IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: DA6/03
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL
FOR TRANSPORT: KWAZULUNATAL 1 1ST APPELLANT
PREMIER OF THE PROVINCE OF
KWAZULUNATAL 2ND APPELLANT
V. CUNLIFF 3RD APPELLANT
GENERAL PUBLIC SERVICE
SECTORAL BARGAINING
COUNCIL 4TH APPELLANT
and
HARRY JELE RESPONDENT
___________________________________________________________
JUDGEMENT
ZONDO JP
Background
1 The 1 st appellant had been cited as Minister of Transport, KwazuluNatal. It was common cause that what was meant
was the Member of the Executive Council for Transport, Kwazulu Natal. Constitutionally there is no functionary
known as the Minister of Transport in a provincial government. Accordingly, the correct citation has been substituted.
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[1] In May 2000 the Department of Transport in the Province of KwaZulu
Natal caused a post of Chief Director: Corporate Services to be advertised in
the Sunday Times of 21 May 2000. The respondent, who, at the time, was
employed as Deputy Director in the Department of Health, KwaZuluNatal
Provincial Government, applied for appointment to the post. The third
appellant also applied for appointment to the same post. I am sure that there
were other candidates besides the two who also applied.
[2] The respondent was not successful in his application. The third appellant
was appointed to the post. The respondent was aggrieved by his not being
appointed. He considered that the conduct of the first appellant, or, of his
Department, not to appoint him constituted an unfair labour practice as defined
at the time in item 2(1)(b) of schedule 7 to the Labour Relations Act, 1995
(Act 66 of 1995)(“ the Act ”). The provision of this item will be quoted shortly.
The first appellant or the Department maintained that the decision was lawful,
fair and justified.
[3] In due course the respondent referred an unfair labour practice dispute to
the General Public Service Sectoral Bargaining Council, the fourth appellant,
for initially conciliation and, when conciliation failed, for arbitration, by the
bargaining council. The respondent based his claim on the provision of item
2(1)(b) of Schedule 7 to the Act. Item 2(1)(b) read thus at the time:
“For the purposes of this item an unfair labour practice means an unfair
act or omission that arises between an employer and an employee
involving –
a) …
b) the unfair conduct of the employer
relating to the promotion, demotion
or training of an employee or relating
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to the provision of benefits to an
employee.”
In terms of item 2(3) and (4) of the same Schedule an unfair labour practice
dispute falling within the ambit of par (b) of item 2(1) was required to be
referred to arbitration if conciliation failed. Paragraph (a) dealt with an unfair
labour practice dispute relating to appointment. The latter dispute was required
to be referred to the Labour Court for adjudication if conciliation failed.
[4] In the bargaining council the point was taken on behalf of the first and
second appellants that the bargaining council did not have jurisdiction in
respect of the dispute. The basis advanced for this objection to the bargaining
council’s jurisdiction was that item 2(1)(b) was not applicable to a dispute
concerning the nonappointment of a candidate to a post but related to conduct
concerning the promotion of a candidate to a higher post. It was argued that a
candidate can only be promoted by its employer and not by someone who is
not its employer.
[5] It was further contended that the respondent was not employed at the
relevant time by the first appellant and, because of that, it could not be said
that the dispute related to promotion as contemplated by item 2(1)(b). It was
submitted that the dispute related to nonappointment which fell outside the
jurisdiction of the bargaining council and fell within the jurisdiction of the
Labour Court. The respondent disputed the correctness of the first and second
appellant’s contention in this regard. He submitted that he was employed by
the State in the public service and that, if he had been appointed to the post in
question in the Department of Transport, KwaZulu – Natal, he would still have
been employed by the State albeit in a different department and such
appointment would have been a promotion for him. The bargaining council
upheld the first and second appellants’ objection and held that it did not have
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jurisdiction.
[6] The respondent brought an application in the Labour Court to review
and set aside the decision of the arbitrator. The Labour Court granted that
application. It held that the respondent’s employer was the State and that his
appointment to the post of Chief Director in the Department of Transport
would have been a promotion for him and, that, for that reason, the provision
of item 2 (1)(b) was available to him. Pursuant to an application for leave to
appeal to this Court, the Court a quo granted the first and second appellants
leave to appeal. This, then, is the appeal against the order of the Court a quo.
