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[2019] ZALCJHB 214
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Ehlanzeni District Municipality and Another v South African Local Government Bargaining Council and Others (J1561/19) [2019] ZALCJHB 214 (6 September 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: J 1561/19
In the matter between:
EHLANZENI DISTRICT
MUNICIPALITY First
Applicant
MUNICIPAL MANAGER
N.
O
: EHLANZENI DISTRICT
MUNICIPALITY
Second Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
First Respondent
L.N NGOMANE & 95
OTHERS
Second
Respondents
Heard: 7 August 2019
Delivered:
6 September 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The applicants, (Ehlanzeni District Municipality (the Municipality)
and
its Municipal Manager) approached this Court on an urgent basis
for an order staying the enrolment of arbitration hearings in respect
of disputes referred to the first respondent (SALGBC) by the third
respondents (The Employees), pertaining to an unfair labour
practice
dispute and the interpretation and/or application of the collective
agreement pending the finalization of the review application
filed in
this Court under case number JR 1221/19.
[2]
The Municipality contends that the arbitration proceedings pending
before
the SALGBC, ought to be stayed pending review proceedings on
the grounds that a preliminary ruling issued by Arbitrator (ZG
Mpungose)
on 27 May 2019 under the auspices of the SALGBC,
in terms of which it was found that the SALGBC had jurisdiction to
arbitrate
the dispute was incorrect, particularly in circumstances
where the unfair labour practice dispute referral was neither served
on
it nor filed with the SALGBC.
[3]
The Employees opposed the application on two grounds
viz
that
the application lacks the prerequisite urgency in order for it to be
heard as such, and further that it is not just and equitable
to
review and set aside the jurisdictional ruling before the merits of
the dispute were disposed of through an arbitration hearing.
[4]
The background facts to this application, and to the extent that they
are not controversial are summarised as follows:
4.1.
The Employees are currently in the employ of the Municipality in
various levels of lower
management (levels 2 and 3). In 1998, the
Municipality introduced a motor vehicle allowance scheme for
employees at salary levels
3 and above (management positions) for the
acquisition of motor vehicles. In terms of the 1998 scheme, the
financial assistance
was linked to the employee’s annual
remuneration and was premised on the
AA guiding tables
.
4.2.
In 2007, the Municipality adopted the Motor Vehicle Allowance Scheme
(2007), in terms of
which
inter alia,
its employees on salary
level 2 and 3 would receive a fixed monthly motor vehicle allowance
calculated at their annual remuneration.
4.3.
The Employees contend that the formula for calculating the allowance
has not been updated
since 2001, and the effect thereof is that other
employees on a lower salary level have caught up with them, as they
had reached
the ceiling in respect of the formula used to calculate
the allowance. They further alleged that they have not received an
increase
on the allowance over a prolonged period.
4.4.
The
Employees’ case is further that a meeting was convened on
11 February 2013 which was attended by them, the
Municipality, and SALGBC to discuss the effect of the non-adjustment
of the allowances in respect of all the employees on salary
level 2
and 3, in view of them having reached the ceiling. In that meeting
the SALGBC had formed a view that all affected employees
were
entitled to an increase of the allowance when taking into account the
provisions of clauses 3.1 and 3.2 of the Motor Vehicle
Allowance
Scheme, 2007
[1]
[2]
read with clause 6.6
[3]
of the
Collective Agreement, 2012.
4.5.
In the light of the views expressed by the SALGBC on the adjustments,
a report was tabled
in a Council meeting held on 29 May 2013.
The report had recommended an increase to R16 071.96 and
R13 999.20
for salary levels 2 and 3 respectively. The Council
according to the Employees resolved to increase the allowance to only
R12 000
and R11 000 for employees on salary level 2 and 3
respectively
due to its financial constraints.
4.6.
On
24 October 2014, the Council after the recommendations made
on behalf of the mayoral committee resolved to amend clause
3.1 of
the Motor Vehicle Allowance Scheme, 2007
[4]
,
the effect of which was that the Employees, like section 57
employees, would be excluded from the scheme.
4.7.
On 25 February 2019, the Independent
Municipal Workers Union (IMATU) and the South African Municipal
Workers Union (SAMWU)
addressed correspondence to the Municipality,
indicating their intention to refer the dispute to SALGBC for
resolution.
4.8.
