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[2019] ZALCJHB 65
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Independent Municipal and Allied Trade Union (IMATU) v Ekurhuleni Metropolitan Municipality and Others (JR1696/14) [2019] ZALCJHB 65; (2019) 40 ILJ 1794 (LC) (2 March 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: JR 1696/14
In
the matter between:
INDEPENDENT MUNICIPAL
AND ALLIED
TRADE
UNION (IMATU)
Applicant
and
EKURHULENI
METROPOLITAN MUNICIPALITY First
Respondent
ADVOCATE
T BOYCE N.O.
Second
Respondent
THE SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
THE SOUTH AFRICAN
MUNICIPAL WORKER’S Fourth
Respondent
UNION
(SAMWU)
THE SOUTH AFRICAN
LOCAL GOVERNMENT
Fifth
Respondent
ASSOCIATION
(SALGA)
MOGALE
CITY LOCAL MUNICIPALITY
Sixth
Respondent
Heard:
17 July 2018
Delivered:
02 April 2019
Summary:
Review Application – Review of Jurisdictional Ruling –
Provisions of Transitional Arrangements relating to
Industrial
Council Agreements – Whether Industrial Council Agreement is a
collective agreement
JUDGMENT
KENT,
AJ
Introduction
[1]
This
matter concerns an application to review and set aside an arbitration
award issued by the Second Respondent (the Arbitrator)
dated 18 July
2014 under case number GPD031311 (the Award). The application is
brought in terms of section 158(1)(g) read with
section 145 of the
Labour Relations Act
[1]
(the
1995 LRA).
[2]
The application is opposed by the First
Respondent and by the Sixth Respondent, who was joined to the
proceedings after being granted
leave to intervene in the
application.
Background
to the Review Application
[3]
In 2013, the Applicant referred a dispute
to the Third Respondent (the Bargaining Council) relating to the
interpretation and application
of the Conditions of Employment
Agreement: Transvaal (the Transvaal Agreement).
[4]
The matter came before the Arbitrator for
arbitration on 7 July 2013. The First Respondent (the Ekurhuleni
Municipality) raised
a preliminary point to the effect that the
Bargaining Council lacked jurisdiction to interpret and/or apply the
Transvaal Agreement.
[5]
The Arbitrator upheld the preliminary point
and found that the Transvaal Agreement had expired by no later than
11 May 1998, and
that the Bargaining Council accordingly had no
jurisdiction to interpret and/or apply the agreement.
[6]
It is this finding regarding the Bargaining
Council’s jurisdiction that the Applicant seeks to review and
set aside.
The
Transvaal Agreement
[7]
The Transvaal Agreement was concluded on 3
June 1994 in the Industrial Council for the Local Government
Undertaking.
[8]
The parties to the Transvaal Agreement
were, on the one hand, the Municipal Employers’ Organisation
and the Employers’
Organisation for Local Authorities, and the
South African Association of Municipal Employees on the other.
[9]
The
Transvaal Agreement provided that it would come into effect on a date
fixed by the Minister of Labour in terms of section 48
of the Labour
Relations Act
[2]
(the 1956 LRA)
and would remain in force until 31 December 1997 or such period as
determined by the Minister.
[10]
The Minister promulgated the Transvaal
Agreement in the Government Gazette in terms of section 48(1)(a) of
the 1956 LRA on 28 October
1994. On 11 November 1996 the 1995 LRA
came into operation.
[11]
Clause 12(1)(a) of Schedule 7 to the 1995
LRA provides
:
“
Any
agreement promulgated in terms of section 48, an award binding in
terms of sections 49 and 50, and any order made in terms of
section
51A, of the Labour Relations Act and in force immediately before the
commencement of this Act, remains in force and enforceable,
subject
to paragraphs (b) and (c) of this subitem, and to subitem (5B), for a
period of 18 months after the commencement of this
Act or until the
expiry of that agreement, award or order, whichever is the shorter
period, in all respects, as if the Labour Relations
Act had not been
repealed.”
