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[2019] ZALCPE 10
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National Union of Metalworkers of South African and Others v Transnet Port Terminals (A Division of Transnet SOC Ltd) and Others (PR98/18) [2019] ZALCPE 10 (5 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PR98/18
In the matter between:
THE NATIONAL UNION OF
METALWORKERS
OF
SOUTH
AFRICAN First
Applicant
ABA
AND 183 OTHERS
Second and Further Applicants
and
TRANSNET PORT
TERMINALS
(A
DIVISION OF TRANSNET SOC LTD)
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
MANDY
COETZEE
N.O Third
Respondent
Heard:
15 May 2019
Delivered:
5 June 2019
JUDGMENT
MAHOSI. J
Introduction
[1]
This is an application brought by the first applicant (NUMSA), on
behalf of the second
and further applicants, in terms of section
158(1)(g) of the Labour Relations Act (LRA) for an order to review
and set aside a
jurisdictional ruling (the ruling) issued by the
third respondent (commissioner) under the auspices of the second
respondent, Commission
for Conciliation, Mediation and Arbitration
(CCMA) dated 16 April 2018, under case number ECPE4470-14.
[2]
Prior to outlining the applicant’s claims in detail and
considering the issues
which give rise to them, it is necessary to
summarize the facts that form the relevant background to the dispute
between the parties.
Background
[3]
On 02 August 2014, subsequent to the first respondent’s failure
to employ the
second and further applicants, NUMSA referred an unfair
discrimination dispute to the CCMA. The dispute was unsuccessfully
conciliated
on 29 September 2014 and was then referred to
arbitration, which was scheduled for 23 to 26 November 2014. The
arbitration did
not proceed as the dispute was withdrawn on 24
November 2014.
[4]
On 16 April 2016, NUMSA filed an application to withdraw the notice
of withdrawal
of the dispute and to have the dispute reinstated,
which application was coupled with condonation application. In
opposing NUMSA’s
application, the first respondent raised a
point that the CCMA lacked jurisdiction to arbitrate the dispute as
the dispute arose
on 30 July 2014. The first respondent’s
contention was that, by referring the dispute to the CCMA, NUMSA had
incorrectly
relied on section 10(6) of the Employment Equity Act
[1]
(EEA) that came into effect on 1 August 2014.
[5]
Having recorded the arguments in respect of the jurisdictional
challenge, the commissioner
issued a ruling in terms of which she
found that the CCMA lacked jurisdiction to arbitrate the dispute. It
is this ruling that
is the subject matter of this application.
The ruling
[6]
In her ruling, the commissioner recorded that the issue before her
was whether or
not the CCMA had jurisdiction to arbitrate the
dispute, given the fact that the dispute arose prior to the date on
which the amendments
to the EEA took effect, namely 01 August 2014.
[7]
In consideration of the arguments before her, the commissioner’s
point of departure
was that it was settled law that there is a
general presumption against retrospective application of statutes,
the basis of which
appear in her award as follows:
‘
13.
The issue was dealt with by the
Supreme Court of Appeal in
Unitrans
Passenger Coach Lines v Chairman National Transport Commission and
Others
(1999) 4 SA 1
(SCA) where the
Supreme Court of Appeal as well as the Labour Court in
Bandat
v De Kock and
Others (2015) 36 ILJ 979
(LC) with both courts confirming the position that no statute is to
be 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 statutes to have
that effect.
14.
In my view, similar to the issue at hand, the court in
Bandat
dealt with the issue of the statute amending a procedure -
specifically the change in onus brought about by the amendments to
section 11 of the EEA. The court concluded that the amendments do not
apply retrospectively, unless the contrary intention appears
from the
legislation. It does not. I am of the view that the same approach
should be applied to the application of Section 10(6)
as it would be
absurd for the Labour Court to have approached the enquiry in a
fragmented fashion.
15.
Counsel for NUMSA on behalf of its members argued that amended EEA
essentially
creates a choice of forum despite the cause of action
straddling between two dispensations further suggesting that the
choice of
forum has no prejudice to Transnet.
16.
However, the EEA contains no transitional arrangements relevant to
the issue
at hand and thus the presumption arises. The presumption
may be rebutted if there exists particular consideration of fairness
and
equity to do so and if it can be gathered from the EEA that the
legislature intended to be retrospective. At this juncture, it is
also prudent to briefly consider that the distinction between
amending statutes affecting substantive rights and those affecting
procedural rights is no longer regarded as being decisive. In any
event, In my view, the substantive rights of the employees cannot
be
affected by choice of forum which adjudicated or arbitrates the
matter as the choice of forum cannot diminish substantive rights.