The appeal
[7] The only issue in this appeal relates to the identity of the respondent’s
employer at the time of the decision not to appoint him. On behalf of the first
and second appellants it was submitted that the respondent’s employer was the
Member of the Executive Council for Health, KwaZulu – Natal or the Head of
that Department and that there was no employment relationship between him
and the first or second appellant and that, for that reason, item 2(1)(b) was not
available to him and that the arbitrator had no jurisdiction to arbitrate the
dispute. It was submitted that the Court a quo had erred in making the decision
that it made in this regard. The respondent maintained that his employer was
the State and not the Member of the Executive Council for Health but that the
latter simply represented the State just as the first appellant also represented
the State in relation to employees in the Department of Transport in the
KwaZulu Natal Provincial Government and that appointment to the post of
Chief Director in the Department of Transport would have been a promotion
for him. He submitted that, if he had been appointed to the post, this would not
have meant a change of employers. He submitted that his employer would
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have remained the same, namely, the State.
[8] There can be no doubt that in an unfair labour practice promotion
dispute provided for in item 2 (1) (b) the applicant must be in the employ of
the employer referred to in item 2(1)(b) before he can rely thereon. In other
words there cannot be a dispute relating to promotion unless there is an
employment relationship between the parties concerned. However, the
question in this case is who the respondent’s employer was at the time that the
decision was taken not to appoint him to the post of Chief Director in the
Department of Transport. If his employer before and after such decision would
have been the same and was the State, the appeal must fail because then his
appointment to the post in question would have constituted a promotion. If,
however, his employer before the decision and his employer after a successful
application for appointment to the post would have been different people or
entities, the appeal must succeed.
[9] In support of his contention, Counsel for the first and second appellants
referred to certain provisions of the Constitution as well as various provisions
of certain statutes. I turn to deal with provisions the Constitution as well as
those of various statutes. We were referred to some of the provisions that I
shall deal with but there are also others that I deal with to which we were not
referred but which, in my view, help to throw light on the issue at hand.
[10] Sec 1 of the Constitution of the Republic of South Africa NO 108 of
1996 (“the Constitution”) reads in part: “The Republic of South Africa is
one, sovereign, democratic state founded on the following values …” (my
emphasis). Sec 40 of the Constitution provides:
“40. Government of the Republic, (1)
In the Republic, government is constituted as national, provincial and
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local spheres of government which are distinctive, interdependent and
interrelated.
2) All spheres of government must observe and
adhere to the principles in this chapter and must
conduct their activities within the parameters that
the Chapter provides.”
The chapter referred to in sec 40 (2) deals with cooperative government.
[11] Sec 85 of the Constitution deals with the executive authority of the
Republic. Sec 85(1) reads: “The executive authority of the Republic is
vested in the President”. Sec 85(2)(c) gives the President the authority of
“coordinating the functions of state departments and administrations .”
Sec 103 of the Constitution gives a list of the provinces of the Republic. Sec
125 vests the executive authority of a province in the Premier of that province.
Sec 132(2) provides: “ The Premier of a province appoints the members of
the Executive Council, assigns their powers and functions and may
dismiss them. ” Sec 133(1) provides that “( m)embers of the Executive
Council are responsible for the functions of the executive assigned to them
by the Premier.” Chapter 10 of the Constitution deals with public
administration. Sec 195(1) provides that “(P)ublic administration must be
governed by the democratic values and principles enshrined in the
Constitution, including the following principles” and various principles are
then set out. Subsection 2 then provides that those principles “apply to
a) Administration in every sphere of government;
b) Organs of state
c) public enterprises.”
[12] Sec 196(1) of the Constitution provides: “ There is a single Public
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Service Commission for the Republic.” Subsection (2) provides, among
other things, that the Public Service Commission “ must exercise its powers
and perform its functions … in the interest of the maintenance of effective
and efficient public administration and a high standard of professional
ethics in the public service.” Sec 196(4) sets out powers and functions of the
Public Service Commission. These include the power “ to propose measures
to ensure effective and efficient performance within the public service;” ,
“to give directions aimed at ensuring that personnel procedures relating
to recruitment, transfers, promotions and dismissals comply with the
values and principles set out in section 195” , “ to investigate grievances of
employees in the public service concerning official acts or omissions, and
recommend appropriate remedies, and to advise national and provincial
organs of state regarding personnel practices in the public service,
including those relating to the recruitment, appointment, transfer,
discharge and other aspects of the careers of employees in the public
service.”
[13] Sec 197 of the Constitution deals with public service. It provides thus:.
“(1) Within pubic administration there is a public service for the
Republic, which must function and be structured, in terms of national
legislation, and which must loyally execute the lawful policies of the
government of the day.
(2) The terms and conditions of employment in the public service must
be regulated by national legislation. Employees are entitled to a fair
pension as regulated by national legislation.
3) Provincial governments are responsible for the
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recruitment, appointment, promotion, transfer
and dismissal of members of the public service in
their administrations within a framework of
uniform norms and standards applying to the
public service.”
