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 345
|
|
PSA obo Members v Minister of Health and Others (J3106/18) [2018] ZALCJHB 345; [2019] 1 BLLR 71 (LC); (2019) 40 ILJ 193 (LC) (12 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE
NO: J 3106/18
In the matter between:
PSA
obo
MEMBERS
Applicant
and
MINISTER OF
HEALTH
First
Respondent
DEPARTMENT OF
HEALTH
Second
Respondent
DEPARTMENT OF PUBLIC
WORKS
Third
Respondent
MINISTER OF PUBLIC
WORKS
Fourth
Respondent
Heard: 11 October 2018
Judgment
delivered: 12 October 2018
JUDGMENT
VAN
NIEKERK J
Introduction
[1] The applicant has initiated these
proceedings on behalf of its members employed by the first
respondent, the Department of Health,
in the Civitas Building,
located at 22 Thabo Sehume Street, Pretoria. They contend that the
building is unsafe. In this application,
they seek a final order,
amongst other things, directing the respondents in terms of s 8 of
the Occupational Health and Safety
act, 85 of 1993 (OHSA), to provide
and maintain, as far as reasonably practicable, a working environment
that is safe and without
risk to the health of its employees, further
directing the respondents to comply with the recommendations
contained in reports
on the surveys conducted by the National
Institute for Occupational Health (NIOH) in respect of an indoor air
quality survey and
an area noise survey, and directing the
respondents to move the applicants to a safer working environment
free of the risks and
hazards identified in these reports. The
applicant also seek orders declaring that the members’ refusal
to work in the building
does not amount to a strike, and interdicting
the first and second respondents from disciplining its members for
refusing to enter
the Civitas building.
[2] The nature of the application is
described in the founding affidavit as one brought in terms of s 158
(1) (b) of the Labour
Relations Act, 66 of 1995 (LRA). That section,
as will appear below, empowers this court to grant orders to compel
compliance with
the LRA or any other employment law.
Jurisdiction
[3]
When the application was first called, the court raised the issue of
jurisdiction, as it is obliged to do (see
Commercial
Workers Union of SA v Tao Ying Metal Industries and others
(2008) 29
ILJ
2461
(CC)) and in particular, whether in terms of
s 157
of the
Labour
Relations Act (LRA
), either the LRA or some other law conferred
jurisdiction on the court to grant the relief sought. In particular,
the court raised
the concern that in terms of the OHSA, this court
enjoys only an appellate jurisdiction, and that there is no express
provision
in the Act (or any other) that confers jurisdiction to hear
a matter relating to the enforcement of general obligations (such as
those established by s 8) as a court of first instance. The parties
agreed that the matter stand down and that they would file
heads of
argument on this issue. In their heads of argument, the third and
fourth respondents raised a further jurisdictional point
to the
effect that since there was no employment relationship between them
and any of the applicant’s members, and given
that s 8 of the
OHSA applies only to an ‘employer’ as defined, the court
had no jurisdiction to entertain the applicant’s
claim
viz
a viz
the third and fourth respondents.
Factual background
[4] The factual background is not
particularly material to a determination of the jurisdictional
points, and it is sufficient for
present purposes to record the
following. After complaints about the condition of the Civitas
building and the working conditions
of its members, in May 2018, the
Department of Labour conducted an inspection of the premises, at the
invitation of the second
respondent. A prohibition notice was issued
in respect of an individual who was found to be operating a forklift
without the required
certificates and training, otherwise direction
notices were issued in relation to the need to assess noise levels
and air quality.
In June 2018, the National Institute for
Occupational Health (NIOH) conducted surveys on the area noise in the
plant room, and
indoor air quality in the building. The reports
established that the noise rating limit was exceeded in two of the
four areas measured
and further, that in a number of offices on
different floors, air velocity and relative humidity did not conform
to the recommended
standards. The reports incorporated a series of
conclusions and recommendations.
