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[2018] ZALCJHB 258
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Eskom Holdings SOC Limited v De Wet NO and Others (JR2568/14) [2018] ZALCJHB 258; (2018) 39 ILJ 2715 (LC) (16 August 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR2568/14
In
the matter between:
ESKOM
HOLDINGS SOC
LIMITED
Applicant
And
COMMISSIONER
R DE WET
N.O.
First
Respondent
CCMA
Second
Respondent
NUMSA
OBO SITHOLE AND
OTHERS
Third
Respondent
Heard:
11 July 2018
Delivered:
16 August 2018
Summary:
Review of jurisdictional ruling in CCMA. Retrospectivity of section
6(4) of Employment Equity Act. Dispute arose before
amendment to
Employment Equity Act, but was referred to CCMA after amendment
became operative. Dispute determined in accordance
with amended
provisions. Reasonable attempt was made to resolve the dispute.
JUDGMENT
BASSON.
AJ
Introduction
[1]
The
insertion of section 6(4) the Employment Equity Act
[1]
(EEA) declaring the differentiation between employees
performing
the same or substantially the same work, or work of equal value, as
unfair discrimination, provided that such differentiation
is directly
or indirectly based on any one or more of the listed grounds, became
effective on 1 August 2014.
[2]
[2]
Another
amendment to the EEA that also became operative on the same date, is
section 10(6)(b) which provides that if the dispute
remains
unresolved after conciliation, any party to the dispute may refer it
to the Commission for Conciliation, Mediation and
Arbitration (CCMA)
for arbitration if all the parties to the dispute consent to
arbitration of the dispute.
[3]
The
issues that arise for determination in this review are firstly
whether the CCMA has jurisdiction to determine a dispute referred
to
it in terms of section 6(4) of the EEA where the dispute arose before
the amendments became operative i.e. 1 August 2014, but
where the
dispute was only referred to the CCMA after that date in accordance
with an agreement between the parties and secondly
whether a
reasonable attempt was made to resolve the dispute.
Background
[4]
The
applicant took a decision to address salary disparities in the
workplace and in November 2013 decided to adjust the salaries
below a
certain threshold. According to the applicant, the third respondent
did not qualify for the adjustment. On 24 March 2014
the third
respondent lodged a grievance, which went through various stages
without the grievance being resolved. On 26 May 2014
the applicant
communicated its decision to the third respondent and indicated that
they did not meet the criteria. On 14 August
2014 the third
respondent referred a dispute to the CCMA in terms of section 6(4) of
the EEA summarising the dispute as “
a
difference in terms and conditions of employment between employees of
the same employer performing the same work of equal value
”.
In the Labour Relations Act
[3]
(LRA) 7.11 form the third respondent indicated the date on which the
dispute arose as 24 May 2014.
[5]
The dispute
was set down for conciliation on 3 September 2014. A certificate was
issued that the dispute remained unresolved. The
parties however, at
conciliation concluded a written agreement, signed by both parties,
in terms of which they consented to arbitrate
the dispute before the
CCMA. On 5 September 2014 the third respondent referred the dispute
to arbitration.
[6]
The
arbitration was set down for 14 October 2014. The day before the
arbitration, the applicant launched an application in terms
of rule
31 of the CCMA rules to challenge the jurisdiction of the CCMA to
arbitrate the dispute. The main thrust of the argument
put forward by
the applicant was firstly that the amendments to the EEA containing
the equal pay provisions only came into effect
on 1 August 2014 and
do not operate retrospectively, and secondly that the grievance
procedure that was followed did not deal with
equal pay as envisaged
in section 6 of the EEA.
[7]
The CCMA
found firstly that the claim must be assessed against the applicable
law that was in force at the time of institution of
the claim (14
August 2014) and that the EEA, as amended, would apply, secondly that
the act or omission complained of was an ongoing
dispute and thirdly
that there was a reasonable attempt to resolve the dispute. The CCMA
therefore dismissed the challenge to its
jurisdiction. The applicant
now seeks this Court to review and set aside the ruling by the CCMA.
Retrospectivity
of section 6(4) of the EEA
[8]
The first
ground of review is that the CCMA lacked jurisdiction to arbitrate
the dispute, since the dispute arose before the amendments
to the EEA
became operative. The issue for determination is thus whether the
jurisdiction of the CCMA is determined at the date
on which the cause
of action (or dispute) arose, or on the date when the action is
instituted.