[12]
Clause 13 of Schedule 7 to the 1995 LRA
provides:
“
(1)
For the purposes of this section, an agreement –
(a)
includes a recognition agreement;
(b)
excludes an agreement promulgated in
terms of section 48 of the Labour Relations Act;
(c)
means an agreement about terms and
conditions of employment or any other matter of mutual interest
entered into between one or more
registered trade unions, on the one
hand, and on the other hand –
(i)
one or more employers;
(ii)
one or more registered employers’
organisations; or
(iii)
one or more employers and one or more
registered employers’ organisations.
(2)
Any agreement that was in force immediately
before the commencement of this Act is deemed to be a collective
agreement concluded
in terms of this Act.”
(own
emphasis)
[13]
Both
of these clauses will be collectively referred to as the Transitional
Arrangements.
The
Relevant Review Test
[14]
It
is generally accepted that the test on review in respect of a
jurisdictional ruling is one of correctness, and not whether the
decision is one that a reasonable decision maker could make
[3]
.
An arbitrator either has jurisdiction to hear and determine a dispute
or he/she does not. Further, it is trite that the Labour
Court is
entitled, if not required, to determine the issue of jurisdiction of
its own accord.
[15]
In
the matter of
Trio
Glass t/a The Glass Group v Molapo NO and Others
[4]
the Court stated:
“
The
Labour Court thus, in what can be labelled a 'jurisdictional' review
of CCMA proceedings, is in fact entitled, if not obliged,
to
determine the issue of jurisdiction of its own accord. In doing so,
the Labour Court is not limited only to the accepted test
of review,
but can in fact determine the issue de novo in order to decide
whether the determination by the commissioner is
right or
wrong.”
[16]
Recently,
in the matter of
Macdonald’s
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union (AMCU) and others
[5]
the
Labour Appeal Court, per Sutherland JA, held:
“
In
my view, there is much to be said for the proposition that an
arbitrator in the CCMA or in a bargaining council forum who wrongly
interprets an instrument commits a reviewable irregularity as
envisaged in section 145 of the LRA, i.e. a reasonable arbitrator
does not get a legal point wrong. If so, the reasonableness test is
appropriate to both value judgments and legal interpretations.
If
not, ‘correctness’ as a distinct test is necessary to
address such matters. However, on either basis, the ruling
in this
case must be set aside.”
[17]
In light of the effect of the Court’s
finding in
MacDonald’s Transport
above, it is not necessary to deal with the applicable review test in
unnecessary detail, as an incorrect interpretation of instruments
by
an arbitrator is either
per se
unreasonable and therefore reviewable, or reviewable in terms of the
test of correctness.
[18]
It is therefore necessary to determine: (1)
Whether the Transvaal Agreement is a collective agreement in terms of
the 1995 LRA and
thus capable of interpretation and/or applicable by
the Bargaining Council; and if so (2) Whether the Transvaal Agreement
is still
in force.
[19]
If the answer to both of the above
questions is in the affirmative, then the Bargaining Council did in
fact have jurisdiction to
interpret and/or apply the Transvaal
Agreement and the Arbitrator was incorrect to find that the
Bargaining Council lacked jurisdiction,
in which instance the Award
will stand to be reviewed and set aside.
Analysis
[20]
It is common cause that the Transvaal
Agreement was entered into for what was originally intended by the
parties thereto to be a
fixed-term period.
[21]
The clause of the Transvaal Agreement in
terms whereof the referral to the Bargaining Council was made (clause
15.6.1) makes reference
to the matter being referred to the
Industrial Council for “consideration”. The Industrial
Council no longer exists,
and has not existed for in excess of two
decades. “Consideration” is no longer a concept that is
used in our employment
law.
[22]
Similarly, the parties to the Transvaal
Agreement no longer exist. The “councils” to whom the
terms of the Transvaal
Agreement applied were disestablished and
reconstituted between 1998 and 2000. Further, the province of the
Transvaal, in which
geographical area the Transvaal Agreement was
applicable, was abolished along with the other former provinces in
1994.