[5] The applicant avers that in terms
of the outcomes of the above reports, the second respondent
intentionally refuses to comply
with its statutory duty to ensure a
safe working environment at the Civitas building. In broad terms, the
third and fourth respondents
oppose the application on the basis that
the reports on which the applicant relies do not support its
contentions and indicate
that air quality is within acceptable levels
and that while the plant room may have high noise levels, this is
expected for a room
where plant machinery is kept and which employees
do not enter on a frequent basis. Further, the third and fourth
respondents aver
that there is a notice at the entrance to the plant
room stating that it is a noise area, and that employees working in
the room
have been issued with protective muffs. Similarly, the first
and second respondents dispute the factual basis on which relief is
sought and deny that the working environment in the Civitas building
is unsafe, or that it poses a risk to the health of the applicant’s
members. Specifically, the first and second respondents aver that but
for the NIOH report (which contains recommendations on which
they
have acted), there is no evidence to support the applicant’s
claims.
The legislative framework
[6] Section 157 (1) of the LRA defines
the sources of the court’s exclusive jurisdiction and provides
as follows:
(1)
Subject to the Constitution and section 173, and except where this
Act provides otherwise, the Labour Court has exclusive jurisdiction
in respect of all matters that elsewhere in terms of this Act or in
terms of any other law are to be determined by the Labour Court.
[7] Section 157 (2) deals with the
court’s jurisdiction in respect of the application of the
fundamental rights established
by Chapter 2 of the Constitution. It
reads as follows:
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from –
(a)
employment
and from labour relations;
(b)
any
dispute over the constitutionality of any executive or administrative
act or conduct, or any threatened executive or administrative
act or
conduct, by the State in its capacity as an employer; and
(c)
the
application of any law for the administration of which the Minister
is responsible.
[8] Section 158 lists the powers of
the Labour Court. The section reads as follows:
158.
Powers of Labour Court
(1)
The Labour Court may-
(a)
make any appropriate order, including
(i)
the grant of urgent interim relief;
(ii)
an interdict;
(iii)
an order directing the performance of any particular act which order,
when implemented, will remedy a wrong and give effect
to the primary
objects of this Act;
(iv)
a declaratory order;
(v)
an award of compensation in any circumstances contemplated in this
Act;
(vi)
an award of damages in any circumstances contemplated in this Act;
and
(vii)
an order for costs;
(b)
order compliance with any provision of this Act or any other
employment law.
(c)
make any arbitration award or any settlement agreement an order of
the Court;
(d)
request the Commission to conduct an investigation to assist the
Court and to submit a report to the Court;
(e)
determine a dispute between a registered trade union or registered
employers' organisation, and any one of the members or applicants
for
membership thereof, about any alleged non-compliance with -
(i)
the
constitution of that trade union or employers' organisation (as the
case may be); or
(ii)
section
26(5)(b);
(f)
subject to the provisions of this Act, condone the late filing of any
document with, or the late referral of any dispute to,
the Court;
(g)
subject to section 145, review the performance or purported
performance of any function provided for in this Act on any grounds
that are permissible in law;
(h)
review any decision taken or any act performed by the State in its
capacity as employer, on such grounds as are permissible
in law;
(i)
hear and determine any appeal in terms of section 35 of the
Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); and
(j)
deal with all matters necessary or incidental to performing its
functions in terms of this Act or any other law.
[9]
In so far as the OHSA is concerned, s 35 (3) provides that this court
is constituted as an appellate court in respect of decsions
taken by
the chief inspector in terms of s 35 (1). The mechanisms of
enforcement established by the OHSA, in broad terms, provide
for
reports to be made to the inspectors, investigations or formal
inquiries to be conducted by inspectors, and written reports
to be
produced by inspectors. Section 30 confers broad and far-reaching
powers on inspectors, including the right to issue directions
and
prohibition notices whenever the inspector is of the opinion that an
employer has failed to comply with any applicable regulation.
Section
35 (1) establishes a right of appeal to the chief inspector by any
person aggrieved by any decision taken by an inspector.
