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[2018] ZALCJHB 42
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IMATU obo Members v City of Tshwane Metropolitan Municipality (J176/16) [2018] ZALCJHB 42 (25 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J176/16
In
the matter between:
IMATU
OBO MEMBERS
Applicant
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
Respondent
Heard:
31
October 2017
Delivered:
25 January 2018
JUDGMENT
MAMOSEBO,
AJ
Introduction
[1]
The applicant, IMATU, a registered trade union, seeks an order on
behalf of its members, to make an arbitration
award dated 19 January 2015 by the South African Local
Government Bargaining Council (SALGBC) under case number
PMD 071413 an order of court in terms of s 158(1)(c) of the Labour
Relations Act
[1]
(LRA) .
[2]
It is common cause that the applicant and the respondent, the City of
Tshwane Metropolitan Municipality (the City), signed an
Acting Policy
Collective Agreement on 17 July 2014 to regulate acting by employees
in senior positions within the Municipality.
Disgruntlement by the
employees in the implementation of the Collective Agreement resulted
in a referral of the dispute by the
applicant on behalf of its
members to the SALGBC for its interpretation and application on 24
July 2014.
[3]
The arbitrator ordered that the City must comply with the provisions
of the new collective agreement by ensuring that the employees
who
qualify are rotated in acting in higher positions. The City has not
complied with the award to date hence this application.
[4]
Mr de Beer, appearing for the applicants, submitted that the
qualification of the employees was not in dispute
since Clause 11 deals with qualifications of the
employees. The purpose of the collective agreement is to afford
employees, who qualify, an opportunity to be rotated every
three months to gain relevant experience.
[5]
The City opposed the application to have the award made an order of
the court. The opposition, as submitted by the City’s
counsel
Mr van Wyk, is purely on a legal basis as the facts are not in
dispute and that the relief would not have any practical
effect.
Counsel submitted that litigation would still be instituted to
determine whether the award had been complied with in specific
instances and asked for the application to be dismissed.
[6]
The arbitrator considered the following Clauses: Clause1.1 of the old
collective agreement and Clause 4 of the new collective
agreement:
“
1.1 …In
cases where the incumbent in a higher graded position is on annual
leave, for a period exceeding 20 working days,
acting duties should
preferably and if possible be rotated between personnel. This is not
only to prevent the unnecessary payment
of acting allowances, thus
ensuring the cost effectiveness of the system, but also to ensure
that employees gain higher-level
experience through the rotation of
duties.”
And
“
4
Subject to existing operational requirements, acting appointments to
vacant positions shall be reviewed and approved monthly.
In the event
that there is more than one employee that qualifies to act in a
specific position the qualifying employees shall act
on a rotational
basis. Acting duties shall be rotated between qualifying employees.
This will ensure that employees gain a higher
level of experience.”
[7]
Based on the aforegoing clauses, the arbitrator concluded that the
provisions are self-explanatory and do not need any other
interpretation as they are couched in simple (unequivocal) language.
In addition to the quoted clauses the agreement also stipulates:
7.1
Acting is subject to the authorisation and approval of the SED of the
Department and/or the Deputy City Manager or in
terms of [City of
Tshwane’s] COT’s delegation of authority as amended from
time to time.
7.2
The acting period will be determined and agreed upon in writing
before the acting period commences.
7.3
The COT shall furnish the acting employee with a letter indicating
that he is acting in a higher position.
7.4
Although a specific qualification to act is not a requirement,
(unless required by law), it remains imperative that an
acting
employee should comply with the required skills to execute and
perform the duties of the position.
7.5
Acting duties shall be rotated between qualifying employees. This
will ensure that employees gain a higher level of experience.
The
submission by Mr De Beer was correct in that if the City is
dissatisfied with the terms of the agreement it must renegotiate
them
and not resort to approaching court.
[8]
Mr Van Wyk invoked
PSA
obo Members v National Health Laboratory Service
[2]
seeking
to convince me not to make the award an order of court. In my
view, facts of the case before me are distinguishable
from the
PSA
case. In the
PSA
case Kennedy AJ made the following remarks at para 17:
“
In this
matter however, there is no sum quantified by the settlement
agreement, nor does it determine whether and what amounts would
be
payable at the conclusion of the verification exercise. It is left to
the NHLS, in its verification exercise, to determine which
claims are
payable. It is only in the event of such a positive determination
that amounts must then be paid by the NHLS by the
specified date. If
those amounts are not paid, the next step is for the PSA or its
members to institute civil action to enforce
payment.”
The
court in
PSA
was not in a position to make the settlement agreement an order of
court because the amounts owed to the employees by the NHLS
were not
specified. It would serve no practical effect to make that settlement
agreement an order of court as litigation would
be inevitable. In the
case before me, however, the excerpts from the collective agreement
were agreed upon after negotiations.
I find the
PSA
case to be distinguishable.
[9]
It is clear that the award addresses the issue of rotation and not
the qualification of employees. It seems to me that the City
is
attempting to bolster its argument by challenging the enforceability
of the award and questioning how the qualifications of
those who will
qualify for consideration to act in higher positions will be made.
This was not the issue before the arbitrator.
The dispute related to
the interpretation and application of the collective agreement which
the arbitrator found in favour of the
employees and ordered the
respondent to comply with the collective agreement. There is no basis
to tamper with the finding of the
arbitrator.
[10]
In as far as costs are concerned the applicant did not ask for costs
and I will therefore not make any order in relation to
costs.
[11]
I therefore make the following order:
Order
1.
The
arbitration award of the arbitrator, Mr Thabo Sekhabisa, under case
number PMD071413, dated 19 January 2015 and issued under
the auspices
of the South African Local Government Bargaining Council is made an
order of court in terms of section 158 (1)(c)
of the LRA.
2.
I
make no order as to costs.
_______________
M C Mamosebo
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr P de Beer
Instructed
by:
IMATU (Union Official)
For
the First Respondent: Advocate WJ van Wyk
Instructed
by:
Bokwa Attorneys
[1]
Act
66 of 1995 as amended.
[2]
(2007) 6 BLLR 559
(LC)