In correspondence dated 9 April 2019,
the Employees indicated their intention to refer an interpretation
and/or application
dispute in respect of the salary and wage
collective agreement. A similar letter dated 15 April 2019
was also addressed
to the Municipal Manager indicating the Employees’
intention to refer a further unfair labour practice dispute to the
SALGBC
in respect of the Municipality’s failure to implement
the collective agreement. The letter was accompanied by a
referral
form in terms of which the nature of dispute was classified
as ‘unfair labour practice’.
4.9.
The Employees’ case is that both disputes were referred to the
SALGBC on 9 April 2019
and 15 April 2019
respectively, and that the SALGBC had consolidated the disputes under
case number HQ041903.
The Employees had further in
support of their case, produced documents signed by a Municipality
official, which they contend was
proof that both referrals were
served on the Municipality. These documents were presented at the
hearing of preliminary points
as shall be dealt with later below.
4.10.
On 3 May 2019, the SALGBC issued a notice of conciliation.
The nature of the dispute set down
for conciliation on 17 May 2019
related to interpretation/application of a collective agreement.
4.11.
At
conciliation proceedings, the applicants had raised preliminary
points challenging the jurisdiction of the SALGBC. As can be
gleaned
from the submissions made to the Arbitrator in this regard
[5]
,
central to the jurisdictional challenge was that the Employees
were bound by the Main Collective Agreement and ought to
have
followed the Grievance Procedure set out therein by completing
grievance forms. It was contended that to the extent that the
Employees had not done so, the referral of the alleged unfair labour
practice dispute was premature.
4.12.
Following the hearing of arguments on the preliminary points raised,
the Arbitrator had issued a ruling
in terms of which it was concluded
that the SALGBC had jurisdiction to determine the disputes. In the
ruling, the Arbitrator had
commented that the dispute before the
SALGBC was enrolled for the conciliation of the interpretation and/or
application dispute.
It however became apparent at those proceedings
that the Employees had further referred an unfair labour practice
dispute on the
same set of facts.
4.13.
The Arbitrator accepted that the Employees did not refer any dispute
in regards to interpretation/application
of the Collective Agreement
to the grievance procedure despite protracted discussions between the
parties over the matter, and
further that the referral in that regard
was premature.
4.14.
In regards to the unfair labour practice dispute, the Arbitrator
accepted that there were various engagements
between the parties over
the same issues prior to the referral and accordingly, the SALGBC had
jurisdiction to determine the dispute.
4.15.
The Arbitrator did not issue a certificate of outcome at the time the
ruling was issued. On 4 June 2019
the SALGBC issued notices
of conciliation proceedings set down for 2 July 2019 in
respect of a dispute pertaining to
interpretation/application of a
collective agreement.
4.16.
On 10 June 2019, the applicant served and filed an
application to review and set aside the Arbitrator’
ruling.
4.17.
Conciliation proceedings scheduled for 2 July 2019 were
unsuccessful and a certificate of non-resolution
was issued on the
same date.
[5]
Central to the applicants’ case in seeking the Court’s
urgent
intervention is that it was anticipated that the dispute in
respect of the unfair labour practice would be enrolled for
arbitration
within 21 days [from the date of the jurisdictional
ruling] which would result in irreparable harm should urgent relief
not be
granted. It was further submitted that the yet to be set down
arbitration proceedings would confer jurisdiction
on
the disputes referred to
the SALGBC in circumstances were
there are pending review proceedings which seek to demonstrate that
it lacked such jurisdiction.
The applicants argue that approaching
the Court on an urgent basis is the only remedy available to them.
[6]
The principles applicable to urgent proceedings are trite. Emanating
from
the provisions of Rule 8 of the Rules of this Court, and as
further supplemented by paragraph 12. 11 of the Court’s
Practice
Manual,
the Court will decline to grant
an order for the enrolment of the application as an urgent
application and/or for the dispensing
of the forms and services
provided for in the Rules if the facts and circumstances set out in
the applicant's affidavits do not
constitute sufficient urgency for
the application to be brought on an urgent basis and/or justify the
abrogation or curtailment
of the time periods referred to in the Rule
6(5).
[7]
It has also
been repeatedly stated in this Court that it is only once an
applicant has persuaded the Court that sufficient grounds
exist which
necessitate a relaxation of the rules and ordinary practice, that the
Court would proceed to consider a matter as one
of urgency. The
extent to which the court will allow parties to dispense with the
rules relating to time periods will depend on
the degree of urgency
in the matter.
[6]
[8]
In this case, the impugned ruling sought to be reviewed was issued on
27 May 2019. At that stage, it can safely be said that the
Applicants were aware of the consequences of that ruling. On
its own
version, it had anticipated that the arbitration proceedings would
proceed within 21 days from the ruling conferring jurisdiction.
