About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2019
>>
[2019] ZALCPE 22
|
|
Nelson Mandela Bay Municipality v Arbitrator Fouche NO and Others (P241/17) [2019] ZALCPE 22 (2 December 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case No: P 241/17
In the matter between:
NELSON MANDELA BAY
MUNICIPALITY
Applicant
and
ARBITRATOR M FOUCHE
N.O
First Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
SOUTH AFRICAN
MUNICIPAL WORKERS
UNION
Third
Respondent
NOKONWABA
MPLATYI
Fourth Respondent
XOLISWA KARINA
KHALIMANE
Fifth Respondent
Delivered:
2 December 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
The applicant (Municipality) seeks an order reviewing and setting
aside
the arbitration award dated 3 July 2017 issued by the
first respondent (the Arbitrator) acting under the auspices of the
second respondent (SALGBC). In the award, the Arbitrator held that
the Municipality had committed an unfair labour practice in
not
paying the fourth and fifth respondents (the Employees) scarce skills
allowances. The Municipality further seeks to review
and set aside a
second arbitration award issued by the Arbitrator, in terms of which
the amounts due to the Employees were quantified.
The Employees and
the third respondent (SAMWU) filed and delivered a Notice to Abide
with the Court’s decision.
[2]
The dispute referred by the Employees to the SALGBC is one of
numerous
other similar disputes referred by other employees employed
by the Municipality related to the payment of scarce skills
allowances.
On the date that this application was heard, a similar
matter under case number PR223/17 was heard unopposed and the relief
sought
by the Municipality was granted. Judgment in this matter was
however reserved in the light of certainty sought by the Municipality
in view of the multitudes of similar other disputes.
[3]
To the extent that the application is unopposed, the brief background
to this dispute as can be gleaned from the material before the Court
is as follows;
3.1
The Employees are employed as superintendents in the Infrastructure
and Engineering
Directorate (the Roads and Stormwater
sub-directorate) of the Municipality.
3.2
The Municipality introduced a 10% scarce skills allowance in 2008 in
order to
retain and attract skills particularly Artisans,
Technicians, Technologists in engineering, Doctors, Pharmacists and
Nurses. The
allowance was further introduced as an interim measure,
payable until a new wage/salary structure could be implemented. The
allowance
was introduced following discussions held with SAMWU and
IMATU from 2007, which discussions had resulted in a Council
Resolution
in September 2008.
3.3
When the allowance was implemented, all employees employed at the
time received
it. In December 2013, and with a view of properly
regulating the issue of the allowance, the Municipality, SAMWU and
IMATU
entered into a collective Agreement on the Implementation of
Tuned Assessment of Skills and Knowledge (TASK) Final Outcomes Report
in the Modified Model Wage Curve. The agreement was applicable to all
employees who were in service as at 1 December 2013
when
the agreement took effect.
3.4
The Collective Agreement was meant to ensure that there was a job
evaluation
conducted in respect of all identified positions and that
the existing employees’ wages would be adjusted accordingly. It
overtook all other applicable policies and procedures related to
payment of the scarce skills allowance, and placed emphasis on
tertiary qualifications for employees to qualify for payment of the
allowance. Furthermore, other terms and conditions of the Agreement
were that;
3.4.1
The Agreement would remain in place until replaced by a Collective
Agreement entered into at National Level;
3.4.2
All employees would be paid in accordance with the new wage rates
with effect from 1 December 2013;
3.4.3
Salary scales would thereafter be adjusted in terms of the applicable
Wage and Salary Collective Agreements
concluded from time to time;
3.4.4
All positions to be advertised from 1 December 2013 to be
advertised utilising the appropriate
TASK grade and salary;
3.4.5
That all employees negatively affected by the discontinuance of the
allowance would be paid the allowance
for three months until
May 2014, during which period the Municipality and the Unions
would assess and review the impact of
the allowance on affected
employees.