The
right continues to exist despite the forum. Even if I am wrong, this
was not the argument of the union on behalf of its members.
17.
One would thus then have to consider the impact the choice of forum
has on the employer.
It is common cause that the powers of the CCMA
have been significantly increased in relation to the wide-ranging
relief it may
award and the right of appeal now catered for. Can it
be just and fair to subject the employer to relieve which did not
exist at
the time when the course of action arose? My inclination
would be to agree with the arguments put forward by counsel for
Transnet.
And if it would not be just and fair to do so, then the
position favouring the jurisdiction of the CCMA should be rejected.
The
considerations of fairness and equity in this instance it would
seem, do not then invalidate the presumption against retrospectivity.
18.
On the issue of retrospectivity, a similar position arose during the
transition from the
1956 LRA and the amended 1995 LRA with a change
in forum from the industrial courts to the CCMA, all claims pending
and which arose
before the industrial court had to be finalised under
it.
19.
While the argument in relation to choice of forum is a seductive one,
I am not persuaded
that this is what was intended by the legislature.
For reference one would not have to look further than the wording of
the very
EEA in section 10(6) where it prescribes the dispute
resolution path. If the legislature intended the dispute resolution
path to
be one of election despite the date on which the cause of
action arose, it would have said so. It does not. The legislation
makes
no mention of any form of retrospective application and thus
one must accept that the legislature is forward looking.’
[8]
It was on the basis of the above reasons that the commissioner found
that the CCMA
has no jurisdiction to arbitrate the dispute.
Dissatisfied with the arbitrator’s ruling, NUMSA brought this
application.
Grounds of Review
[9]
The applicant’s contention was that the commissioner
incorrectly failed to assume
jurisdiction to arbitrate the dispute,
committed material errors of law, and consequently arrived at an
outcome that was both incorrect
and unreasonable when she concluded
that, on the proper interpretation of the EEA and the fact that the
amendments took effect
from 1 August 2014, the dispute referred to
the CCMA fell to be adjudicated by the Labour Court.
[10]
The applicant’s further contention was that the commissioner
failed to appreciate that the correct
interpretation was that the
applicant’s election is to opt for the forum that they wished
to approach, since the amendments
had already taken effect when the
dispute was referred, be it the Labour Court or the CCMA.
[11]
In its supplementary affidavit, the applicant contended that the
commissioner erred when she conceptualized
the issue to be determined
as one concerning whether or not the amendments to the EEA were
intended to operate retrospectively.
In support of its contention,
the applicant submitted that the commissioner was only asked to apply
the law as it stood already
as at the time when the applicant had to
take the next step in the dispute referral process, that is to
proceed to arbitration
or to the Labour Court for adjudication.
[12]
In addition, the applicant submitted that, even if it was wrong in
the above submission, the commissioner
erred when she found that
there was no basis for concluding that the amendments in question did
not operate retrospectively. The
applicant’s view was that some
amendments could operate retrospectively and others not. Further that
the commissioner had
to consider the specific process amendments that
had been introduced, and ask herself whether the interest of the
employer would
be unfairly harmed by allowing the applicant to
advance the dispute in terms of those amended provisions.
The first respondent’s
submissions
[13]
In opposing the application, the first respondent’s contention
was that there is a strong presumption
against applying legal
provisions which were not in existence at the time that the parties’
cause of action arose. Further
that there has to be strong
indications in statute itself for it to be interpreted in this way.
The first respondent took a view
that labelling the provisions as
procedural or substantive in not useful or helpful in this process
particularly in the field of
labour law.
[14]
The first respondent’s further contention was that at the time
the dispute arose, the individual
applicants were not a party as
defined in section 10(6)(aA) since the category of employees earning
below the threshold had not
yet been created.
[15]
Furthermore, the third respondent’s contention was that there
can be no disadvantage to the applicants
to have the mater heard in
the Labour Court now, rather than the CCMA in due cause.
Interpretation of
Section 10 of the EEA
[16]
The real question before the commissioner and before this Court was
whether the amendments of section
10(6) of the EEA applied to all
referrals of unfair discrimination disputes to the CCMA for
arbitration, made after 1 August 2014,
and whether the CCMA has
jurisdiction to arbitrate over disputes which cause of action arose
before the amendments to section 10(6)
and were referred to it in
terms of that section.
[17]
Before answering these questions, it is apposite to set out the legal
position before and post the
amendments.
