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[2017] ZALCCT 67
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MEC of the Western Cape Provincial Government Health Department v Coetzee and Others (C276/17) [2017] ZALCCT 67 (30 November 2017)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
C276/17
In
the matter between:
THE
MEC OF THE WESTERN CAPE PROVINCIAL
GOVERNMENT
HEALTH DEPARTMENT
Applicant
and
PROFESSOR
COETZEE
AND
49 OTHERS
First to
Fifty
Ninth
Respondents
UNIVERSITY
OF CAPE TOWN
AND
OTHERS
Fifty
Second to Fifty Seventh Respondents
Heard
:
8 November 2017.
Delivered:
30 November 2017
Summary:
An application to review a demarcation award. In demarcation
disputes, the CCMA performs a privileged
task, which given the manner
it is performed becomes difficult to review and set aside. The
provisions of section 62 of the LRA
considered and applied. The
review test for section 24 disputes remains that of a reasonable
decision maker. Held: (1) The review
application is dismissed. Held:
(2) The applicant to pay the costs of the application.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This dispute has a chequered
past that spurns a period of over a number of years. It served before
two judges of this Court as well
as the Labour Appeal Court. It is an
application to review and set aside a demarcation award issued by
Commissioner Wilson. In
terms of that award, the commissioner found
that Professor Coetzee (Coetzee) and 49 others are employees within
the public service
and fall within the jurisdiction of the Public
Health and Social Development Sector Bargaining Council (The Health
Council). He
further found that the Scare Skills Allowance provided
for in Agreement
[1]
(The collective agreement) of the Health Council is applicable to
Coetzee and others who are entitled to receive the allowance
for the
period 1 July 2003 to 30 June 2009 together with interest. The
application is opposed by Coetzee and 49 others only. The
other
respondents would abide by the Court’s decision.
Background
facts
[2]
The
onset of this dispute is the conclusion of a collective agreement on
28 January 2004. In terms of that collective agreement
certain
employees were to be paid what was termed a Scare Skills Allowance.
Coetzee and others were appointed by the University
of Cape Town and
the University of Stellenbosch respectively. As far back as 1967, the
Universities and the then Administration
of the Province of the Cape
of Good Hope entered into an agreement known as the joint staff
agreement. The agreement regulated
a number of aspects. Broadly, it
provided for staff to be appointed to serve both the Universities and
the Administration. The
applicant contended that because of clause
9
[2]
of this agreement Coetzee and others were appointed under the
conditions of service of the Universities and therefore not Public
Servants.
[3]
Suffice
to mention that in terms of the agreement, appointment of joint staff
is done with the approval of another.
[3]
It is common cause that Coetzee and others performed clinical
services to Academic hospitals, which hospitals fall under the
control
of the applicant. Pursuant to the conclusion of the
collective agreement, Coetzee and others staked a claim that since
they are
covered by the collective agreement, they are entitled to
the allowance arising therefrom. Since that stake, the parties were
in
perennial litigation over the issue. After a sojourn to this Court
and to the Labour Appeal Court (LAC), the parties found themselves
before the Commission for Conciliation, Mediation and Arbitration
(CCMA).
[4]
At
the CCMA, the issue was about a demarcation dispute. However, there
was a further referral in terms of section 24 of the Labour
Relations
Act
[4]
.(LRA)
The two disputes were consolidated to be heard together. They were
indeed heard together. The award under attack deals with
the two
disputes, however the award is conveniently referred to as the
‘Demarcation Award’.
[5]
[5]
The applicant was aggrieved by this award
and it instituted the present proceedings on 10 August 2017. Due to
the history of this
matter, the application was enrolled on an
expedited basis. On 8 November 2017, the matter came before me. I
must state that argument
was listened to way beyond the ordinary
court hours.
Grounds
of Review
[6]
Perusal
of the founding affidavit reveals that the applicant contends that
many of the findings by the commissioner are wrong in
law.
Effectively the ground is that of error in law. In argument, Mr
Oosthuizen SC, appearing for the applicant placed reliance
on the LAC
judgment
[6]
.
