions that relate specifically to
bargaining
councils and their right to design dispute resolution
procedures by way of collective agreements.
[10]
In my view, there are at least two reasons why Appel should not
succeed. The first is that Appel is indirectly a party to and
bound
by the collective agreement that contains clause 9.1.3. It is not
disputed that Appels is a member of a trade union that
is a party to
the council, and also a party to the collective agreement that
incorporates clause 9.1.3. In terms of s 23 (1) of
the LRA, a
collective agreement binds the parties to the collective agreement
and each party to the agreement and the members of
every other party,
in so far as the provisions are applicable between them. Further,
members of the registered trade union there
is a party to the
collective agreement about by the agreement if the agreement
regulates the terms and conditions of employment
or the conduct of
employers in relation to their employees or of employees in relation
to their employers. As a member of a union
party to the agreement,
Appels is therefore bound by the collective agreement that regulates
dispute resolution procedures. In
these circumstances, it is not open
to him to contend, as he has, that clause 9.1.3 of the agreement is
of no force and effect.
In short, the 30-day period within which
promotion disputes must be referred is an agreed period, and Appels
is bound by that agreement.
[11]
Even if I am wrong in coming to that conclusion and accept that
Appels is entitled to challenge the terms of the agreement
despite
the fact that he is bound by it (if only because clause 9.1.3 stands
in conflict with s 191 (1) (b) (ii) of the LRA), the
key to a proper
interpretation of s 51 (9) of the LRA is an understanding of the role
of bargaining councils in the statutory dispute
resolution system.
Bargaining councils are voluntary bodies and operate according to the
principles of self-regulation and autonomy.
Having said that,
bargaining councils are creatures of statute and may act only within
the confines of the empowering legislation.
The question to ask is
whether s 51 (9), which clearly empowers bargaining councils to
‘establish procedures to resolve any
dispute…’,
must be read subject to a condition that any agreed procedure must
replicate time periods and any other
limitations as they find
reflection in the LRA. There is nothing in the LRA that establishes
such a condition, or which otherwise
places constraints on a
bargaining council that agrees to establish dispute resolution
procedures. On the contrary, there is at
least one authority to
support the proposition that bargaining councils may establish
procedures that differ from those established
by the LRA.
[12]
In
MIBCO v Osborne & others
[2003] 6 BLLR 573
(LC),
Landman J in the case that concerned the enforcement of arbitration
awards issued by bargaining council arbitrators, considered
s 51 (8)
and (9). Section 51 (8) provides that unless otherwise agreed to the
collective agreement, sections 142A and 143 to 146
applied to any
arbitration conducted under the auspices of a bargaining council. In
the course of his judgment (at 577B), Landman
J said the following:
However, section 51 (9) permits a
bargaining council to exclude the operation of the LRA in the
circumstances contemplated in that
subsection, by establishing its
own procedures by means of a collective agreement, which obviously
can be extended to non-parties.
The collective agreement, such as
those to which I have referred in this judgement, circumvent the
operation of the LRA.
[13]
In
Wanenburg v Motor Industry Bargaining Council & others
(2001) 22
ILJ
242 (LC), Pillay J considered a dispute that
concerned a bargaining council procedure for applying for condonation
and appealing
against any refusal of condonation that different from
what is provided in the LRA. The court held that it did not matter
that
the referring party was not a party to a dispute resolution
agreement concluded by a bargaining council, or that not been
extended
to him. The court said the following in relation to the
right of bargaining councils to design dispute resolution systems:
[20]
Bargaining councils may design their own dispute systems in ways that
ensure efficient and cost
effect (sic) resolution and prevention of
disputes. From the DRC terms of reference and procedures, there is
nothing inherently
prejudicial to nonparties. It provides a procedure
for conciliation and arbitration of disputes and for granting
combinations.
It is consistent with the LRA. There is therefore no
reason for the court to interfere by imposing any other procedure.
[21] in
the circumstances the DRC terms of reference and procedures can be
applied to nonparties not
as a collective agreement but as a
procedure developed by the bargaining council for the industry in
order to give effect to its
obligations in terms of ss 51 (3) and 191
(2) in order to carry out its functions in terms of s 28 (1) (c) and
(d)….
