About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 108
|
|
SA Nuclear Energy Corporation v Commission for Conciliation, Mediation and Arbitration and Others (JR963/2016) [2018] ZALCJHB 108 (15 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR963/2016
In the matter between:
SA NUCLEAR ENERGY
CORPORATION
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
LEN DEKKER
N.O.
Second Respondent
PELINDABA
WORKERS UNION
Third Respondent
Heard: 14 July 2018
Delivered: 15 March
2018
JUDGMENT
SHONGWE, AJ
[1]
The
Applicant brought an application in terms of Section 145 of the
Labour Relations Act
[1]
in which
it seeks an order:
1.1
Reviewing and setting aside the arbitration award issued by the
Second Respondent
dated 01 April 2016;
1.2
Substituting the award with an order that the CCMA did not have
jurisdiction
to arbitrate the dispute, alternatively that applicant
did not commit an unfair labour practice arising from the
implementation
of salary increases for the financial year 2015/2016,
alternatively;
1.3
Remitting the matter to the CCMA for a hearing de novo before a
Commissioner
other than the Second Respondent;
1.4.
Costs if opposed.
[2] It was argued on
behalf of the Applicant that:
2.1
The dispute is about an alleged unfair labour practice relating to
the provision
of benefits. The Commission for Conciliation, Mediation
and Arbitration (CCMA) issued a number of arbitration awards as
obtained
in the CCMA file.
2.2
Commissioner Dekker
issued an award which has nine pages in Respondent’s favour.
The other two found in the Applicant’s
favour. The commissioner
deposed to an affidavit in attempt to clarify the matter, among
others, as follows –
“…
on
Friday 1 April 2016 I issued an award…and sent it to the CCMA
by email…On Monday 4 April 2016 …I received
an email
from…an official of the CCMA, where certain issues were
raised…it is an internal process at the CCMA that
all
arbitration awards are internally scrutinized/perused by a different
commissioner before it is sent out to the parties with
a watermark of
the CCMA. It is such a perusal by commissioner Blignaut that required
me to again relook at the arbitration award.
Taking into account the
inputs received due to the perusal, an amended second award was sent
to the CCMA...”
2.3
It was not shown in what respect he had to relook at the award. The
only thing
shown by the CCMA checklist is that the Commissioner was
asked if he intended duplicating the heads of arguments from the
parties.
In answer to this specific question the Commissioner simply
deleted some of the heads.
2.4
Reliance on the
SAMWU
v Syntell (Pty) Ltd
[2]
is
unnecessarily technical as this case is irrelevant as it dealt with
determination of a demarcation. The award cannot therefore
to stand
following the gross irregularities.
2.5
All the awards are signed by the commissioner. The Commissioner
seemed to have
lacked impartiality in that he removed the Applicant’s
submissions.
2.6
There is a recognition agreement whereat salary increases are
negotiated. Though
the Respondent’s trade union (Pelindaba
Workers Union) is not recognized, the Applicant extended negotiated
salary increase
to all. The employer had a Remuneration Policy.
2.7
Salary increase is not a benefit as contemplated in the LRA
definition of unfair
labour practice.
2.8
It is wrong for the Commissioner to say that the employees must get
7.5%. There
is section 164 of the LRA 1995 where there is a demand
for salary increase, providing of a process to be followed when
parties
disagree. They can strike or embark on a lockout.
2.9
A decision must be made that there was grave irregularity in this
matter; that
this was not a benefit arbitrable by the CCMA, and that
the award is irrational.
[3] In turn it was argued
on behalf of the Respondent that:
3.1
On the 7
th
October 2016 the Registrar of this court
informed the Applicant that the record had been filed needing to be
collected within seven
days.
3.2
The commissioner filed an affidavit explaining which award is the
valid one and why there
were more than one awards. Commissioner
Blignaut who quality checked the award had approved it except for
duplication of closing
submissions. On reading the award and perusing
the quality check sheet there is no influence shown. Commissioner
Dekker indicated
that he was asked to relook at the award. The
wording in paragraph 4 at page 64 of his affidavit is very
unfortunate. The Commissioner
does not say why he changed the award.
3.3
Once an award is served to parties it is final even if it has no
signature. The commissioner
becomes
functus officio
. Two of
the six awards have a watermark despite all having the commissioner’s
signature
3.4
The commissioner changed his view on the matter.