He specifically placed reliance on the following paragraph:
‘
[22]
To recap, Navsa AJ said in
Sidumo
at par 105 that the review powers in terms of section 145 ‘must
be read to ensure that administrative action by the CCMA
is lawful,
reasonable and procedurally fair. Given that the section must be
interpreted to be in compliance with the Constitution,
it would
appear that the concept of error of law is relevant to the review of
an arbitrator’s decision within the context
of the factual
matrix as presented in the present dispute;
that
is a material error of law committed by an arbitrator may, on its own
without having to apply the exact formulation set out
in
Sidumo
,
justify a review and setting aside of the award
depending on the facts as established in the particular case.
[23]
However, for reasons which are advanced below, it is not strictly
necessary for this court to
make a final decision with regard to the
role of error of law in this case.’ [My own Emphasis]
[7]
So before me there was only one ground of
review, that is that, the commissioner committed an error of law. In
argument, Mr Oosthuizen
clarified the error of law to be in respect
of three issues which can be summarized thus:
7.1
The entire dispute was about terms and
conditions of employment. The finding that Coetzee and others were
public servants was a
material error in law.
7.2
In extending the terms and conditions of
the public servants to the University employees, the commissioner
committed an error of
law.
7.3
Extending the collective agreement to
parties falling outside the registered scope of the Health Council
constitutes an error of
law.
Argument
[8]
Both
parties filed very extensive and well researched heads of argument.
Both heads ran into several pages. In addition, applicant’s
counsel made reference to authorities dealing with the definition of
an employee. He submitted that
SA
Municipal Workers Union v SA Local Government Bargaining Council and
Others
[7]
,
is not authority for the proposition that a court may, because it is
fair to do so, extend the registered scope of a bargaining
council,
or ignore the very clear provisions of sections 35, 36 and 37 of the
LRA which stipulates that bargaining councils in
the Public service
exercise their function within the Public service. He further
submitted that nonetheless, the fact that the
Professors were
employed on the terms and conditions of the Universities does not
yield unfairness. They could negotiate the terms
applicable to the
Public servants. The bulk of the applicant’s heads of argument
deal with the provisions of the Public Services
Act
[8]
(PSA) and the Regulations juxtaposed with some of the provisions of
the LRA dealing with bargaining councils and the powers thereof.
A
considerable effort was placed on interpreting the 1967 agreement.
However, the applicant’s submission simply suggests
that the
commissioner performed his task wrongly. According to the applicant’s
counsel, since Coetzee and others were appointed
on the conditions of
services of the Universities, they cannot be held to be employees of
the Department of Health. Holding otherwise
constitutes a material
error of law which vitiates the award.
[9]
Further
issues argued related to the furnishing of security and the
interpretation of the provisions of sections 145(7) and (8)
of the
LRA, the issue of the legality of the writ of execution and the
payment of interest aspect. Given the view, I take that
at the end,
it is not necessary to decide these issues. Suffice to mention that
in my view, the furnishing of security issue has
been overtaken by
events. On the issue of the legality of the writ, Mr. Stelzner SC
appearing for Coetzee and others conceded that
should the need arise
to have the writ re-issued there will be compliance with the
procedural requirements of the State Liability
Act
[9]
,
therefore, it is not necessary to determine this issue. I shall later
on briefly deal with the issue of the payment of interest
argument.
Evaluation
[10]
Much as the
parties made this matter to look complicated, to my mind this is but
one of the run of the mill reviews occasionally
dealt with in this
Court. As correctly submitted by Mr. Oosthuizen SC a demarcation
award is just another arbitration award. The
commissioner correctly
identified the issue in dispute as one involving whether Coetzee and
others fall within the jurisdiction
of the Health Council and are
subject to the collective agreement. To steal from the
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
[10]
judgment, that was the principal issue. To my mind that principal
issue was dealt with and both parties were afforded a fair
opportunity
to deal with the principal issue.
[11]
At issue here are the provisions of section 62 of
the LRA. The section affords the commission a special privilege as it
were to
determine for the parties whether any employee, employer,
class of employees or class of employers, is or was employed or
engaged
in a sector or area. In addition to also determine whether
any provision in any collective agreement is or was binding.