3.5
Attempts by the Municipality in June 2014 into 2015 to
discontinue
the payment of the allowance in accordance with the
provisions of the Collective Agreement were met with resistance by
employees
who were affected. This had led to these employees
embarking on industrial action in or around June 2014. The
industrial action
had forced the Council of the Municipality in
August 2015 to revisit its decision and reinstate the scarce
allowance to certain
employees pending consultation with the Unions.
This decision was however contrary to the Collective Agreement
already concluded
in December 2013.
3.6
The Employees in this dispute were employed in March and April 2013
respectively
in TASK Grade 11. It is common cause that from the
commencement of their employment, they had not received the scarce
skills allowance.
In March 2016, some three years after the
commencement of their employment, they had then lodged a grievance,
contending that
they were entitled to the allowance.
3.7
Several meetings were held between the Employees as represented by a
SAMWU representative,
their supervisor, and management from the
Municipality between March and August 2016 with a view to
resolve the grievance.
3.8
When the grievance could not be resolved, SAMWU then referred an
unfair labour
practice dispute to the SALGBC in September 2016.
For some reason, two separate disputes were referred on behalf of
Employees.
The disputes were subsequently consolidated on
18 November 2016, and came before the Arbitrator for
arbitration on 18 January 2017.
The arbitration proceedings
were finalised on 17 May 2017.
[4]
At the arbitration proceedings, the Municipality led the evidence of
its
Deputy Director: Job Evaluation and Grading (Mr B L Douglas), its
Senior Director: Budget and Treasury (Mr Ngcelwane), and Mr J
Scheepers, a qualified artisan and Training Manager. Douglas was
closely involved in the development of the scarce skills strategy,
whilst Ngcelwane was involved in the preparation of budgets.
[5]
In summary, the evidence before the Arbitrator was that the two
Employees
had responded to an advertisement of two posts of Assistant
Superintendent. At the time that they responded to the advertisement,
they possessed National Diplomas in Civil Engineering and were
studying towards a B.Tech. Upon their appointments in March and
April 2013 respectively, and as a result of the implementation
of TASK, their job titles were changed from assistant superintendent
to superintendent.
[6]
The Employees’ case was that upon assuming their new positions,
they had discovered that many of their colleagues were being paid the
scarce allowance whilst they were not. The Employees’
comparators were seven other senior superintendents. Upon making
enquiries with their supervisor (Mr Gaffore), they were advised
that
they should in fact be receiving the payment as they qualified by
virtue of their tertiary qualifications.
[7]
Gaffore had also testified on behalf of the Employees in the
arbitration
proceedings, and confirmed that they had qualified for
the scarce skills allowance as they held national diplomas and had
higher
qualifications than trade tested artisans. His view was
further that by virtue of the Employees’ qualifications, they
were
technicians, and the latter were receiving the allowance. He
further testified that to the extent that when the posts were
advertised,
the Municipality had omitted to factor in the 10%
allowance as contemplated in Council Resolution of September 2008
when adopting
the interim scarce allowance, this was an oversight.
[8]
The Municipality’s case before the Arbitrator was that
8.1
Only employees in its employ since 2008 who had occupied the
identified occupational
categories qualified for the allowance;
8.2
The Employees in this dispute were appointed in 2013 and had applied
for the
allowance after the implementation of TASKS and did not
therefore qualify. No promises were made to the Employees and they
thus
had no legitimate expectation that they would receive the
allowance.
8.3
When the posts which the Employees occupied were advertised,
the 10% allowance
was not included in the remuneration package, and
they had accepted the offers of employment without the allowance.
8.4
The Employees did not in any event qualify for the allowance as they
were not
certified. In this regard, it was argued that even if the
Employees had academic qualifications, they were not professionally
qualified
in the sense of having been certified or registered by the
Engineering Council of South Africa (ECSA).
8.5
The dispute referred for arbitration was that of interest, as the
Employees
did not have a right to the allowance. Accordingly, what
the employees sought was a new right, which was a matter that fell
within
the prerogative of the Municipality to deal with.