Section 35
(3), as I have indicated, provides that any person aggrieved by
decision taken by the chief inspector either on appeal
or in the
exercise of any power under the Act, may appeal to this court. This
court is empowered by s 35 (3) to confirm, set aside
or vary the
decision or substitute for such decision any other decision which the
chief inspector in the opinion of the court ought
to have taken.
Analysis
[10]
Turning then to the question whether this court has the jurisidction
directly to enforce any of the general duties of employers
established by s 8 as a court of first instance, by way of a general
observation, there appears to be a common misconception that
this
court has jurisdiction to entertain any dispute that concerns a
work-related grievance, deal with any allegations of unfair
employer
conduct, or somehow to exercise a general supervisory role over the
employment relationship. This is not the case. As
long ago as 2001,
in
Langeveldt v
Vryburg Transitional Local Council & others
(2001) 22
ILJ
1116 (LAC), Zondo JP (as he then was), bemoaned the uncertainty
created by jurisidictional overlaps and said the following:
[66]
To my mind, to allow this state of affairs to continue is a logical
and makes no sense, especially as our country does not
have an
abundance of human and financial resources. As a country we should
use our resources optimally. There should only be a
single hierarchy
of courts which have jurisdiction in respect of all employment and
labour matters.
[11]
Despite this plea, and a plea for legislative intervention (see
paragraph 67 of the judgment) the LRA has not been amended
to confer
jurisdiction on this court in all employment-related matters. This
court’s jurisdiction remains regulated primarily
by s 157 of
the LRA. The interpretation of s 157
was
for some years the subject of controversy, but two judgments by the
Constitutional Court (
Chirwa
v Transnet Ltd
[2008]
2 BLLR 97
(CC, and
Gcaba
v Minister for Safety and Security & others
2010 (1) SA 238
(CC))
and
one more recently by the Supreme Court of Appeal have made the
position clear. In
Motor
Industry Staff Association v Macun NO & others
(2016)
37
ILJ
625 (SCA) at para 20,
the
SCA summarised the approach to be followed:
Section
157(2) of the LRA was enacted to extend the jurisdiction of the
Labour Court to disputes concerning the alleged violation
of any
right entrenched in the Bill of Rights which arise from employment
and labour relations, rather than to restrict or extend
the
jurisdiction of the High Court. The Labour Court and Labour Appeal
Court were designed as specialist courts that would be steeped
in
workplace issues and be best able to deal with complaints relating to
labour practices and collective bargaining. Put differently,
the
Labour and Labour Appeal Courts are best placed to deal with matters
arising out of the LRA. Forum shopping is to be discouraged.
When the
Constitution prescribes legislation in promotion of specific
constitutional values and objectives then, in general terms,
that
legislation is the point of entry rather than the constitutional
provision itself.
[12] The LAC also had occasion
recently to pronounce on s 157, and observed that if the court has
the jurisdiction it would have
the power to grant an appropriate
remedy and that because this court has the power to grant the remedy,
it does not mean that it
has jurisdiction to grant the remedy (see
Booysen v Minister of Safety and Security and others
(2011) 32
ILJ
112 (LAC)). More recently, in
Merafong City
Municipality v SAMWU
[2016] 8 BLLR 758
(LAC)), the LAC said the
following:
[29]
Section 157(1) is more of a confirmatory and reference section. It is
not in itself a primary source of jurisdiction. Instead,
it confirms
that the Labour Court has jurisdiction in matters where the Labour
Court has exclusive jurisdiction in terms of the
LRA. It also
confirms that the Labour Court’s jurisdiction where other
legislation provides that a matter
has to be determined
by the
Labour Court. Its main purpose, as derived from its wording within
the context of the entire section 157, appears to be
to delineate to
those instances in which the Labour Court would have exclusive
jurisdiction (own emphasis).
[30]
Section 157 (1) directs the reader of that section to the sources of
the Labour Court’s exclusive jurisdiction, albeit
in very vague
and general terms. It does not refer to specific sections in the LRA,
but suggests that they are to be found elsewhere
in that Act. As a
result, the interpreter is saddled with the difficult task of having
to, for example, distinguish purely jurisdictional
provisions from
general empowerment provisions. The difficulty is exacerbated by
sections which purport to contain mere empowerment
provisions,
whereas they, on proper construction, also actually contain
provisions which are sources of the Labour Court’s
jurisdiction
[31]
Section 158 is such a section. Its introductory wording specifically
states that it deals with the powers of the Labour Court.