[12]
The task of a commissioner appointed within the
context of this section is a very simple one. What he or she has to
determine is
whether there is employment and or engagement in a
sector. The LRA does not define the word employed or engaged.
However, section
213, provides a definition for an employee. It
defines an employee thus:
‘
Employee
means-
(a)
Any
person, excluding an independent contractor, who works for another
person or for the State and who receives, or is entitled
to receive,
any remuneration, and
(b)
Any
other person who in any manner assists in carrying on or conducting
the business of an employer,
And
“employed
” and “employment” have
meanings corresponding to that of “employee”.’. [My
underlining]
[13]
Therefore, where the word employed is used by the
legislature, it must mean working for another person or the State and
assisting
in any manner. Accordingly, the commissioner was required
to determine whether Coetzee and others were working or assisting the
applicant.
[14]
In his award, he recorded that it was common cause
that Coetzee and others are employed in provincial hospitals, and at
least part
of their duties (the clinical duties at least) are
performed for and on behalf of the Department of Health. At first the
applicant’s
counsel submitted that the recordal is wrong as the
issue was not common cause. He watered down the submission to be that
although
it is not disputed that they performed clinical duties at
the provincial hospital they did so consequent upon the 1967
agreement
under the terms and conditions of service of the
Universities.
[15]
In all
honesty, I fail to understand this watered down submission. Fact is
that Coetzee and others performed duties whether under
whose
conditions of employment, such is of no moment. The question whether
one was employed is one of fact. If for any reason,
Coetzee and
others were not employed then they must have been engaged. The
dictionary meaning of the word engaged is ‘employed,
occupied,
or busy, to become involved with, do or take part in something’
[11]
.
[16]
Given the
joint staff agreement, it must follow that Coetzee and others were
employed or engaged with the Department
[12]
.
I find no basis upon which it can be said that Coetzee and them were
not employed or better still engaged in the applicant’s
hospitals. There can be no doubt that the teaching hospitals fall
under the Public sector. In fact, I did not understand Mr. Oosthuizen
SC to be at odds with such a patently clear fact. The whole exercise
of looking at the provisions of the PSA was and is not necessary.
One
is not to determine whether there is a legal or lawful employment. It
was never contended before me that the engagement or
employment of
Coetzee and others was in any manner or form unlawful. Whether
Coetzee and others were on the fixed establishment
or not is also of
no moment. If they work or assist, that’s enough for the
purposes of section 62.
[17]
On the common cause facts, the (a) part of the
section has been established. That much Mr. Oosthuizen SC conceded.
He argued that
the real bone of contention is the (b) part of the
section. Truly the (b) part is not difficult to deal with in the
context of
the factual matrix of this matter. What ought to be
determined was whether the collective agreement was binding on
Coetzee and
others. In terms of section 23(1)(d) of the LRA, a
collective agreement binds employees who are not members of the
registered trade
union or trade unions party to the agreement if the
employees are identified in the agreement, expressly binding on them
and the
union party or parties that are in the majority. The
collective agreement is specific; it binds employees in the Public
Health
Sector as managed by the health employer or those who fall in
the registered scope of the Health Council. Coetzee and others are
in
that sector.
[18]
To my mind
the above concludes the statutory functions of the commissioner
within the contemplation of section 62. Reading of the
award suggests
that he did all of the above. Therefore, it can hardly be said that
he performed his task wrongly. Any argument
that the commissioner
committed an error of law is without merit. To my mind even if the
commissioner committed an error that Coetzee
and others were Public
servants when they are not, such an error is immaterial taking into
account that what is required is for
them to work, assist, be busy,
be involved or take part at the provincial hospitals to bring them to
the fold. Mere errors of law
are not enough to vitiate an award;
something more is required.
[13]
[19]
The test for
review of a demarcation award remains that of a reasonable
commissioner enunciated in
Sidumo
and Another v Rustenburg Platinum mine
[14]
.