[18]
Prior to the amendments to the EEA, an alleged unfair discrimination
dispute could be referred
to the CCMA for conciliation. If a dispute
was not resolved at conciliation, a party could refer it to
the Labour Court
for adjudication. The parties to a dispute could
also agree to refer the dispute to arbitration.
[19]
Section 10(6), as amended in term of Employment Equity Amendment
Act,
[2]
that came into operation
on 1 August 2014 reads as follows:
‘
(6)
If the dispute remains unresolved after conciliation-
(a)
any party to the dispute may refer it to the Labour Court for
adjudication;
(aA)
an employee may refer the dispute to the CCMA for arbitration
if-
(i)
the employee alleges unfair discrimination on the grounds of sexual
harassment;
or
(ii)
in any other case, that employee earns less than the amount stated in
the determination
made by the Minister in terms of section 6(3) of
the Basic Conditions of Employment Act; or
(b)
any party to the dispute may refer it to the CCMA for arbitration
if all the parties to the dispute consent to
arbitration of the dispute.’
[20]
Legal principles relating to statutory interpretation are well
documented and have served before
the courts innumerable times. In a
line of authorities, a general consensus has settled at a position
that in our jurisprudence
legislation is not intended to be
retroactive, nor retrospective.
[3]
However, the rule of construction is that even if a new statute is
intended to be retrospective insofar as it affects vested rights
and
obligations, it is nonetheless presumed not to affect matters which
are the subject matter of pending legal proceedings. In
an earlier
English case of
Yew
Bon Tew v Kenderaam Bas Mara
[4]
Lord Brightman said that:
‘
Whether
a statute is to be construed in a retrospective sense, and if so to
what extent, depends on the intention of the legislature
as expressed
in the wording of the statute, having regard to the normal canos of
construction and to the relevant provisions of
any interpretation
statute.’
[21]
The Court held in that matter, that a proper approach to the
construction of an amending statute is
not about deciding what label
to apply to it, whether it speaks to issues of procedure or not, but
to see whether the statute,
if applied retrospectively to a
particular type of matter, would impair existing rights and
obligations. It is clear from the decision
that presumption is
subject to exception in matters of a statute which is purely
procedural. There is a presumption against the
reading of legislation
as being retrospective with the impression that while it takes effect
only from the date of commencement,
it impairs existing rights and
obligations.
[22]
The Supreme Court of Appeal (SCA) in
Kaknis
v Absa Bank Limited and Another
[5]
endorsed the principle that a statute is presumed not to apply
retrospectively, unless it is expressly or by necessary implication
provided in the relevant legislation. It held that the reason behind
this principle is that the legislature, by amendments, only
intends
to regulate future matters. It is apposite as this point, to quote
the example laid out by the SCA in respect of interpretation.
[6]
‘
[14]
It has been held that the crux of the matter is not the prospectivity
or retrospecitivity of legislation as such,
but the fair treatment
befalling those subject to the legislation should the legislation be
held to apply in that manner. Nevertheless,
where the statutory
provision confirms the existing law, it is not a case of true
retrospectivity, since true retrospectivity means
that at a past
date, the law shall be taken to have been that which it is not.
Thus,
if the legal position is A, and enactment X is designed merely to
confirm A, then it cannot be said that, subsequent to the
promulgation of X, the legal position has become A. Accordingly, true
retrospectivity can only become an issue once X replaces,
amends of
supplements A
.
[
23]
The minority of the Court, in a cautionary note, held however that
presumptions are merely an
aid to interpretation and must yield to
the intention of the legislature as it emerges from any particular
statute. In order to
answer the question whether a statue has
retrospective operation is not a mere inquiry of substantive law or
matters of procedure.
The true enquiry, according to the Court, is
always ascertaining what the intention of legislature was.
[24]
Guided by the authorities referred to above, I turn now to the
question at hand and that is whether
the amendments that were brought
by section 10(6) have retrospective effect, that is, do they impact
on existing substantive rights
or do they make available a new cause
of action to the applicants’ members.
[25]
It is common cause that prior to the introduction of section 10(6),
the position in our law was
that disputes about unfair discrimination
had to be referred to conciliation and should conciliation fail, the
dispute would then
be referred to the Labour Court for adjudication.
In terms of the amendments introduced by
section 10(6)(aA), an
employee may refer such a dispute to the CCMA for arbitration subject
to provisions contained in sub sections
(i) and (ii). What section
10(6)(aA) does is to confer powers on the CCMA to arbitrate such
disputes. However, does this mean that
the insertion of section
10(6)(aA) is to apply retrospectively as contended by the applicants?
I deal with this issue hereunder.