3.5
It is clear that the Commissioner did not ignore any of the parties’
submissions.
The exclusion of one in the award is unfortunate.
3.6
Despite the seeming irregularity as envisaged by the case of
Shoprite
Checkers (Pty) Limited v Ramdaw N.O and Others
[3]
both parties had had their cases fully and fairly ventilated during
the hearing. It will be unfair to punish one party for the
administrative errors of the CCMA. It is mere speculation that
Commissioner Blignaut interfered with the award because she was
removed in another matter involving the same parties. There is no
evidence that she unduly influenced the outcome of the award
by
Commissioner Dekker.
3.7
The employer negotiates salary increases with NEHAWU for a group of
employees excluding
C4 band. Mr Coetzee testified that the wage
agreement had not been partially extended. The extension was done in
full.
3.8
This was not a matter of collective agreement or bargaining, instead
it is a matter of the
Remuneration policy that management had to
exercise. The employees had following the
Apollo
Tyres South Africa v Commission for Conciliation, Mediation and
Arbitration and Others
[4]
matter elected to come to adjudication instead of striking.
3.9
It was unfair of the Commissioner ordering that the employer had to
pay one employee and
leave others out, and this has a potential to
expose the employer to being sued for discrimination. These increases
were budgeted
for at R38-million.
3.10
The award cannot be reviewed.
Evaluation
[4]
Sec 145 (1)
[5]
states that
“
any party to a dispute who alleges a defect in any arbitration proceedings
under the auspices of the Commission may apply to the Labour Court for an order setting aside the
arbitration award”.
The Section also set out the time limits for the applicationfor review. Section145 (2) gives limited grounds of review. Sec 145 (2)
states that a defect referred to in subsection
(1), means
:
“
(a) that the Commissioner
(i) committed
misconduct
in relation to the duties of the commissioner as an arbitrator;
(ii)
committed
gross irregularity
in the conduct of the arbitration proceedings; or
(iii)
exceeded commissioner’s powers
; or
(b) that an award has been improperly obtained.”
[6]
[5]
Justice Steenkamp in the matter between
Transnet
Freight Rail v Transnet Bargaining Council and Others,
[7]
dealt
with a review and briefly considered the various grounds by referring
to court decisions as follows:
“
Misconduct,
Gross Irregularity and Acting in Excess of Powers
4. Matters may be taken on review in
terms of Section 145(2)(a) of the LRA on the grounds of the
arbitrator committing misconduct,
gross irregularity and/or acting in
excess of the powers conferred.
9. This court, in the case of
Woolworths (Pty) Ltd v CCMA & others
[2010] 5 BLLR 577
(LC) at paragraphs [19] to [23], in considering the test for review,
stated the following:
“
In the
unreported case of
Reliant Retail
Limited t/a Bears Furnishers v Commission for Conciliation, Mediation
& Arbitration & others
(case
number JR2841/06) [reported at
[2009] JOL 24327
(LC) – Ed],
this Court held that the function of the court in considering whether
or not to interfere with the arbitration
award on review is limited
to those grounds provided for in terms of
section 145
of the
Labour
Relations Act 66 of 1995
, as suffused by the constitutional standard
of reasonableness. The reasonable standard entails the applicant
having to show that
the decision reached by the arbitrator under the
statutory arbitration system is one which a reasonable decision-maker
could not
reach (see
Bato Star Fishing
(Pty) v Minister of Environmental Affairs & Tourism
[2004] ZACC 15
;
2004
(7) BCLR 687
(CC);
Sidumo & another
v Rustenburg Platinum Mines Ltd & others
(2007)
28 ILJ 2405 (CC) [also reported at
[2007] 12 BLLR 1097
(CC) –
Ed]). In order to succeed in relying on the grounds set out in
section 145
the applicant must show that the commissioner:
(i)
committed misconduct in relation to the
duties of the commissioner as an arbitrator;
(ii)
committed a gross irregularity in the
conduct of the arbitration proceedings; or
(iii)
exceeded the commissioner’s powers.
[20]The court
further held in that case that the issue of whether or not the
commissioner committed a gross irregularity or failed
to apply his or
her mind entails a determination as to whether or not the complaining
party was accorded a full and fair hearing
by the commissioner. A
fair and full hearing entails a determination of all the issues which
were placed before the arbitrator
during the arbitration proceedings.