[9]
In the award, the Arbitrator rejected the Municipality’s
arguments
that the dispute pertained to disputes of right, as the
scarce skills allowance was a condition of employment for certain
categories
of employees, and therefore an existing right.
[10]
According to the Arbitrator, the dispute turned on whether the
Employees had skills identified
by the Municipality as scarce and if
so, whether they qualified for the allowance. The Arbitrator
concluded that the Municipality
had committed an unfair labour
practice, and that the Employees were entitled to a scarce skills
allowance on the grounds that;
10.1
The Employees were scarce skills employees when employed from 2013,
as they were qualified in
engineering.
10.2
Engineering was identified as scarce skills as far back as 2007 with
the inception of the allowance,
and was one of the identified
occupational categories. The work performed by the Employees fell
within scarce skills category.
10.3
There was no requirement for registration with a professional body
before the allowance could
be paid, and all that was required
were professional and/or formal qualifications.
10.4
The fact that the advertisements did not include the allowance and
that the Employees had accepted
the offers without the allowance did
not imply that they did not qualify for it. The scarce skills
allowance remained a condition
of employment.
The
grounds of review and evaluation:
[11]
The Municipality sought to have the arbitration award reviewed and
set aside on various
grounds. The test on review is trite, and the
enquiry is whether the decision arrived at by the Arbitrator is one
that falls within
a band of reasonableness.
[12]
Having had regard to the grounds upon which a review is sought, and
the submissions advanced
in that regard, I am in agreement with the
Municipality that the arbitration award ought to be reviewed and set
aside for the following
reasons;
12.1
The Employees were employed in March and April 2013
respectively. At the time of their employment,
the payment of the
scarce skills allowance was still in place as per the 2009 Council
Resolution, in terms of which four criteria
were to be met for
qualification.
12.2
It was however not in dispute that the Employees from inception of
their employment, did not
receive nor were they entitled to the
scarce skills allowance. This was based on the fact that their posts
when advertised, had
specifically excluded the 10% scares skills
allowance.
12.3
That omission in my view could not have been by error as contended by
Gaffore, as it followed
a decision of the Council and the
Municipality to exclude the 10% scarce skills allowances from any
future advertisement of posts.
12.4
The Employees only raised a grievance in March 2016, some three
years after their appointments,
and it is inexplicable that they
would only raise that entitlement after such a long period of
employment. The only invariable
conclusion to be reached is that they
had jumped on the bandwagon after the Council Resolution to reinstate
the allowances following
the industrial action.
12.5
The Municipality is also correct in stating that the circumstances of
the employment of comparators
relied upon by the Employees, were
materially distinguishable. The comparators were in the employ of the
Municipality long before
the Employees, and had benefitted from the
scarce skills allowance from its inception in 2008. This was so in
that at the time
that the comparators were employed, their positions
were designated as scarce skills, whilst the Employees’ posts
were not.
12.6
The Municipality is further correct in pointing out that the
Arbitrator ignored the significance
of the Collective Agreement of
1 December 2013. When the Council Resolution was replaced
by the Collective Agreement
entered into between the Municipality,
SAMWU and IMATU in December 2013, part of the agreement was to
adopt and implement
a new model, TASK, which was meant to put
mechanisms in place that would lead to the discontinuance of scarce
skills allowance.
In line with the adoption of that new model, all
employees who were to be affected by the discontinuation of the
scarce skills
allowance were to be paid such an allowance until
May 2014.
12.7
It was the Municipality’s contention that the subsequent
Council Resolution adopted in
August 2015 in terms of which the
scarce skills allowance was reinstated following upon the industrial
action was unlawful
and contrary to the provisions of the Collective
Agreement entered into December 2013. In my view, the lawfulness or
otherwise
of this Council Resolution was not a defence that could be
relied upon in the light of that Resolution not having been set aside
by a Court order. In any event, as shall be made clearer in this
judgment, nothing turned on that Resolution.