Because the
introductory words of the previous section, that is section 157,
states that it deals with the jurisdiction of the
Labour Court, the
immediate expectation is that section 158 is not a source of
jurisdiction, but merely contains provisions defining
the powers of
the Labour Court in respect of matters, which, in terms of some other
provision of that Act, falls under the jurisdiction
of the Labour
Court. However, a close reading of the entire section 158 dispels
that initial notion. It does deal with powers (post
jurisdiction),
but also with powers, which cannot but be construed and understood as
sources of jurisdiction.
[13]
In other words, the distinction between jurisdiction and powers as
they are drawn by sections 157 and 158 is not necessarily
cast in
Manichean terms. It remains for the court to determine whether the
statutory provision on which an applicant relies to
found
jurisdiction is indeed one that confers jurisdiction (as the LAC
decided in
Merafong
in
relation to s 158 (1) (h) and applications to judicially review
decisions taken or acts performed by the state in its capacity
as
employer), or whether it is no more than the expression of a power
that may be exercised once jurisdiction has been established.
[14] The jurisdictional difficulties
occasioned by the wording of sections 157 and 158 are not limited to
the overlapping jurisdiction
between this court and other superior
courts. Section 157(5), for example, expressly provides that this
court does not have jurisdiction
to adjudicate an unresolved dispute
where the LRA or any other employment law require the dispute to be
resolved through arbitration.
This provision reinforces the
bifurcation in the dispute resolution processes established by the
LRA. In the same way that this
court does not enjoy jurisdiction in
respect of those disputes reserved for determination by arbitration,
the court should be circumspect
and slow to assume jurisdiction, in
the absence of any provision that expressly confers jurisdiction, in
relation to matters that
fall primarily within the purview of the
institutions of enforcement established by other employment laws, for
example, the inspectorates
established by the OHSA and the Basic
Conditions of Employment Act (BCEA).
[15] The manner in which jurisdiction
should be established is not disputed.
Chirwa
(
supra
)
makes clear that jurisdiction is determined on the basis of the
pleadings, and not on the substantive merits of the case. (See
also
the LAC’s judgments in Merafong and
Booysen
.) In motion
proceedings, this includes not only the formal terminology of the
notice of motion, but also the content of the supporting
affidavits.
These must be interpreted, when necessary, to establish the legal
basis of the applicant’s claim. To the extent
that the
applicant’s counsel objected to the respondents’ failure
to raise any jurisdictional objections in their respective
answering
affidavits, it should be recalled that in a matter such as the
present, where jurisdiction goes not to person or territory
but the
court’s competence to grant the relief sought, that it is for
the applicant to establish that the court has jurisdiction
to grant
that relief.
[16] Turning then to s 157 of the LRA,
it is common cause that the applicant does not approach this court by
way of its appellate
jurisdiction – the applicant is not
aggrieved by any decision of the chief inspector, and the relief
sought is not based
on any decision by an inspector or the chief
inspector. The relief sought is specifically the enforcement of what
the applicant
contends to be the second respondent’s
obligations in terms of s 8 of the OHSA, read with the
recommendations contained in
the NIOH reports. The crisp issue for
decision then is whether this is a matter which in terms of the LRA
or any other law (specifically
the OHSA) is to be determined by this
court.
[17] As I have indicated above, s 8 of
the OHSA establishes the general duties of employers to their
employees in relation to health
and safety at work. Section 8(1)
requires every employer to provide and maintain ‘as far as is
reasonably practicable, a
working environment that is safe and
without risk to the health of his (sic) employees’.