The inquiry in this respect focuses on the method or conduct of the
decision-maker and does
not concern itself with the correctness of
the decision reached by the arbitrator (see
Sidumo
at 1179A–C and 1180A–C). There is however authority that
it is not every irregularity that would constitute gross
irregularity.
[21] In the Bears
Furnishers case, supra, the court held that the judicial review
powers given to the Labour Court is not for the
purpose of
necessarily weighing evidence which was presented during the
arbitration hearing, upon which the commissioner acted
upon in
arriving at his or her conclusion. The enquiry which the court needs
to conduct is whether or not there is the evidentiary
basis for the
conclusion reached by the commissioner. In other words, the duty of
the court in review is to determine whether the
conclusion reached by
the commissioner has its support in substantial and credible evidence
including consideration and appreciation
of the issues arising from
the dispute and the facts...
[22] In addition…
the general rule, as I understand it, is that the function of a
reviewing court in dealing with the complaint
of gross irregularity
is limited to determining whether or not a commissioner in exercising
the powers given to him or her by the
Labour Relations Act did
so
within the appropriate sphere of those powers and whether the
conclusions reached in the exercise of those powers are grounded
on
the relevant principle of law and supported by all the evidence and
the material facts which were presented during the arbitration
proceedings. I may hasten to also say if there is a deviation from
the facts or the law it must be of such a material nature, that
it
would amount to a denial of a fair hearing to the affected party, for
that to warrant interference with the award by the court.
[23] The question
that arises from the above is whether the conclusion reached by the
commissioner falls outside the range of reasonableness
so as to
attract interference with the award by the court... The question to
ask in considering the reasonableness or otherwise
of an award is to
determine whether the conclusion of the commissioner is one which a
reasonable decision-maker could not reach
(see
Sidumo
& another v Rustenburg Platinum Mines Limited & others
[2007] 12 BLLR 1097
(CC)).”
10. Ngcobo J, in
Sidumo and Another
v Rustenburg Platinum Mines Limited and Others
,
supra
,
considered the duty of commissioners to consider all the material
facts and stated as follows:
“
It is plain
… that CCMA arbitration proceedings should be conducted in a
fair manner…Fairness in the conduct of the
proceedings
requires a commissioner to apply his or her mind to the issues that
are material to the determination of the dispute.
One of the duties
of a commissioner in conducting an arbitration is to determine the
material facts and then to apply the provisions
of the LRA to those
facts in answering the question whether the dismissal was for a fair
reason….
It follows therefore that where a
commissioner fails to have regard to material facts, the arbitration
proceedings cannot in principle
be said to be fair because the
commissioner fails to perform his or her mandate…This
constitutes a gross irregularity in
the conduct of the arbitration
proceedings … And the ensuing award falls to be set aside not
because the result is wrong
but because the commissioner has
committed a gross irregularity in the conduct of the arbitration
proceedings.” As he then
was Paras [267] – [268]
11. When considering how to determine
whether a commissioner exceeded his or her powers the Constitutional
Court in that case set
out the relevant legislation as follows: “The
question whether a commissioner has exceeded his or her powers within
the meaning
of
s 145(2)(a)
(iii) must be determined in the light of
the powers conferred on the commissioners under the LRA. In terms of
s 188(1)(a)
a commissioner is required to determine whether the
reason for dismissal is a fair reason. In terms of
s 188(2)
, a
commissioner is required to take into account the code in considering
whether or not the reason for dismissal is a fair reason.
Schedule 8
to the LRA contains the code in relation to dismissal. Item 1(3)
declares that - '[t]he key principle in this Code is
that employers
and employees should treat one another with mutual respect. A premium
is placed on both employment justice and the
efficient operation of
business. While employees should be protected from arbitrary action,
employers are entitled to satisfactory
conduct and work performance
from their employees'. Item 2(1), in turn, provides that '[w]hether
or not a dismissal is for a fair
reason is determined by the facts of
the case, and the appropriateness of dismissal as a penalty'. Item 7
in turn provides that…
[The arbitrator in] determining whether
a dismissal for misconduct is unfair should consider the factors set
out in item 7(a) and
(b). All these provisions must be understood in
the context of the right to fair labour practices in s 23 of the
Constitution and
the obligation imposed on a commissioner 'to
determine the dispute fairly and quickly'. In NEHAWU [the
Constitutional Court]…
concluded: '[T]he focus of s 23(1) is,
broadly speaking, the relationship between the worker and the
employer and the continuation
of that relationship on terms that are
fair to both. In giving content to [the right to fair labour
practices], it is important
to bear in mind the tension between the
interests of the workers and the interests of the employers which is
inherent in labour
relations. Care must therefore be taken to
accommodate, where possible, these interests so as to arrive at the
balance required
by the concept of fair labour practices. It is in
this context that the LRA must be construed.'”
