About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2025
>>
[2025] ZALCCT 38
|
|
Minister of Justice and Correctional Services v POPCRU obo Basini (C323/2021) [2025] ZALCCT 38; (2025) 46 ILJ 2526 (LC) (5 June 2025)
amended
9 june 2025
THE
LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Of interest to other
judges
case
no: C 323/2021
In
the matter between:
THE MINISTER OF
JUSTICE &
Applicant
CORRECTIONAL SERVICES
And
POPCRU OBO M J
BASINI
First Respondent
GENERAL PUBLIC
SERVICE
Second Respondent
SECTORAL
BARGAINING
COUNCIL
JP
HANEKOM
Third Respondent
Heard
:
29
May 2025
Delivered
:
05 June 2025
Summary:
(Review – interpretation or
application dispute – no dispute over interpretation –
arbitrator not misdirecting
himself by dealing with the dispute as a
dispute over the application of a collective agreement – OSD
agreement not applicable
only to incumbents at the time of inception
– order of payment of correct remuneration competent relief
under s 138(9) of
the LRA) in a dispute about the application of a
collective agreement)
JUDGMENT
[1]
LAGRANGE, J
Introduction
[1]
This is an opposed review application. There is also an application
for condonation for the late filing of the first respondent’s
answering affidavit.
[2]
An objection was raised by the applicant to the late answering
affidavit and a condonation application was filed.
The delay
was over a year and caused by the first respondent’s illness
and problems caused by the first respondent’s
late realisation
that his union would not pay the legal costs of opposition to the
review. Ultimately the respondent did not file
an opposing affidavit,
and did not argue what prejudice it had suffered. Most of the
prejudice suffered fell on the first respondent.
In all the
circumstances, I am satisfied the late filing of the answering
affidavit should be condoned.
Background
[3]
On 1 May 2013, the first respondent, Mr M Basini (‘Basini’),
was appointed as a Centre Based Coordinator:
Staff Support grade CB4.
In April 2019 he learnt that an award had been made on 17 September
2018 in which the arbitrator had found,
in a dispute concerning the
application and interpretation of General Public Service Sectoral
Bargaining Council Resolution 2 of
2009, that a Centre Coordinator of
a Medium or Large
Centre was
supposed to be on salary level CB5 and not categorised as a Security
Manager on level CB4.
[4]
Armed with knowledge of
the award, on 22 July 2019, he too referred a dispute con
cerning
the interpretation and application of the resolution, which is a
collective agreement. He claimed he was in the same position
as the
beneficiaries of the 2018 and he should also be recognised as being
on salary level CB4. Basini was represented by
his union,
POPCRU.
[5]
Notwithstanding the 2018 award, his employer, the Department of
Correctional services (‘the department’) did
not agree.
It argued that he did not occupy a CB5 post and that Resolution 2 of
2009 would only have applied to Basini if he had
occupied the post at
the time it came into effect on 1 July 2009. Because he was
only promoted in May 2013, he did not benefit
from the OSD regrading
but was engaged on the grade currently applicable to the job at the
time of his promotion, namely CB4.
[6]
In the pre-arbitration minutes there is nothing to suggest that the
department had claimed that the true nature of the
dispute was an
unfair labour practice relating to promotion, but it did advance this
argument in the arbitration hearing. It also
argued that, in terms of
clause 7.1 of the agreement, Basini could only have been translated
to level CB5 if he had been an incumbent
of the post on 1 July 2009
when the OSD agreement came into effect. The pertinent portion of
clause 7 reads:
“
7. TRANSLATION
MEASURES FOR CORRECTIONAL OFFICIALS - PHASE 1
7.1
Translation to the OSD for correctional officials shall be subject to
the following principles:
7.1 .1 the employee
must be an incumbent in the post and;
7.1.2 must be
performing the functions of the post (job).
7.2 Correctional
officials shall translate to the appropriate salary scales in
accordance with the posts that they currently occupy.”
The award
[7]
The arbitrator found it was common cause that Basini held the
position of Centre Coordinator: Staff Support at a medium institution
on salary band CB 4, and the salary band for that position is CB5 in
terms of the OSD.
[8]
Basini
wanted his post aligned with the OSD. The department had argued that
the post of Centre Coordinator did not exist on the
establishment at
the time Basini was appointed in 2013 and that the translation was a
once off event in 2009 before he was appointed
to the post. The
arbitrator rejected these arguments. He held that the introduction of
OSD was not a once off event after which
OSD disappeared. After the
initial translation phase, the salary structure and other provisions
of OSD remained in place and future
appointments had to conform with
it.