[18] Save for s 35(3) the there is no
other provision of the OHSA that expressly confers jurisdiction on
this court or, to employ
the wording of s 157 (1), that requires any
matter to be determined by this court. To the extent that the
applicant contends that
there is nothing in the OHSA that precludes
the applicant from approaching this court, as it has, for final
relief on an urgent
basis based on s 8 of the Act, this submission
ignores that fact that this court has no inherent jurisdiction except
that referred
to in s 151 (2), i.e. in relation to matters under its
jurisdiction. In these circumstances, it seems to me that this
court
has no jurisdiction as a court of first instance in relation to
the enforcement of any obligation under the OHSA.
[19]
To the extent that the applicant relies on s 158(1) (b), that
paragraph must necessary be read in the context of sections 157
and
158, and their purpose. In my view, s158 (1) (b) cannot be
interpreted to mean that in the absence of any provision in the
LRA
or any other law conferring jurisdiction on this court to so order,
the court may nonetheless compel compliance with any provision
of the
LRA or any other employment law. First, the wording of s 158 (1) (b)
is not ‘jurisdiction conferring’, in the
words of
Merafong
.
The section empowers the court to order compliance with the LRA or
any other employment law, but on the terms established by the
statute
concerned. So, for example, where a statute such as the OHSA empowers
inspectors to make determinations on the extent to
which an employer
is in compliance with its regulatory obligations, it is not for the
court to assume the function of an inspector
or perform the functions
of an inspector. The absence of any provision in the OHSA conferring
exclusive jurisdiction on this court
to order compliance with its
provisions should be contrasted, for example, with the
Employment
Equity Act, 55 of 1998
, which provides that this court has exclusive
jurisdiction to determine any dispute about the interpretation and
application of
the Act, and in s 50 (1) f), expressly provides that
this court may order compliance with any provision of the Act.
Secondly, there
is an important policy reason for this conclusion. To
hold otherwise would run the substantial risk that this court would
undermine
the carefully crafted enforcement mechanisms created by the
OHSA and indeed, other statutes that regulate the workplace. To use
an example employed by the applicant’s counsel, if employees
complain of being compelled to work in a smoke-filled room,
for this
court to intervene and enforce air quality standards as a court of
first instance, would undermine the institution of
the inspectorate
established by the Act. It cannot be that an applicant has a choice
of referring a compliant to an inspector for
investigation,
alternatively, to this court for adjudication. Such an interpretation
would also require the court to assume a degree
of technical skill
and expertise on its part of the court that does not necessarily
exist. While it is true that this court may
be called upon ultimately
to decide the correctness of an inspector’s decision, sitting
as it does as an appeal court, it
has the benefit in those
circumstances of the outcome of prior investigation and the basis of
decision-making by those employed
specifically to enforce the Act.
[20] This court has previously held in
relation to the enforcement of the Basic Conditions of Employment Act
(BCEA), that it should
not usurp the functions of labour inspectors
by granting orders that directly enforce the provisions of that
statute. In
Ephraim Moyo v Bull Brand Foods
(2010) 31
ILJ
951 (LC), the court held that this court’s intervention as a
court of first instance to enforce the minimum standard established
by the BCEA would undermine the system of enforcement established by
chapter 10 of that statute, in particular, the labour inspectorate.
The court observed that its general supervisory function would be
eroded should it grant what would amount to compliance orders.
For
the same reasons, in my view, while acknowledging the functional
differences between the BCEA and the OHSA, s 158 (1) (b) should
not
be construed so as to read in jurisdiction to enforce the OHSA in the
first instance.
[21] In short, neither the plain
wording of s 158 (1) (b) nor its obvious purpose indicate that it is
a jurisdiction-conferring
provision. In the words of
Merafong
,
it is a mere empowerment provision rather than a source of
jurisdiction.
[22] The applicant’s counsel
submitted that if sections 157 and 158 were to be read restrictively,
the applicant’s members
would be left without a remedy to
address their urgent concern regarding their work environment. This
is not a basis which renders
it competent for this court to
intervene. The OHSA establishes its own remedies, which are available
to the applicant and its members.