12. The Constitutional Court went on
to conclude as follows: “… [T]he award which a
commissioner ultimately makes,
must be fair to both the employer and
the employee. The LRA regulates unfair dismissals in express and
detailed terms and provides
a code that should be taken into account
by commissioners. And this defines the powers of the commissioner in
relation to awards
that they may make under the LRA. It follows from
this that where a commissioner makes an award which is manifestly
unfair either
to the employer or the employee, the commissioner
exceeds his or her powers under the LRA. Such an award falls to be
reviewed and
set aside under s 145(2)(a) (iii) of the LRA.”
13. The crucial enquiry is whether the
conduct of the decision maker complained of prevented a fair trial of
issues.
Ellis v Morgan
1909 TS 576
Goldfield Investments
Limited and Another v City Council of Johannesburg and Another
1938 TPD 560
Sidumo and Another v Rustenburg Platinum Mines
Limited and Others supra Telcordia Technologies Inc v Telkom SA
Limited
[2006] ZASCA 112
;
(2007) 3 SA 266
(SCA)
14. Further, Navsa AJ stated the
following in Sidumo and Another v Rustenburg Platinum Mines Limited
and Others, supra: “To
sum up, in terms of the LRA, a
commissioner has to determine whether a dismissal is fair or not. A
commissioner is not given the
power to consider afresh what he or she
would do, but simply to decide whether what the employer did was
fair. In arriving at a
decision a commissioner is not required to
defer to the decision of the employer. What is required is that he or
she must consider
all relevant circumstances.” Paras [269] –
[271] 7 Paras [272] – [275]
15. As set out above, our courts have
recognised that a latent gross irregularity in the conduct of the
arbitration proceedings
may occur to the extent that an arbitrator
may mistake or misunderstand the point in issue thereby failing to
afford the parties
a fair trial by virtue of the arbitrator
misconceiving the whole nature of the enquiry or of his duties in
connection with that
process. From the judgments referred to above,
the duties of an arbitrator in respect of process may be summarized
as follows:
15.1. To apply the law of evidence; 15.2. To apply the
substantive law of dismissal; 15.3. To apply his or her mind to all
materially
relevant factors; 15.4. To disregard materially irrelevant
factors; and 15.5. To weigh up all the materially relevant factors
and
issues.
16. In addition, the judgments
referred to above establish that to the extent that an arbitrator
deviates from complying with those
duties, such deviation must not be
of such a nature that it materially deprives a party of a fair
hearing.”
[6]
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[8]
the Constitutional Court held that the test to be used when
determining whether an arbitration award would be unreasonable, and,
therefore, reviewable, is whether the decision of the arbitrator is a
decision “that a reasonable decision maker could not
reach. In
that case, the Constitutional Court found that for a review to be
successful, it must be established by the Applicant
that the result
of the arbitration award falls outside of a “range of
reasonableness”.
[7]
The Supreme Court of Appeal upheld the latter decision of the Labour
Appeal Court in
Herholdt
v Nedbank Ltd
[9]
.
In this judgment, the LAC had found that:
“
Where
a commissioner fails to have regard to material facts, this will
constitute a gross irregularity in the conduct of the arbitration
proceedings because the commissioner would have unreasonably failed
to perform his or her mandate and thereby have prevented the
aggrieved party from having its case fully and fairly determined.
Proper consideration of all the relevant and material facts and
issues is indispensable to a reasonable decision, and if a decision
maker fails to take account of a relevant factor which he or
she is
bound to consider, the resulting decision will not be reasonable in a
dialectical sense. Likewise, where a commissioner
does not apply his
or her mind to the issues in a case the decision will not be
reasonable”.
[9]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[10]
.