In light of these factors and relying on a dictum in the LAC decision
in
Hospersa
obo Tshambi v Department of Health, KwaZulu-Natal
[2]
,
the arbitrator found that the dispute concerned the application of
the OSD agreement.
[9]
Of his own accord, the arbitrator raised the question whether the
referral of the dispute had been made within a reasonable
time in
accordance with the principles set out in the Labour Appeal Court
decision in
Tshambi.
Although Basini’s appointment had
taken place in 2013, the arbitrator found the dispute about his
salary level arose around
April 2019, when he became aware of the
2018 arbitration award referred to earlier. Prior to that he had been
unaware of the provisions
of the OSD agreement but acted as soon as
he was. Consequently, the arbitrator found Basini’s referral of
his dispute was
made within a reasonable time.
Grounds of review
[10]
The department asserted in its founding affidavit there was no
dispute about what the OSD resolution meant.
[11]
It argued that the arbitrator misconceived the true nature of the
dispute as one of interpretation of clause 6 of the
resolution and
this was done to circumvent the 90 day time period, which applies to
referrals of unfair labour practices in terms
of s 191(b)(ii) of the
Labour Relations Act, 66 of 1995 (‘the LRA’). In the
absence of condonation application, the
arbitrator had no
jurisdiction to hear the dispute. The department argued the true
nature of the dispute concerned Basini’s
promotion in 2013.
Accordingly, the referral of his dispute in 2019 was well out of
time. The department contended that because
the arbitrator
misconstrued the dispute, he failed to consider the undue delay in
referring it.
[12]
An alternative version about the true nature of the dispute emerged
in the department’s supplementary affidavit,
where it advanced
an argument that Basini was not disputing the interpretation of the
OSD agreement but whether it had been correctly
applied to him.
Essentially, that amounted to a claim for arrear wages and should
have been pursued as a contractual claim.
[13]
Secondly, it argues that because Basini was promoted to the position
of Centre Co-ordinator on 1 May 2013, he was not
occupying the
position when the OSD agreement took effect on 1 July 2009.
Consequently, he did not meet the incumbency requirement
of clause
7.1.1 and could not qualify for remuneration on the OSD scale.
[14]
Clause 6 (Translation Measures) of the resolution set out the salary
structures that would apply to centre based and
non-centre based
staff. It reads:
“
6.1
TRANSLATION MEASURES
6.1.1 Centre Based and
Non-Centre Based Correctional Officials, as defined in this agreement
shall translate to the OSD, which shall
provide for the following:
(1) Unique Remuneration
Structure
The introduction of a
unique remuneration structure, with 3% increments between the
notches.
(2) Differentiated
Dispensation
Differentiated
salary structures 4 Centre Based and Non-Centre Based Correctional
Officials attached as an annexure A1 (Centre Based),
and annexure A2
(Non-Centre Based)
and as summarised
hereunder:
…
[
Table setting out work streams , OSD bands and occupational groups
relating to each band] …
(3)
Centre Based Correctional Officials
shall translate to the appropriate salary scales in accordance with
Annexure Basini.
(4) Non-Centre Based
Correctional Officials shall translate to the appropriate salary
scales in accordance with annexure B2.”
Evaluation
The nature of the dispute
[15]
Basini was promoted in May 2013 to the post of Centre Co-ordinator:
Staff Support in the Overberg (Helderstroom) Management
Area of the
department on salary level CB4. It was only six years later that he
learned that his salary on promotion might have
been incorrect. This
was not a dispute about not being promoted. It was a dispute about
the correct level he should have been paid
on the OSD scale once
promoted or, to use the language of the LAC in
Tshambi
,
whether the OSD resolution 2 of 2009 could be ‘
invoked
’
in his case, to determine that his correct level of remuneration was
stipulated in clause 6.1 of the OSD for Centre Based
Coordinator in a
Medium Centre. I am satisfied that the existence of Basini’s
promotion to the position, which was common
cause, was a precondition
for entertaining the question what his correct level of remuneration
should have been. Considering
the above, I am satisfied the
arbitrator did not misconceive the nature of the dispute before him.
It was a dispute about the application
of the agreement to Basini and
that is what he determined.
The question of
incumbency
[16]
Clause 1 of Public Service Coordinating Bargaining Council Resolution
1 of 2007 initiated the introduction of the OSD
system. Clauses 1.2
and 1.3 of the resolution identified it as one of the objectives of
the agreement, viz:
“
1.2 To
introduce
revised salary structures
per identified occupation that caters
for career pathing, pay progression, grade progression, seniority,
increased competencies
and performance with a view to attract and
retain professionals and other specialists.