[23]
The Applicant contends that despite the
operation of the Transitional arrangements, it is possible for a
promulgated Industrial
Council Agreement to be enforced as a
collective agreement in terms of the 1995 LRA mechanisms after the
expiry of the transitional
period if the agreement “in some
other way” remained in force. As a general proposition, I
accept that this may be
possible.
[24]
On 2 September 1997 (i.e. before expiry of
the Transvaal Agreement), the Establishment Agreement was entered
into between the parties
to the Third Respondent. The First
Respondent was a member of the Fifth Respondent – the
employers’ organisation party
to the Third Respondent.
[25]
Clause 3.5 of the Establishment Agreement
provides:
“
All
existing collective agreements, whether concluded in a Bargaining
Council or any other collective bargaining forum (including
the
National Labour Relations Forum) shall, to the extent that they are
not in conflict with the Constitution, be deemed to be
of full force
and effect until amended or repealed by the SALGBC.”
[27]
The Applicant concedes that the Transvaal
Agreement was not deemed to be a collective agreement for the
purposes of the Transitional
Arrangements. However, the Applicant
contends that the Transvaal Agreement survived on account of being an
“existing collective
agreement” within the meaning of
clause 3.5 of the Establishment Agreement.
[28]
The Applicant also contends that the
Transvaal Agreement, at the time of the conclusion of the
Establishment Agreement was “clearly”
a collective
agreement within the definition of section 213 of the 1995 LRA. The
Applicant further contends that, as the Transvaal
Agreement has not
been amended or repealed by the Third Respondent, it remains “of
full force and effect” and is accordingly
binding upon both the
Applicant and the Ekurhuleni Municipality.
[29]
The Respondents, on the other hand, admit
that the Transvaal Agreement remained operative by virtue of the
Transitional Arrangements,
but that this survival of the Transvaal
Agreement was temporary, and along with the temporary survival of
existing legislation,
dispute resolution processes and fora, was
intended to allow for a smooth transition to the new dispensation.
[30]
In
support of its proposition that the intention of the Transitional
Arrangements was to provide for
temporary
persistence of existing collective agreements, the First Respondent
relies on the following from
CUSA
v Tao Ying Metal Industries and Others
[6]
:
“
The
LRA envisaged that the agreements that were in force at its
commencement would remain in force for a period of 18 months after
the commencement of the LRA or until their expiry date, whichever
occurred first. Similarly, exemptions that were in operation
when the
LRA came into effect had a limited lifespan; they remained in
operation either for a period of 18 months after the LRA
came into
effect or for the period for which they were granted, whichever
occurred first. The legislature clearly intended that
both the main
agreement and the exemptions granted in respect of that agreement
that were in operation when it came into operation,
would have a
limited lifespan
…
the legislature,
while providing for a limited lifespan for all industrial council
agreements…”
[31]
The First and Sixth Respondents dispute the
assertion made by the Applicant that the Transvaal Agreement is or
was a “collective
agreement” as defined in section 213 of
the 1995 LRA. They also dispute that it is possible for the Transvaal
Agreement to
be enforced in terms of the mechanisms created by the
1995 LRA.
[32]
In
support of their position that the Transvaal Agreement does not
constitute a collective agreement in terms of the 1995 LRA, the
Respondents cite
Coin
Security Group (Pty) Ltd v Minister of Labour & Others
[7]
,
wherein
the SCA stated as follows:
“
The
court a quo gave no reason for its findings that the agreement was
deemed to be a collective agreement and that the Labour Court
had
exclusive jurisdiction in respect of previously undetermined
demarcation disputes. It was wrong in both respects. It is clear
from
s 62 of the new LRA, to which the court a quo referred, that the
Labour Court has no jurisdiction to decide a demarcation
dispute.
Furthermore, nowhere in the new LRA is
it stated that an industrial council agreement promulgated in terms
of s 48 of the old LRA
would be deemed to be a collective agreement.