12.8
The issue of the Council Resolution was however not central to the
determination of whether the
Employees were entitled to the scarce
skills allowance or not. To the extent that the Municipality relied
on the provisions of
the December 2013 Collective Agreement,
which in any event supersedes the Council Resolution, the issue is
whether the Employees
were indeed entitled to the scarce skills
allowance after 31 May 2014.
12.9
Any entitlement to the scarce skills allowance, to the extent that it
could have been argued
that it formed part of the terms and
conditions of employment could only have been based on the provisions
the Collective Agreement.
As correctly pointed out on behalf of the
Municipality, the issue for consideration was whether the Arbitrator
applied her mind
to the provisions of that agreement and the
implications of those provisions in relation to the discontinuance of
the allowance
with effect from 31 May 2014. Clearly with
these provisions, the intention of the parties could only be
understood to
have been that the scarce skills allowance would be
terminated with effect from May 2014, whilst further
consultations over
the matter took place.
12.10 The
Arbitrator commented on these consultations and the fact that as at
the date of the arbitration hearing, the
parties had not reached or
concluded any agreement in that regard. Be that as it may, the
Arbitrator nonetheless appeared to have
placed emphasis on the fact
that the payment of the scarce skills allowance had continued after
May 2014, and in that regard
had considered the reasons the
Employees should equally be entitled to such allowances despite the
fact that the circumstances
of the comparators were materially
distinguishable.
12.11
It is my
view that once the Arbitrator appreciated the parties intention as
reflected in the December 2013 Collective Agreement
as she had
done, this ought to have been the end of the matter, given the
sanctity of collective bargaining and the primacy given
to collective
agreements. As further pointed out on behalf of the Municipality, the
provisions of section 71(3) of the Local Government:
Municipal
Systems Act
[1]
placed an
obligation on the Municipality to comply with any collective
agreements concluded with organised labour.
12.12 In line
with above, the fact that the Municipality had continued to make
payments of these allowances to other
employees who had previously
benefitted, cannot give rise to the Employees’ entitlement to,
or a right to such payments.
In any event, the Employees never at any
stage of their employment benefitted from the scarce skills
allowance, and any right alleged
by them in that regard cannot simply
arise out of the fact that other employees, contrary to the specific
provisions of the collective
agreement, continued to receive the
allowance.
12.13 Even if
any reliance was to be placed on the subsequent Resolution of Council
of 20 August 2015, which
reinstated the payment of the
allowances after the industrial action, that Resolution in any event
refers to reinstatement of the
allowance in respect of certain
employees who had previously benefitted. The Employees did not fall
into this category.
12.14 I am
further in agreement with the submissions made on behalf of the
Municipality that it constituted a material
error of law on the part
of the Arbitrator to order the Municipality to make the payments to
the Employees, where any such order
was contrary to the basic tenets
of statutes governing municipalities, or where compliance with such
an order would have led to
material breaches of such statutes and
collective agreements reached by the parties to the dispute.
12.15 In the
light of the above conclusions, it is not even necessary to have
regard to the other factors that the Arbitrator
considered in coming
to a conclusion that the Employees qualified for the scarce skills
allowance. Equally so, it is not even necessary
to consider other
grounds of review related to the second (Supplementary) Arbitration
award issued by the Arbitrator in relation
to the quantum of amounts
payable to the Employees. That issue fell away as soon as a decision
was reached that the initial arbitration
award in any event ought to
be reviewed and set aside.
[13]
Accordingly, the following order is made;
Order:
1. The arbitration award
dated 3 July 2017 issued by the First Respondent under case
number ECD091613, is reviewed, set
aside and substituted with an
order that the failure or refusal by the Applicant to pay to the
Fourth and Fifth Respondents a scarce
skills allowance, did not
constitute an unfair labour practice within the meaning of section
186(2) (a) of the Labour Relations
Act.
2. There is no order as
to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
P N Kroon SC with A. Rawjee, instructed by Joubert
Galpin Searle Inc.
For
the Respondents: No
Appearance
[1]
Act
32 of 2000 (as amended)