As I have pointed out above the task is a privileged one. In a normal
arbitration, a commissioner resolves a dispute, be it of
alleged
unfair labour practice or alleged unfair dismissal. In a demarcation
award, a commissioner determines or hears an application.
In doing
so, hearing or determining the application, the legislature allows a
commissioner to adopt the procedure contemplated
in section 138
applicable to a normal arbitration.
[15]
A commissioner is obliged to call for representations of non-parties
and to consult NEDLAC.
[20]
Given what
may potentially find itself in the award, I agree with Mr. Stelzner
SC, that it may be an uphill to seek a review against
a demarcation
award. In the procedure contemplated in section 138, the commissioner
retains a discretion to allow parties to lead
evidence, call
witnesses and allow questioning. In a demarcation process, if a
believe is formed by a commissioner that the question
to be
determined is of substantial importance, the application will go
public and invite representations not from the parties before
him or
her but from outsiders.
[16]
He is obliged to consider those representations.
[21]
Clearly, much as I agree that a demarcation award
is just another award, it is an award
sui
generis
. What a reviewing court has to
contend with is not only the reasoning of the arbitrator but the
representations by non-parties
and the views of NEDLAC. For that
reasons it becomes extremely difficult to suggest that a reasonable
commissioner would ignore
and or reject a representation or a view of
NEDLAC. To do so a reviewing court would be limiting statutory
functions inappropriately
in my view.
[22]
Therefore,
the task of a reviewing court seems to be very limited. As pointed
out earlier, the question in (a) is more factual than
legal. The
question in (b) simply requires an interpretation of the collective
agreement to solely determine the question whether
the collective
agreement is binding on employees. In
Coin
Security (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[17]
,
Francis
J said the following:
‘
[56]
The question whether an employer is engaged in a particular trade or
industry is one of fact to be
decided in the light of all the
surrounding circumstances and having regard to any relevant evidence
which is put before the court.’
[23]
In
Coin
Security
,
Francis J accepted the method to determine whether a class of
employees are engaged in a particular industry as summarized by
Jansen J in
Greatex
Knitwear(Pty) Ltd v Viljoen
[18]
.
Fortunately, in
casu
there was no need to apply any method. Parties were
ad
idem
that
the sector is one in the Public Sector covered in the collective
agreement. The only issue that required determination was
whether
Coetzee and others are employed or engaged in that sector or not.
Therefore, his task did not require consideration of
various
available methods discussed in
Coin
Security
[19]
.
All he needed to do and did was to have regard to the definitions in
the LRA. Without overly belabouring the point, Coetzee and
others
were employees of the Department of Health.
[24]
Turning to
the interpretation and application dispute referred in terms of
section 24, the task of the commissioner is yet again
a simple one.
To my mind this task is performable even under section 62(b).
Nonetheless, it seems the parties
ex
abudandi cautela
had to refer a section 24 dispute. One can understand this position
given the ping pong that characterized this dispute. At paragraphs
65
to 69 of the award it is plain that the commissioner performed his
task. In
SAMWU
v SALGBC and others
[20]
,
the
LAC per Mlambo JP, writing for the majority had the following to say:
‘
[10]
The question we must answer in this appeal is not whether the award
in issue is correct, as pointed
out by Moshoana AJ, but whether the
commissioner acted fairly, considered and applied his mind to the
issues before him…
It is indeed so that it is in keeping with
the reasonability requirement of LRA arbitration awards to also focus
on how the commissioner
approached the material before him as well as
the analytical process he subjected that material to when making the
award’.
[25]
Further the LAC found that:
‘
[18]
It is important to point out, as stated by the court a
qou
that the essence of the appellant’s argument is that the
commissioner came to the wrong conclusion. This is clearly an
argument
that presupposes an appeal, rather than a review.’
[26]
In the light of the above, the issue is not about
correctness. I cannot fault the commissioner’s findings in
paragraph 68
that on a plain reading of the agreement, once it has
been established that the applicants (Coetzee and others) fall within
the
jurisdiction of the Health Council, the agreement must apply to
the applicants as they meet all the criteria set out in the
agreement.