When specifically interpreting the
Sidumo
test, the Court held as follows:
“
To
this end, a CCMA arbitration award is required to be reasonable
because, if it is not reasonable, it fails to meet the constitutional
requirement that an administrative action must be reasonable and,
once it is not reasonable, it can be reviewed and set aside.”
[10]
In
CUSA
v Tao Ying Metal Industries and Others
[11]
O' Regan J held:
“
It
is clear... that a commissioner is obliged to apply his or her mind
to the issues in a case. Commissioners who do not do so are
not
acting lawfully and/or reasonably and their decisions will constitute
a breach of the right to administrative justice”.
[11]
In
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[12]
,
it
was held as follows:
“
In
summary, section 145 requires that the outcome of CCMA arbitration
proceedings (as represented by the commissioner's decision)
must fall
within a band of reasonableness, but this does not preclude this
court from scrutinizing the process in terms of which
the decision
was made. If a commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant,
or the
commissioner commits some other misconduct or a gross irregularity
during the proceedings under review and a party is likely
to be
prejudiced as a consequence, the commissioner's decision is liable to
be set aside regardless of the result of the proceedings
or whether
on the basis of the record of the proceedings, that result is
nonetheless capable of justification”.
[12]
In the matter of
Goldfields Investments LTD Limited and Another v City Council Johannesburg and Another
[13]
Schreiner J said:
“
It seems to me that gross irregularities fall broadly into two classes, those that take place openly,as part of conduct of trial they might be called patent irregularities and those that take place insidethe mind of judicial officer, which are only ascertainable from the reasons given by him and whichmight be called latent. Of course, even the first class are only material inamuch as they prevent, orare deemed to prevent, the magistrate’s mind of being properly prepared for the giving of thecorrect decision. But unlike the second they admit of objective treatment, according to the nature ofthe conduct. Neither in the case of latent nor in the case of patent irregularities need there may beany intentional arbitrariness of conduct or any conscious denial of justice.
The law, as stated in
Ellis v Morgan; Ellis v Desai
1909 TS 576 at 5 has been accepted in subsequent
cases, and the passage which has been
quoted from that case shows that it is not merely high-handed
or arbitrary conduct which is conduct which is
described as a gross irregularity; behaviour which is perfect wellintentioned and bona fide, though
mistaken, may come under that description. The crucial question
is whether it prevented a fair trial of issues. If it
did
prevent a fair trial of issues, then it will amount to a gross
irregularity. Many patent irregularities have this defect.
And
if from the magistrate’s reasons it appears his mind was not in
state to enable him to try the case fairly this will
amount to a
latent gross irregularity.”
[13]
The general principle is that a ‘gross irregularity’
concerns the conduct of the proceedings rather than the merits
of the
decision. A qualification to that principle is that a ‘gross
irregularity’ is committed where decision-makers
misconceive
the whole nature of the enquiry and as a result misconceive their
mandate or their duties in conducting the enquiry.
Where the
arbitrator’s mandate is conferred by statute then, subject to
any limitations imposed by the statute, they exercise
exclusive
jurisdiction over questions of fact and law
[14]
.
[14]
The CCMA Commissioners are governed not only by the LRA but most
importantly they are regulated by and it is expected that
they comply
with their code of conduct
[15]
which provides for ethical conduct of Commissioners at all times, in
pursuit of conduct that beyond reproach.
[15]
The general obligations of Commissioners
[16]
of the CCMA is
inter
alia,
to ensure that all processes which Commissioners conduct are seen to
be fair, impartial, independent and ensure that they promote
the
principles of equity and social justice in order to maintain the
confidence of the public, and all CCMA users. They must act
with
honesty, impartiality, due diligence and independently of any outside
pressure in the discharge of their functions; they must
conduct
themselves in a manner that is fair to all CCMA users and the public
at large; they must not be swayed by fear of criticism
or by
self-interest.
[16] The CCMA in this
matter had not conducted itself as expected – that is,
impartial and independent. A Commissioner has
to hear parties and
independently render an award. The Applicant’s apprehension of
bias is well grounded on various grounds.
For example, the
Commissioner was able to capture the employees’ submissions and
never did the employer’s version.
The perception is that he did
not bother reading the employer’s case, if he did, he did not
understand it. In an award it
is key that a party is given reasons
why his/her version is not accepted. There is a saying that an
arbitration award must address
the losing party. This award fails to
do that if that party’s case is not well captured and/or
summarised.