[23] To the extent that the applicant
relies on s 157 (2) of the LRA and submits that its complaint
implicates a Chapter 2 right
in the Constitution, (in the form of a
right to an environment that is not harmful to the health or the
well-being of its members),
this is not a claim foreshadowed by the
founding affidavit. The founding affidavit states no more than that
the applicant’s
members have a clear right to work in an
environment that is not harmful to their health and well-being, and
that compelling them
to continue working in an environment that is
harmful to their health and well-being is a violation of that right.
The applicant
does not identify the fundamental right on which it
relies with any greater specificity; it is not clear, for example,
whether
the right relied on is that established by s 24
(Environment), or s 23 (Labour relations), or both. This is not
something I need
attempt to discern from the founding affidavit - the
authorities are clear. An applicant is not entitled to seek the
direct enforcement
of a fundamental right; its claim must necessarily
be brought in terms of the legislation that gives expression to the
right (in
this case, the OHSA) – see
Motor Industry Staff
Association v Macun NO & others
(
supra
). To
the extent then that the applicant relies on s 157 (2) directly to
enforce a fundamental right, the application
must fail.
[24] In the case of the third and
fourth respondents, there is a further objection to jurisdiction
which, in my view, stands to
be upheld. It is not disputed that there
is no employment relationship between the applicant’s members
and either the third
or fourth respondents. The third respondent is
no more than the owner and landlord of the Civitas building, It is
described in
the founding affidavit as ‘the custodian and
manager of national governments’ (sic) fixed assets including
the determination
of accommodation requirements, rendering expert
built environment services to other departments, the acquisition,
maintenance and
disposal of such assets’. The third and
fourth respondents have not been joined for convenience – the
applicant
specifically seek substantial relief against them, based on
s 8 of the OHSA. Since the third respondent is not the employer of
the applicant’s members, it has no obligations to them in terms
of s 8 of the OHSA. Those obligations are established as between
an
employer and its employees. The third and fourth respondents have no
relationship whatsoever with the members of the applicant,
either in
contract or statute. I fail to appreciate how in these circumstances
it can be said that this court has jurisdiction
to grant the relief
sought by the applicant against the third and fourth respondents;
they are not an ‘employer’ for
the purposes of s 8 of the
OHSA and there is no matter that arises between them and the
applicant’s members that is required
to be determined either by
the LRA or any other law.
[25] The consequence of the findings
reflected above is that this court has no jurisdiction to grant the
order is contemplated in
paragraphs 1.2 to 1.4 of the notice of
motion, all of which make specific reference to s 8 of the OHSA or to
the reports whose
recommendations the applicants seek in effect to
enforce. The relief contemplated in prayer as 1.5 and 1.6
(respectively that the
applicant’s members’ refusal to
work is not a strike and that the first and second respondents be
interdicted from
taking any disciplinary action on account of any
refusal to enter the Civitas building), is dependent on the court
having the necessary
jurisdiction to enforce s 8 of the OHSA in the
terms sought by the applicant. In summary, the court has no
jurisdiction to grant
any of the relief sought by the applicant. The
application accordingly stands to be dismissed.
Costs
[26]
Finally, in relation to costs, the court has a broad discretion to
make orders for costs according to the requirements of the
law and
fairness. There is no reason why the interests of both ought not to
be best satisfied by an order for costs. The application
is
misguided, and the respondents have had to utilise taxpayer’s
money to oppose it. I do not think however, given the nature
of the
application, that the costs of two counsel are warranted. Further, it
seems to me that the interests of the law and fairness
are best
satisfied by each party bearing its own costs in respect of the
proceedings on 21 September 2018, when the application
was postponed.
I
make the following order:
1.
The application is dismissed with costs,
such costs to be limited to the costs of one counsel and to exclude
the costs of 21 September
2018 when the application was postponed and
costs reserved.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. O Mooki SC, instructed by Thabang Ntshebe
Attorneys
For
the first and second respondents: Adv. SK Hassim SC, with her Adv. L
Pillay, instructed by Ramakgaba Gonese Attorneys
For
the third and fourth respondents: Adv. C Puckrin SC, with him Adv. HC
Janse an Rensburg, instructed by the state attorney