[9]
The Notice of Motion and Founding Affidavit in respect of the review
application
under case number JR1221/19 were served and delivered on
or about 10 June 2019. The applicant however approached
this
Court for its urgent intervention on 10 July 2019,
some six weeks since the ruling was issued. As at the hearing of this
application, the SALGBC had not set down the dispute before it for
arbitration, nor was there any indication as to when the matters
would be set down. Be that as it may, the averments made in regards
to the urgency of the matter only relate to concerns about
the
financial implications should the matters be set down for arbitration
before the SALGBC. It is not clear as to what fruitless
and wasteful
expenditure is referred to should the matters be set down. Be that as
it may, no attempt was made whatsoever as to
the reason it took the
applicant about six weeks from the date of the ruling to approach the
Court on an urgent basis.
[10]
A concern surrounding fruitless and wasteful expenditure, with no
particulars in that regard
pointed out, cannot by all accounts trump
the Employees’ rights to have their disputes properly and
expeditiously determined
before the SALGBC. Furthermore, as was
correctly pointed out on behalf of the Employees, it is indeed ironic
for the applicants
to raise issues surrounding fruitless and wasteful
expenditure in regards to defending these matters at the SALGBC, in
circumstances
where counsel and two attorneys were engaged by the
applicants for the purposes of the hearing of preliminary points at
the SALGBC,
and where in subsequent conciliation proceedings, the
applicants were yet again represented by an attorney.
[11]
In the end, no case had been made out to justify why this matter
should be on this Court’s
urgent roll. On the contrary, given
the timeline set out above in this judgment since the ruling was
issued, at most it should
be concluded that the urgency claimed in
this case is self-created and consequently, the matter ought to be
struck off the roll.
[12]
Removing the matter from the roll however only implies that it will
find its way back onto
the ordinary motion roll. In my view and based
on the facts of this case and what is pleaded, the matter ought to be
disposed of
on its merits.
[13]
To the extent that the applicants seek interim relief, the
requirements to obtain such
relief are well-known. Thus, the
applicants must establish a
prima facie
right (although open
to some doubt) to the final relief that will be sought in due course;
an apprehension of irreparable harm,
if the application is not
granted and an applicant ultimately establishes a valid claim; that
the balance of convenience favours
the applicants; and that there is
no other satisfactory remedy.
[14]
In the
founding affidavit, none of these requirements are addressed with any
particularity, other than the issue of urgency and
‘prejudice’.
Only in the written heads of argument were these requirements
addressed. The heads of argument are not
pleadings, and it is trite
that a case ought to be made out in the founding affidavit. It cannot
be made out in the replying affidavit
nor in the heads of
argument.
[7]
[15]
The grounds upon which the stay of arbitration proceedings is sought
by the applicants
are essentially based on the provisions of Clause
13 of the SALGBC Constitution, which requires any party to refer a
dispute to
arbitration. To this end, it was submitted that since the
jurisdictional ruling was issued, the Arbitrator nonetheless failed
to
direct the next process, resulting in the dispute surrounding
interpretation/application of a collective agreement being set down
for conciliation for the second time and the issuance of a
certificate of outcome.
[16]
It is not
clear from the above grounds as to what
prima
facie
right the applicants rely on. To the extent that reliance is placed
on the SALGBC Constitution, these provisions insofar as they
provide
a process for referring disputes, are indeed secondary to the
statutory requirements prescribed in section 191 of the Labour
Relations Act (LRA)
[8]
insofar
as a referral of disputes is concerned.
[17]
The jurisdictional ruling having been issued, there was clearly
nothing wrong with the
SALGBC having re-scheduled the matter for
conciliation as the certificate of outcome had not been issued nor
the dispute conciliated.
It did not require of the Arbitrator who
issued the jurisdictional ruling to indicate therein what the next
process was, as the
Employees were
dominus litis
in the
matter.
[18]
The applicants in the heads of argument made reference to the
provisions of section 158
(1B) of the LRA which states that;
“
The
Labour Court may not review any decision or ruling made during
conciliation or arbitration proceedings conducted under the auspices
of the Commission or any bargaining council in terms of the
provisions of this Act before the issue in dispute has been finally
determined by the Commission or the bargaining council, as the case
may be, except if the Labour Court is of the opinion that it
is just
and equitable to review the decision or ruling made before the issue
in dispute has been finally determined.”