[17] The Commissioner, in
paragraph 11 of the award, at page 20 of bundle A Pleadings,
emphatically wrote:
“
the legal
principles set out in these cases quoted above by the applicant’s
representative will be considered in the evaluation
and analysis of
the dispute. The conclusion reached is set out in paragraphs 19 and
20 of this award”.
He then at para 19 of the
award says:
”
In terms of
the case law extensively quoted by the applicant’s
representative… there is a legal answer to the respondent’s
submission that the dispute in question is a ‘matter of mutual
concern’ not capable of being arbitrated.”
The
said respondent’s submission is not within the body of the
award nor is same made reference to by the Commissioner
[17]
.
[18] At paragraph 12 of
the award the Commissioner indicated that “
regarding the
evaluation the respondent made the submission in paragraphs 5 to 16
of its heads of argument quoted in paragraph 6
above
”.
It is common cause that this purported quoted heads is not in the
heads. We now know they were removed at Commissioner
Blignaut’s
recommendation. Unfortunately for both Commissioners they never went
back to re-read and edit the award, hence
these discrepancies. They
are indeed unfathomable coming from Senior commissioners.
[19] It is unclear why
the CCMA introduced this so-called quality check if this leads to
one’s decision being second guessed
by another and finally
influenced to change. That does not become that commissioner’s
award as issued, but someone else’s
award who did the quality
checking – or two persons award, one heard the evidence and the
other read the former’s award
and made his/her contribution.
The only instance an award need quality checking is as far as format,
language and research are
concerned and not the substantive merit
part of the award.
[20] Commissioner
Blignaut was once involved with the same parties’
representatives in another matter. They had quarrels regarding
times
of sitting and not attending and being, etc. Though we have no
evidence before us, it is clear that Commissioner Blignaut
should not
have been involved in this matter, as a quality controller. She knew
she had dealt with these parties before and their
engagement ended in
unhappiness. From the perusal of the quality check document there is
no indication there as to whether there
was a quality check. Clearly
it seems to me there was more than we can see that happened between
the two Commissioners. Chances
are that they telephonically spoke or
they even met in the corridors at which the matter was canvassed. It
is unexplained why the
sudden change of the award’s contents if
Commissioner Blignaut had not pointed out same. It is unlikely that
she only raised
the issue of duplication of heads/closing
submissions. Interestingly, Commissioner Blignaut never picked up in
the last award that
there was captured one party’s version and
not the other party’s. Surely if this was about quality
checking Commissioner
Blignaut was supposed to approve the final
product, which it seems she did not do. On this ground alone the
award cannot stand.
It is reviewed and set aside.
[21] On 11 November 2015
the union referred a dispute to the CCMA regarding unfair labour
practice that “NECSA employees on
the D salary bands only
received a 5.5% cost of living increase from 1 July 2015 compared to
the employees on the C salary bands
who received a 7.5% cost of
living increase for this period. Salary bands have also not been
adjusted for the relevant period as
provided for in the NECSA
Remuneration Policy”. As an outcome they require, the
trade union recorded, “
to be treated the same as the
employees on the C salary bands”.
[22] On 4 December
2015 the matter remained unresolved and an outcome certificate was
duly issued.
[23] The matter was
arbitrated in favour of the trade union and its members. It is the
arbitration outcome that is being reviewed.
[24] I do not agree with
the union and the Commissioner’s conclusion that the dispute
fell within the jurisdiction of the
CCMA – “that the
decision was taken by the employer in terms of its own remuneration
policy and thus it amounted to
‘benefits’ to which the
employees lay claim … as opposed to a right created in terms
of collective bargaining…”.
[25] There were wage
negotiations at which the trade union herein was not a participant
due to low membership thus not qualifying
to be at the bargaining
table. The deal struck between management and NEHAWU was such that
“salary bands B1 – C4 received
an across the board salary
increase of 7.5% and salary bands D1 – D4 received an across
the board salary increase of 5.5%
of their respective total
remuneration packages…”
[26] At the arbitration
the trade union Pelindaba contended that NEHAWU was not entitled to
negotiate and agree with the employer
on the salary increase for
salary band C4 because salary band C4 does not fall within bargaining
unit A.