He found support in that conclusion from the respondent’s
(applicant before me) own letter of 11 February 2004. I cannot agree
with Mr. Oosthuizen SC that by referring to the letter the
commissioner was deferring as it were to the interpretation by the
Chief Negotiator. The paragraphs before 68 reveal his own analytical
thinking around the interpretation issue.
[27]
For the reasons set out above, I find no basis to
interfere with the award dealing with interpretation and application
of the collective
agreement. It must follow axiomatically that the
applicant has failed to demonstrate that the award falls outside the
bounds of
reasonableness.
[28]
I now turn to the payment of interest review. The
first difficulty I have is that in the notice of motion, the attack
is directed
at the award of 29 March 2017 and the variation ruling of
10 April 2017. The applicant does not seek a review against the
determination
of 15 May 2017. It is in that determination that the
commissioner determined that Coetzee and others are entitled to be
paid interest
at the rate of 15.5%.
[29]
It was only
in argument that counsel for the applicant sought an exercise of
discretion in terms of section 1 (1) of the Prescribed
Rate of
Interest Act
[21]
.
As a court of review I am not at large to determine an issue arising
out of an award that is not being assailed. Further the issue
whether
special circumstances arise and or arose is not a matter properly
before me. Accordingly, I decline to exercise any discretion
in that
regard.
Issue
of costs.
[30]
Both parties argued that costs should follow the
results and I am not averse to such an argument. Mr. Stelzner SC
argued that this
matter is deserving of punitive costs given the
conduct of the applicant. Given the chequered history of this matter,
I was tempted
to favourably consider the argument, given the view I
take at the end. However, I considered that the application was not
frivolous
and vexatious. The matter was of some considerable
importance to the applicant as it was to Coetzee and others. It was
deserving
of the attention of this court. Therefore, the appropriate
order to make is that of costs on a party and party scale.
Conclusion
[31]
For all the above reasons, I come to the
conclusion that the award is free from any defects that vitiates it.
Accordingly, the application
for review falls to be dismissed with
costs.
[32]
In the results I make the following order:
Order
1.
The review application is dismissed.
2.
The applicant to pay the costs of this
application.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
.
Appearances
For the Applicant:
Mr A Oosthuizen SC with
him B Joseph
Instructed by:
State Attorney Cape Town.
For
the Respondents: Mr
RGL Stelzner SC.
Instructed
by:
MacRoberts Inc, Cape Town.
[1]
No.1 of 2004
.
[2]
9 Unless it is otherwise agreed to by the University and the
Administration the incumbents of posts on the joint staff are
appointed-
(a)
under conditions of service of the Universities…
[3]
Clause 32 (a)-(c)-Adverting of posts.
[4]
Act 66 of
1995 as amended.
[5]
The award was published on 29 March 2017.
[6]
DENOSA obo Du Toit and
Another v Western Cape Department of Health and Others
[2016] 37 ILJ 1819 (LAC).
[7]
[2012] 33 ILJ 353 (LAC).
[8]
Act 38 of
1994 as amended.
[9]
Act 20 of
1957 as amended.
[10]
(2014)
ILJ 943 (LAC).
[11]
Collins
Dictionary.
[12]
Duties of Joint Staff
8.
The joint staff shall-
(a)
with the assistance of medical Interns employed by the
Administration
, provide and administer services
in all
branches of medicine to patients at the teaching hospitals.
(b)
provide
all formal and clinical teachings in all branches
medicine, including anatomy, physiology and pharmacology students of
the University.
(c)
provide
pathological and other specialised services for
teaching hospitals
and the associated teaching of student of
the University.
(d)…
(e)…
(f)…
[13]
Head of Department of
Education v Mofokeng and Others
[2015] 36 ILJ 2802 (LAC).
[14]
[2007] 12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC).
[15]
Section 62(4) of the LRA.
[16]
Section 62(7) of the LRA.
[17]
[2005] 26 ILJ 849 (LC)
[18]
1960 (3) SA 338 (T).
[19]
Supra.
[20]
Case DA06/09 delivered on 29 November 2011 marked reportable.
[21]
Act 55 of 1975.