[19]
There are clearly cogent reasons behind the above provisions. Central
to their purpose
is to ensure the expeditious resolution of disputes
at the CCMA or Bargaining Councils as the LRA requires, and to
further ensure
that those processes are not a stop/start affair as a
consequence of each and every ruling made by Commissioners being
taken on
review, especially on contrived grounds. These provisions
were further enacted upon a realisation that review proceedings in
this
Court take longer than necessary to be finalised.
[20]
In interpreting these provisions, it was submitted on behalf of the
applicants that should
the Court refuse to grant relief, the results
would be that the issue in respect of the dispute to be referred to
SALGBC for arbitration
will be the dispute not served on them and
referred to SALGBC without using the prescribed forms in accordance
with the parties’
collective agreement.
[21]
Certain difficulties arise from the above contentions. From the
submissions made before
the Arbitrator when hearing the preliminary
points at the SALGBC, it has already been pointed out that the basis
upon which they
challenged the jurisdiction of the SALGBC was that
the Employees had not followed the internal grievance procedure as
prescribed
by the Collective Agreement. The issue of whether the one
dispute was referred or not was not even central to the determination
of the preliminary point. To this end, I fail to appreciate the
persistence with the argument that the Collective agreement was
not
followed prior to referring the dispute, when discussions surrounding
the issues in dispute were the subject of sustained discussions
between the applicants, the unions and the Employees.
[22]
To the extent that the applicants had not address the requirements of
the relief that they
seek in the founding papers, it needs to be said
that it cannot be argued that any harm apprehended as a consequence
of such relief
not being granted is reasonable. On the contrary, the
Employees’ rights to an expedited dispute resolution of their
dispute
is paramount. Furthermore, it cannot be said that at the end
of the arbitration proceedings (whenever they do take place), the
applicants would be without a remedy. Depending on the outcome of
such proceedings before the SALGBC, the applicants would still
have a
right to approach the Court for relief in the ordinary course if the
need arises. In the end, the balance of convenience
clearly does not
favour the applicants, and it is more the Employees who stand to be
prejudiced if the relief sought is granted,
rather than the
applicants should such relief be refused. In the end, to grant the
relief sought by the applicants would not assist
in the expeditious
resolution of disputes before the SALGBC.
[23]
In the light of the above conclusions, it follows that the applicants
have not made out
a case for the relief that they seek. Further
having had regard to the requirements of law and fairness, I see no
reason why the
applicants should not be burdened with the costs of
this application.
[24]
In the premises, the following order is made;
Order:
1. The Applicants’
application is dismissed with costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the First and Second Applicant: J.
Molapo, instructed by Mohulatsi Attorneys Inc.
For
the Second Respondents: T
Cooper, Instructed by Döman Weitsz Attorneys
[1]
Clause
3
...the following policy be adopted in respect of the participation
in the motor vehicle and allowance scheme.
3.1
That with the exception of Section 57 Managers, Management positions
from level
3 upwards received a fixed monthly allowance calculated
on the annual basic salary of these respective positions and that
the
maximum amount of the allowance be equal to the figure indicated
on the table in point 3.5 below.
3.5
That it be noted that the travelling allowance for qualifying staff
members is determined
and in line with SALGBC guidelines.
[2]
The South African Local Government Bargaining Council (SALGBC)
salary and Wage Collective agreement 2012/2013
Linked
Benefits and Conditions of Service
6.6
Any benefits or conditions of service that ordinarily increases by
virtue of its links
to the increase in the salary of an employee,
shall increase by the same rate as the salary increase in each
financial year,
as set out above, subject to the special provisions
relating to the increase of the maximum employer contribution to
medical
schemes as set out in clause 8 below.
[4]
AMENDMENT
OF THE MOTOR VEHICLE ALLOWANCE SCHEME OF COUNCIL
1.
That section 3.1 of the Motor Vehicle Scheme be amended to read as
follows:
1.1
That with the exception of section 57 managers’ Management
positions from post level 3 upwards received
a fixed monthly
allowance calculated on the annual basic salary of these respective
position but must not be linked to the basic
salary and that the
maximum amounts of the allowance be equal to the figure indicated on
the table 3.5.
[5]
Annexure
‘FA5” to the Founding Affidavit
[6]
National
Union of Mineworkers v Black Mountain - A Division of Anglo
Operations Ltd
(2007)
28 ILJ 2796 (LC) at paragraph 12
[7]
See
Herbstein
& Van Winsen - The Practice of the High Courts of South Africa -
Fifth Edition Volume 1 at pages 439 - 440
[8]
Act 66 of 1995 (as amended)