[27] I cannot understand
how can the trade unionPelindaba wants to be winners even in a game
they had not participated in. As far
as I am concerned they were
lucky that the employer even gave them 5.5% increase. It will be
senseless to have a majority trade
union negotiating a deal for its
members and those outside demand parity with the majority. The
Remuneration Policy is then misunderstood
if it will downplay the
bargaining chamber process and the outcome thereof.
[28] This leads to the
issue of whether or not there was jurisdiction for the CCMA to
arbitrate the matter.
[29] It is my considered
view that the CCMA lacked jurisdiction to arbitrate the matter. The
Commissioner misconstrued the case
before him when he concluded that
“the CCMA had jurisdiction to arbitrate the dispute”. The
employer’s representative
had clearly made a case to the
Commissioner by way of asking a question;
“
does the
CCMA have jurisdiction to award that the employer should actually
give the employee a certain percentage increase? Where
this
percentage increase is a subject of collective bargaining
[18]
…All
we are saying is that this dispute falls within the dispute of
interest it is not a dispute of right
[19]
”.
The Commissioner
immediately intercepted:
“
But you have
just told me it is not a subject of collective bargaining…”
[30] In response Mr de
Bruyn argued that:
“
there was no
negotiation, if the unions, if there is no majority union in
bargaining unit B, then there was no negotiations, and
if the
employer then unilaterally implemented then it is difficult to see
how you can say well this is a dispute of interest dispute”.
[31] It is wrong both in
fact and law of the Commissioner to have concluded that the decision
to grant 5.5% salary increase to D
band managers was made after
consultation with NEHAWU and to the exclusion of Pelindaba and
Solidarity, that it was a managerial
decision made in terms of the
Remuneration Policy and therefore constituted an exercise of a
discretion and rendered the decision
one relating to the provision of
benefits. The Commissioner was wrong to say that the decision was
unfair because the increases
for band D managers was less than that
of the bargaining unit employees and C4 band employees.
[32] It is not unfair to
have awarded the senior managers lower percentage of increase as
opposed to the lower ranking employees
whose percentage increase
emanated from wage negotiations process. This in my view will help
close the gap between the various
levels. It makes sense that the
lowest paid are given a good increase. After all senior managers also
get performance based increases.
[33] In the final
analysis and for the aforegoing reasons, I make an order as follows:
Order
1.
The award is reviewed and set aside;
2.
The CCMA did not have jurisdiction to arbitrate the dispute;
3.
The Applicant did not commit an unfair labour practice when
implementing salary
increases for the financial year 2015/2016;
4.
Third Respondent must pay the Applicant’s costs.
_____________
IM Shongwe
Acting
Judge of the Labour Court
Appearances:
For the Applicant:
Mr. P Maserumule
Instructed by: Maserumule
Attorneys
For the Third Respondent:
Mr. D de Bryn
Instructed
by Deon de Bryn Attorneys
[1]
Act
66 of 1995 as amended.
[2]
(2013)
34 ILJ 1263 (LC).
[3]
(2000)
7 BLLR 835 (LC).
[4
]
[2013]
5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC).
[5]
Labour
Relations Act 66 of 1995
as amended
[6]
Underlining
for own emphasis
[7]
[2011]
6 BLLR 594 (LC).
[8]
(2007)
28 ILJ 2405 (CC
).
[9]
(2012)
33 ILJ 1789 (LAC) at para 36.
[10
]
(2008)
29 ILJ 964 (LAC)
at
para 92.
[11]
(2008)
29 ILJ 2461 (CC)
at
para 84.
[12]
(2010)
31 ILJ 452 (LC)
at
para 17.
[13]
1938 TPD
551at 560.
[14]
See
para 10 of
Herholdt
v Nedbank Ltd (701/2012)
(2013)
34 ILJ 2795 (SCA).
[15]
See
section 117(6)
of the LRA 1995.
[16]
See
clause 3 of the CCMA Commissioners Code of Conduct, more
particularly sub-clauses 3.1 – 3.3.
[17]
PELINDABA
admits the commissioner’s omission in this regard – see
pages 40 – 43 Pleadings Bundle A, para 16.1
– 16.15
[18]
See
lines 12 – 17 of the transcript page 8.
[19]
See
page 9 lines 23 – 24 of the transcript.