[9]
The
principle that legislation will affect only future matters and not
take away existing rights, is founded on the rule of law.
[4]
The time-honoured principle is that no statute is construed as having
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.
[5]
This principle is not only time-honoured but also one of global
application. It also follows that, if the court is left in doubt
as
to the retrospective effect of a provision, the presumption against
the retrospectivity would not be rebutted.
[10]
In
S
v Mhlungu and Others
[6]
Kentridge AJ explained that there is a presumption against
retrospective and retroactive legislation. By retroactive legislation
is meant legislation which invalidates what was previously valid, or
vice versa, i.e. which affects transactions completed before
the new
statute came into operation. It is legislation which enacts that as
at a past date the law shall be taken to have been
that which it was
not. Retrospective legislation takes effect only from its date of
commencement, but impairs existing rights and
obligations, eg. by
invalidating current contracts or impairing existing property rights.
The general rule therefore is that a
statute is as far as possible to
be construed as operating only on facts which come into existence
after its passing.
[11]
The
applicant relied in argument before the CCMA and this Court on the
judgment in
Bandat
v De Kok and Others
[7]
where the Labour Court found
that the EEA does not apply retrospectively to pending proceedings.
This decision is undoubtedly correct.
In
Bandat
the applicant resigned in July 2013 and the CCMA issued a certificate
of non-resolution in August 2013. When the matter came before
the
Labour Court in August 2014 the question arose whether the amended
version of section 11, dealing with the burden of proof,
ought to be
applied in the proceedings before Court. Snyman AJ found that there
is nothing in the EEA or in the amendment thereof
which indicates
that it must be applied retrospectively where the claim arose, the
statement of claim was filed, and pretrial proceedings
were concluded
before the amendment came into effect. In the circumstances the
existing procedure prior to the amendment was applied.
[12]
The facts
of the matter before me is distinguishable from those in
Bandat
where the cause of action arose and the action was instituted before
the amendment to the EEA became operative. In the matter before
me
the action was instituted after the amendment became operative.
[13]
Mr Boda SC
appearing on behalf of the applicant urged me to draw a distinction
between amendments relating to procedure and amendments
relating to
substance where the jurisdiction of the institution considering the
dispute is abolished and transferred to another
institution.
According to this argument, where an institution’s jurisdiction
is abolished and transferred to another institution,
the general rule
that jurisdiction is determined at the date of institution of the
proceedings should not apply, but the jurisdiction
should be
determined at the date when the cause of action arose.
[14]
I am not
convinced that such a distinction is useful, or that it is justified
in the circumstances of the case. In
Unitrans
(supra) the Court considered that there was a time when a distinction
was made between amending statutes affecting rights and those
affecting procedure only, but went on to hold that the distinction
cannot be decisive, because many amending statutes may appear
to be
procedural in nature but in fact impact on substantive rights.
[15]
The same
difficulty in distinguishing between substantive rights and
procedural rights occurs here. The amendment to section 6 of
the EEA
introduced a new substantive right in the form of unfair
discrimination relating to pay differentiation. The section must,
however, not be read in isolation, but must be read in the context of
the EEA as a whole and in concert with the rest of the provisions.
Once it has been determined that a new substantive right has been
created, the question that always follows is what procedure must
be
followed to exercise such right. The procedure is to be found in
section 10(2) of the EEA which provides that any party to a
dispute
in terms of Chapter II of the EEA may be referred to the CCMA for
purposes of conciliation within six months after the
occurrence of
the act or omission that allegedly constitutes unfair discrimination.
Thereafter the dispute is to be referred to
the Labour Court for
adjudication in terms of section 49 of the EEA, alternatively to the
CCMA in accordance with an agreement
concluded between the parties in
terms of section 10(6)(b). The new substantive right introduced by
section 6(4) can thus not be
divorced from the procedural rights
contained in section 10.
[16]
The
applicant challenged the jurisdiction of the CCMA to determine the
dispute between the parties. Insofar as the dispute between
the
parties need to be categorised, it is more of a procedural dispute
than a dispute relating to the substantive nature of the
right. To
attempt to draw a distinction between substantive and procedural
rights in this matter is not of any practical use in
determining the
challenge to the jurisdiction of the CCMA.