Clause 1A of the agreement provided that it would come into operation
on such date as might be fixed by the first respondent in
terms of
section 48 of the old LRA and that it would remain in force until 31
December 1996 or for such period as the first respondent
might
determine. The first respondent could only act in terms of s 48 at
the request of the second respondent, who could only request
him to
declare the agreement binding if authorised to do so by a decision to
that effect voted for by not less than two-thirds
of the
representatives who were present at the meeting at which the decision
was taken (s 27(2) to (7)). In
S v
Prefabricated Housing Corporation (Pty) Ltd and Another
1974 (1) SA 535
(A) this court held that such an agreement was not a
contract in the legal sense. Trollip JA said at 539G-540B:
‘
It
is true that the type of document now under consideration is termed
under the Act and in industrial parlance an ‘agreement’,
and it is said to be ‘negotiated’ or ‘entered
into’, but technically it is not a contract in the legal
sense.
The parties to the industrial council are the employer(s) or
employers' organisation(s) and trade union(s) or their
representatives
(see sec. 18). They do not contract inter se to
produce the measure. They (or those of them concerned in the matter
cf.
sec. 48 (1)) may ‘negotiate’ or ‘enter into’
‘the agreement’, but it is the industrial council
as the
corporate body that decides (a majority vote of two thirds of
those present and entitled to vote sufficing
sec. 27 (2) to
(7)) whether to adopt it and transmit it to the Minister for
consideration and promulgation. Moreover, it only becomes
effective
if and when the Minister deems it expedient to declare it binding by
notification in the Gazette (sec. 48 (1)). It is
noteworthy, too,
that it is the Minister who fixes the period of its duration, and
that he can also declare it (or parts of it)
to be binding on
employers and employees in the industry other than those who entered
into the agreement and for an area additional
to the area for which
the industrial council is registered (sec. 48 (1) (b) and (c)).
From
all those provisions it is clear, I think, that an industrial
agreement is not a contract but a piece of subordinate, domestic
legislation made in terms of the Act by the industrial council and
the Minister.
(See the clear and
concise summary of the position given by DOWLING J. in South African
Association of Municipal Employees (Pretoria
Branch) and Another v
Pretoria City Council
1948 (1) SA 11
(T) at p. 17).’
In
the light of this decision the legislature would have made it clear
in the new LRA if it intended the phrase “collective
agreement”
to include industrial council agreements such as the one we are
concerned with. Not having done so the definition
of a “collective
agreement” in the new LRA should be interpreted so as not to
include such agreements
.” (own
emphasis)
[33]
The
Constitutional Court, in
Fredericks
& Others v MEC for Education & Training Eastern Cape &
Others
[8]
,
referred
to this reasoning with approval, albeit
obiter
dictum.
[34]
In light of what is expounded above, the
following is apparent:
34.1.
The parties agree that the Transvaal
Agreement survived in terms of clause 12.1 of the Transitional
Arrangements;
34.2.
The parties agree that that the Transvaal
Agreement was excluded from what is provided in clause 13 of the
Transitional Arrangements;
34.3.
The effect of being included in terms of
clause 12 but excluded in terms of clause 13 is that the Transvaal
Agreement’s survival
by way of the Transitional Arrangements
was for a temporary period only;
34.4.
Where the parties disagree therefore is on
the issue of whether the Transvaal Agreement survived beyond this
temporary period in
some other way. The Applicant contends that it
was incorporated in the terms of the Establishment Agreement. The
Respondents dispute
that this is what occurred.
[35]
With regard to the Applicant’s
assertion that the Transvaal Agreement was incorporated by inference
in terms of the Establishment
Agreement, the Sixth Respondent points
out that the parties in this matter were not party to the Transvaal
Agreement – the
implication being that the reference to “all
existing collective agreements” would not have been intended by
the parties
to include an agreement to which they were not party.
[36]
The First Respondent alleges that all of
the provisions of the Transvaal Agreement have been superseded by
other agreements. I accept
the Applicant’s argument that there
is no evidence before the Court to substantiate this claim.