[26]
The Court was referred to a decision of
Eskom
SOC Ltd v De Wet NO and Another
[7]
,
where Basson AJ, dealt with a dispute relating to the interpretation
of section (10)(6)(b). In that matter, the Court was concerned
with a
dispute where the parties had agreed, in terms of the provisions of
section 10(6)(b) to have the dispute arbitrated at the
CCMA. At
arbitration, an objection was raised however that the CCMA lacked
jurisdiction as the claim or cause of action arose before
the
amendments came into operation and that the claim had to be assessed
against the law that was in force and that was applicable
at the time
when the claim was instituted, being 14 August 2014. The Court drew a
distinction between situations where the amending
statute comes into
operation before the procedure is initiated and a case where the
amending statute comes into operation after
the procedure has been
initiated and is still pending. At paragraph 11, the Court referred
with authority to the decision in
Bandat
v De Kok and Others
[8]
where Snyman AJ, found that the EEA does not apply retrospectively to
pending proceedings.
[27]
The facts in his matter are distinguishable from the facts in
Eskom
[9]
.
In that matter, the parties had agreed that the matter be arbitrated
by the CCMA. The Court found that the commissioner in that
matter was
correct in rejecting the applicant’s jurisdictional challenge,
as the amendments allowed the parties to reach
an agreement that the
unfair discrimination dispute be referred to the CCMA.
[28]
The applicants argue that the commissioner ought to have found that
the correct interpretation
should be that it had an election as to
the forum they wished to approach, since the amendments had already
taken effect when they
had to refer the dispute for adjudication by
the Labour Court or arbitration by the CCMA. This argument is flawed.
As I understand
it, the amendment was to confer certain powers on the
CCMA and not to provide an election on the applicants whose cause of
action
arose prior to the amendments. On this score, the
commissioner, refusing not to be drawn to this debate stated that
‘
while
the argument in respect of choice of forum is a seductive one, I am
not persuaded that this is what was intended by legislature’.
[10]
I agree. To argue in this
line would mean that the applicants are availed to the relief that
did not exist at the time when the
cause of action arose.
[29]
I align myself with the proposition in
Kaknis,
[11]
that the legislature is presumed to know the law. The insertion of
section 10(6)(aA) was to cloth the CCMA with powers to arbitrate
certain disputes that arise under the EEA. There does not seem to be
an intention however, to afford parties with a choice of abandoning
procedural steps undertaken under the pre-amendments and bringing
those under the benefits of the amendment. That is to say, the
introduction of section 10(6) itself says nothing about
retrospectivity. To my mind, this would disturb the esteemed
principle
that amending legislation will affect only future matters
and not take away existing rights and further bring chaos to the
cause
of effective dispute resolution.
[31]
Having undertaken the cause of the judgment in the manner that I have
above, I deem it not necessary
to deal with the grounds of review.
The commissioner in this regard, issued not only a well-reasoned
award, but demonstrated a
reasonable understanding of the related
legal principles. Her award is insurmountable and cannot be disturbed
on review.
[32]
In support of its contention, the applicant submitted that the
commissioner was only asked to
apply the law as it stood already as
at the moment when the applicant had to take the next step in the
dispute referral process,
that is to proceed to arbitration or the
Labour Court adjudication. This argument is not sustainable, for the
fact that there is
no transitional provision to be found in the
amendments to the EEA.
Costs
[33]
In deciding on the issue of costs, even though parties argued for
costs, and in using my discretion,
I am of the view that this is not
a matter that should attract an order for costs.
[34]
In the premises, I make the following order:
Order
1.
The application to review and set aside the
jurisdictional ruling issued by the Third Respondent under case no:
ECPE4470-14 is dismissed.
2.
There is no order as to costs.
__________________
D. Mahosi
Judge of the Labour
Court of South Africa
Appearances:
For the Applicant:
Advocate H Van der Riedt
SC with Advocate F.E. le Roux
For
the First Respondent: Advocate TMG Euijen SC
[1]
Act
55 of 1998 as amended.
[2]
Act
47 of 2013.
[3]
See:
S v Mhlungu and Others
[1995] ZACC 4
;
1995
(3) SA 867
(CC) at paras 65-67).
[4]
[1982]
3 All ER 833
at 836.
[5]
[2017]
2 All SA 1 (SCA); 2017 (4) SA 17 (SCA)
[6]
Ibid
at para 14.
[7]
(2018)
39 ILJ 2715 (LC).
[8]
(2015)
36 ILJ 979 (LC)
[9]
N
6.
[10]
Ruling
at para 19
[11]
Supra
n 4.