[17]
A useful
and necessary distinction may be drawn between the situations where
the amending statute comes into operation before the
procedure is
initiated, and the case where the amending stature comes into effect
after the procedure has been initiated and is
pending. I will
accordingly proceed to deal with the present application on this
basis.
[18]
Where the
legislature introduces an amendment to the procedure, the rule
operates as follows: If the action is instituted after
the amendment
becomes operative, the new procedure applies as the old procedure is
not part of the law any more. If the action
is instituted before the
amendment becomes operative, the old procedure remains intact.
[8]
It therefore follows that the procedure is determined at the date on
which the action is instituted and not on the date when the
cause of
action arises.
[19]
The action
was instituted by the third respondent by referring the dispute to
the CCMA on 14 August 2014, thus after the amendments
to the EEA
became operative. It therefore follows that the new procedure applies
and that the old procedure was not part of the
law any more. The new
procedure allows for parties to reach an agreement that the unfair
discrimination dispute be referred to
the CCMA by agreement between
the parties. This was done. The Commissioner’s rejection of the
applicant’s challenge
to the jurisdiction of the CCMA based on
the retrospective application of the EEA is therefore beyond
reproach.
[20]
In view of
my finding that the dispute was correctly referred to the CCMA in
accordance with the amended provisions of the EEA and
the agreement
between the parties, it is not necessary for me to express any view
on whether the dispute is of an ongoing nature
and I therefore
refrain from doing so.
Internal
remedies
[21]
The second
ground of review raised by the applicant is that the third respondent
failed to exhaust the internal remedies and that
the grievance did
not deal with the unfair discrimination dispute, but with matters
relating to experience. I am of the view that
the applicant’s
categorisation of the dispute as one relating to experience and not
one relating to pay discrimination is
without merit. The summarised
grievance reads as follows:
“
During 2003 Eskom took a
decision to implement the income differential to those employees
meeting the set criteria. The criteria
was discussed and accepted by
all Eskom stakeholders hence the implementation in November 2014.
When Eskom approved the criteria
there were other employees who claim
that they were left behind and did not benefit whilst other employees
who have the same related
experience benefited from this exercise.
Unit controllers at Camden claimed to have been disadvantaged as they
believe they also
meet the criteria stipulated as some of the
colleagues benefited from this exercise.”
[22]
It is
evident from the grievance that the employees believed that there was
a differentiation between them and other employees,
despite the fact
that they had the same experience. This is clearly a dispute relating
to the differentiation between employees
performing the same or
substantially the same work based on an arbitrary ground. It is
accordingly a dispute as contemplated in
section 6(4) of the EEA.
[23]
Section
10(4)(b) of the EEA requires that the party that refers a dispute
must satisfy the CCMA that the referring party has made
a reasonable
attempt to resolve the dispute. I am satisfied that the nature of the
dispute remains the same and that a reasonable
attempt has been made
to resolve the dispute. This ground of review is accordingly also
rejected.
[24]
In the
circumstances the following order is made:
Order
1.
The
application for review is dismissed.
2.
There is no
order as to costs.
__________________
J.
Basson
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate F Boda SC
Instructed
by: Cliffe Dekker Hofmeyr
For
the Respondent: None
[1]
Act
55
of 1998, as amended.
[2]
The grounds listed in section 6(1)
are race, gender, sex, pregnancy, marital status, family
responsibility, ethnic or social origin,
colour, sexual orientation,
age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language,
birth or on any other arbitrary ground.
[3]
Act 66 of 1995, as amended.
[4]
Veldman v Director of Public
Prosecutions, Witwatersrand Local Division
2007 (3) SA 210
(CC) at para 26.
[5]
Unitrans Passenger (Pty) Ltd t/a
Greyhound Coach Lines v Chairman, National Transport Commission, and
Others; Transnet Ltd (Autonet
Division) v Chairman, National
Transport Commission, and Others
1999 (4) SA 1
(SCA) para 12.
[6]
[1995] ZACC 4
;
1995 (3) SA 867
(CC) at para 65
(references omitted).
[7]
(2015) 36 ILJ 979 (LC) at para 14.
[8]
Unitrans
(supra) at paras 17 – 19.