[23]
Firstly, bargaining councils must be allowed the flexibility to
design their own dispute systems
so that the most inexpensive and
effective procedures are adopted. If that means having a condonation
application followed by an
internal appeal, so be it. Even if the NRA
makes no express provision for such an appeal, it would be consistent
with the general
policy of encouraging maximum use of private and
internal dispute resolution mechanisms and the settlement of disputes
at the lowest
possible level.
[14]
In
Portnet v Le Grange & others
(1999) 20
ILJ
916
(LC), the court was concerned with an application to review and set
aside an arbitration award in which the arbitrator had held
that the
provisions of a bargaining council constitution binding on the
parties, they are superseded by the provisions of s 191
(2) of the
LRA. Further, the arbitrator held at the mere fact that the
constitution was binding on the parties did not necessarily
mean that
any failure to comply with any provision of the agreement
automatically disqualifies a referral and makes it incompetent
in
terms of the act. In that case, the referral was a week late if the
constitution applied, but referred in time if s 191 applied.
The
court upheld the review, concluding that the arbitrator had
misdirected himself in regard to the law. In particular, the
provisions
of s 51 of the Act which requires parties to a council to
attempt to resolve any dispute between them in accordance with the
constitution
of the council. Since the parties were all parties to
the bargaining council and subject to its constitution the court
concluded
as follows:
[19]
There was accordingly no basis in law for the first respondent to
find that he was not bound
by the provisions of the bargaining
council’s constitution which, in itself, also constituted a
collective agreement.
[20]
Collective agreements and the provisions thereof are binding in terms
of the Act as the arbitrator
himself admits. Further, s 1 of the act
(which deals with the purpose of the act) identifies as one of the
primary objects of the
Act the promotion of orderly collective
bargaining.
[15]
There is a further authority that suggests that primacy should be
given to collective agreements concluded in bargaining councils
that
regulate dispute resolution. In
NBCRFI v Carlbank Mining Contracts
(Pty) Ltd
[2012] 11 BLLR 1110
(LAC), the Labour Appeal Court
emphasised the primacy of collective agreements concluded in
bargaining councils and declined to
give effect to a contract of
employment that made provision for private arbitration in the event
of a dispute. In short, s 51 empowers
bargaining councils to
establish procedures to resolve disputes and in doing so, to design
their own procedures that address the
exigencies of the sector for
which they are registered and to ensure efficient and cost effective
dispute resolution. These procedures
may deviate from those
established by the LRA.
[16]
Obviously, a bargaining council is not at liberty, when it
establishes procedures to resolve disputes, act without constraint.
The bargaining council in the present instance accepts that any
procedures established by a council pursuant to s 51 (9) must be
fair, reasonable and broadly consistent with the LRA. Decisions taken
by bargaining councils are subject to judicial review, if
not in
terms of the Promotion of Administrative Justice Act, then by way of
a review in terms of the principle of legality (see
Free
Market Foundation v Minister of Labour and others
[2016] 8 BLLR 805
(GP)) ). This will ensure that procedures are
rational, not arbitrary and free from caprice or ulterior purpose.
The reasons proffered
by the bargaining council for truncating the
periods within which promotion disputes must be referred are
obviously rational, intended
as they are to serve the legitimate ends
of minimising disruptions to learning and the expeditious resolution
of disputes. Further,
a referring party who fails to comply with the
applicable time limit has a remedy in the form of an application for
condonation.
Rulings in these applications are similarly subject to
review.
[17]
In relation to costs, the scope is a broad discretion in terms of s
162 of the LRA to make orders for costs according to the
requirements
of the law and fairness. This court traditionally does not make
orders for costs against individuals who in good faith
seek to pursue
what they perceive as their rights. There is no reason to depart from
that convention. The requirements of the law
and fairness are best
served by an order that each party bear its own costs. Finally, the
court’s finding in relation to
the applicable time period for
the referral of a dispute should not serve to non-suit Appels. I
intend before to make an order
in terms of which he may file an
application for condonation for the late referral of his dispute
within a specified period.
I
make the following order:
1.
The application is dismissed.
2.
The applicant is granted 14 days from the
date of this order to apply to the first respondent for condonation
for the late referral
of his dispute.
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr. W Scholtz, Scholtz Attorneys
For
the first respondent: Adv. M van As, instructed by SolomonHolmes
Attorneys