[37]
While on the one hand, the Respondents,
relying on
Coin Security
and
Fredericks supra,
have
illustrated why they hold the view that the Transvaal Agreement is
and was not a “collective agreement” in terms
of the 1995
LRA, the Applicant merely states that it is “clearly” a
collective agreement.
[38]
The Applicant has not provided convincing
reasons why it claims that the Transvaal Agreement is a collective
agreement for purposes
of the 1995 LRA, other than to state that it
meets the 1995 LRA definition as a matter of substance. This argument
does not deal
with the findings and remarks in the two aforementioned
judgments. It appears to me that this Court is bound by the findings
of
the SCA that an agreement promulgated in terms of section 48 of
the 1956 LRA is not a collective agreement.
[39]
If the Transvaal Agreement is not a
“collective agreement” then the Bargaining Council does
not have jurisdiction to
interpret or apply it. If it is accepted
that the Transvaal Agreement is not a collective agreement, then it
stands to reason that
the parties to the Establishment Agreement
could not have incorporated the Transvaal Agreement by inference when
it referred to
“existing collective agreements.” In this
regard I agree with the finding of the Arbitrator made at paragraph
4.6 of
the Award.
[40]
That being the case, the Establishment
Agreement (to the extent that it was ever even intended to) was not
effective in incorporating
the Transvaal Agreement. The Transvaal
Agreement, in the absence of evidence that the Bargaining Council
ever requested its extension
in terms of 12(1)(b)(i) of the
Transitional Arrangements, did in fact expire on 31 December 1997
(being the earlier of the possible
dates referred to in clause 12.1
of the Transitional Arrangements).
[41]
Had the parties to the Establishment
Agreement intended to incorporate the Transvaal Agreement or any of
its terms, they needed
to have been explicit in this regard. The
Applicant’s interpretation which purports to perpetuate the
Transvaal Agreement
is not a tenable one.
[42]
The Award withstands scrutiny on either
review test, given that the Arbitrator’s decision regarding the
absence of jurisdiction
of the Bargaining Council is correct.
Accordingly, the application must fail.
Costs
[43]
Both Respondents argued that costs ought to
follow the result. The First Respondent argued that costs of two
counsel were warranted.
[44]
The Applicant indicated that this was
something of a test case given that this Court had not been called
upon to deal with clause
3.5 of the Establishment Agreement before,
and did not press for costs with any vigour, and indicated that it
would leave the issue
of costs to the Court.
[45]
While it is correct that there does not
appear to be any case law directly on the issue relating to clause
3.5, what is clear is
that the SCA has pronounced upon whether an
Industrial Council Agreement promulgated in terms of the old section
48 is a collective
agreement or not. The finding of the SCA in this
regard firmly puts to bed the Applicant’s contention that the
Transvaal
Agreement was incorporated in terms of the Establishment
Agreement, as it could not have been. I see no reason that costs
should
not follow the result.
[46]
In the circumstances, the following order
is made:
Order
1.
The application is dismissed.
2.
The Applicant must pay the First
Respondent’s and Sixth Respondent’s costs, including the
costs of two counsel where
two counsel were utilised.
__________________
J.
Kent
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Adv
J G Van Der Riet SC
Instructed
by: Francois
Du Plessis Attorneys
For the First
Respondent: Adv G Fourie SC and Adv Z Ngwenya
Instructed
by: Tshiqi
Zebediela Inc
For
the Sixth Respondent: Adv H W Sibuyi SC
Instructed
by: Phungo
Incorporated
[1]
66 of 1995, as amended.
[2]
28
of 1956
[3]
See:
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008) 29
ILJ
964
(LAC).
[4]
(2013)
34 ILJ 2662 (LC) at para 22.
[5]
(2016)
37 ILJ 2593 (LAC) at para 30.
[6]
[2008] ZACC 15
;
2009
(2) SA 204
(CC) at paras 94 and 100.
[7]
[2001]
11
BLLR
1193
(SCA) at para 10.
[8]
[2002]
2
BLLR
119
(CC).