1.3 To
replace
the
existing Scarce Skills Framework for the public service
with
the introduction of
revised salary structures
.”
(emphasis added)
Clause 4.1 of the same
agreement identified the nature of the new salary structure:
“
4. REVISED
OCCUPATIONALLY SPECIFIC SALARY STRUCTURES
4.1 New salary scales
will be negotiated and implemented per identified occupation to
attract and retain professionals and other
specialists over the
duration of this Agreement. …”
[17]
The OSD salary scale set out in clause 6 of Resolution 2 of 2009
reflected the implementation of an OSD salary structure
for the
department. Because this agreement initiated the OSD salary structure
for the department it necessarily had to spell out
how it would apply
to correctional service staff currently employed on the date of
implementation. This necessitated a method of
identifying which
current employees would be eligible for remuneration on the OSD
salary structure. Clause 7 of the resolution
set out the eligibility
criteria, namely that the employee occupied and performed the
functions of the post appearing on the OSD
salary structure.
[18]
The development of an OSD salary scale for certain posts was not a
temporary once-off event. The objective of developing
the OSD scale
would have been defeated if it had only applied to staff occupying
certain posts on 1 July 2009. That was simply
the inception date of a
new salary structure which replaced the former scarce skills
remuneration structure. It is difficult
to see on what rational
basis the arbitrator could have found that resolution 2 of 2009 was a
once-off event. It is true that staff
whose jobs were not identified
on the OSD scale would remain on the normal public service pay
scales, but there was simply no basis
for the arbitrator to infer
that the OSD scale of CB5 no longer applied to the position Basini
occupied in May 2013.
[19]
The arbitrator’s finding that Basini should have been
remunerated on the CB5 salary level from the date he occupied
a post
on the OSD salary scale was a perfectly reasonable conclusion.
A remuneration dispute is
a contractual matter
[20]
As already mentioned, this argument was raised in the supplementary
affidavit as an alternative argument that the arbitrator
was being
asked to determine a wage claim under the guise of a dispute about
the application of a collective agreement.
[21]
It is true that Basini could have simply issued a demand for payment
of salary shortfalls he suffered since his appointment
and that such
a claim, if valid, might partly have been met with a plea of
prescription. However, among the general provisions
governing
arbitration, section 138(9) of the LRA states:
“
(9)
The commissioner may make any appropriate arbitration award in terms
of this Act, including, but not limited to, an award-
(a)
that
gives effect to any collective agreement;
(b) that
gives effect to the provisions and primary objects of this Act;
(c) that
includes, or is in the form of, a declaratory order.”
[22]
If, as in this case, an arbitrator decides that a particular
provision of a collective agreement stipulating a salary
scale
applies to an employee, an award ordering the employer to pay the
employee in accordance with that scale clearly would be
giving effect
to the agreement. Whether prescription might be raised in respect of
the relief so ordered as it could be raised
in a contractual claim,
does not fall to be considered in this matter, because the department
never raised it in the arbitration.
Conclusion
[23]
For the reasons stated above, I am satisfied that the arbitrator’s
award was one that a reasonable arbitrator could have
made on the
material before him. Consequently, the review application must fail.
[24]
POPCRU argued that the fact that the department still disputed the
award, even though the 2018 award had also found against
it in
a very similar case, warranted a cost award to discourage repeated
attempts to dispute the same issue. The submission
has some
merit, but I am not satisfied the cases were indistinguishable to an
extent that it is inexplicable why the department
took this award on
review. In the circumstances, bearing in mind principles of law and
fairness I am disinclined to make a cost
award.
Order
1.
The late filing of the First Respondent’s answering affidavit
is condoned.
2.
The review application is dismissed.
3.
No order is made as to cost.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
Adv Y Abbas instructed
by
State
Attorney Cape Town
For the First
Respondent: Adv K Qaba instructed by Ntlokwana
Mpikashe Attorneys
[1]
As
varied on 9 June 2025 to correct typographical errors
[2]
(2016) 37 (ILJ) 1839 (LAC), viz:
“
[17]
… A dispute about the interpretation of a collective
agreement requires, at minimum, a difference
of opinion about what a
provision of the agreement means. A dispute about the application of
a collective agreement requires,
at minimum, a difference of opinion
about whether it can be invoked.”