[14] In sec 213 of the Act public service is defined as meaning “the national
departments, provincial administrations, provincial departments and
organizational components contemplated in section 7 (2) of the Public
Service Act, 1994 (promulgated by Proclamation 103 of 1994 but
excluding
(a) the members of the South African National Defence Force
(b) the National Intelligence Agency; and
(c) the South African Secret Service.”
Section 239 of the Constitution defines the phrase “organ of state” as
meaning:
“(a) any department of state or administration in the national, provincial
or local sphere of government; or
(b) any other functionary or institution –
a. exercising power or performing a
function in terms of the Constitution
or a provincial constitution;
b. exercising public power or
performing a public function in terms
of any legislation, but does not include
a court or a judicial officer.”
[15] It is clear from sec 197(4) of the Constitution that employees employed
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in the provincial governments are part of the public service particularly in the
light of the definition of public service in the Act. It is clear from sec 197(3) of
the Constitution that provincial governments have the authority or power to
recruit, appoint, transfer, promote and dismiss members of the public service
in their administrations. It is also clear from the definition of “organ of state”
that a department in a provincial administration is an organ of the state.
[16] There is no definition of the word “ employer” in the Act.
However, there is one for the word “ employee” in sec 213 of the Act and
Counsel for the first and second appellants referred us to that definition. The
word “ employee” is defined in sec 213 of the Act as meaning –
“(a) any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled to receive,
any remuneration; and
(b) any other person who in any manner assists in carrying on or
conducting the business of an employer,” and ‘ employed’ and ‘ employment’
have meanings corresponding to that of ‘employee’.
[17] From the definition of the word “ employee” in sec 213 of the Act, there
can be no doubt that the State is an employer. The respondent was employed in
a provincial government department. A provincial government is part of the
State. Accordingly, unless there is a statutory provision which suggests
strongly that there is another entity other than the State which was the
respondent’s employer, it should be accepted, on the basis of the definition of
“employee” in sec 213 of the Act and the fact that it is common cause that the
respondent worked in a provincial government department, that his employer
was the State and that, if he had been appointed to the post, his employer
would have continued to be the State. Accordingly, the definition of the word
would have continued to be the State. Accordingly, the definition of the word
“employee” does not assist Counsel for the first and second appellants.
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[18] In support of his contention Counsel for the first and second appellants
also referred to the definition of the word “ workplace” in the Act as amended
by the Labour Relations Amendment Act, 2002 (Act No 12 of 2002). In
particular he referred to par (a)(ii) of that definition. It provides that the word
“workplace” means “(a) in relation to the public service
(i) for the purposes of collective bargaining and dispute resolution, the
registered scope of the Public Service Coordinating Bargaining Council
or a bargaining council in a sector in the public service, as the case may
be; or
(ii) for any other purpose, a national department, provincial
administration, provincial department or organizational component
contemplated in section 7(2) of the Public Service Act, 1994 (promulgated
by Proclamation NO. 103 of 1994), or any other part of the public service
that the Minister for Public Service Administration, after consultation
with the Public Service Coordinating Bargaining Council, demarcates as
a workplace.”
(b) …
(c) in all other instances means the place or places where the employees
of an employer work. If an employer carries on or conducts two or more
operations that are independent of one another by reason of their size,
function or organisation, the place or places where employees work in
connection with each independent operation, constitutes the workplace for
that operation.”
[19] The definition of the word “ workplace” does not in any way support the
submission by Counsel for the first and second appellants in regard to the
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identity of the respondent’s employer. The fact that a provincial department
may be a workplace on its own is neither here nor there. That cannot make it
the employer nor is it a useful factor in the determination of the identity of the
respondent’s employer. Even in the private sector different branches of a
company which operate in different places may be workplaces in their own
right in terms of that part of the definition of the word “workplace” which
applies to the private sector. In regard to the private sector that would not
mean that each branch is the employer of the employees working in that
branch. The company would still be the employer of all the employees in the
various branches as well as those based at the headquarters of the company.
(see par (c) of the definition of the word “ work place ” in sec 213 of the Act.)
[20] The provisions of sec 197(1), (2) and (4) of the Constitution have been
quoted above. At this stage it is not necessary to quote them again. It is
sufficient to simply make the points that:
(a) subsection (1) gives recognition to the existence of a public service for
the country which, it says in part, must function and be structured in terms of
national legislation and,
(b) subsection (2) provides that the terms and conditions of employment in
the public service must be regulated by national legislation.
Subsection (4) clearly contemplates that employees employed in the provincial
governments are part of the public service. It provides: “Provincial
governments are responsible for the recruitment, appointment,
promotion, transfer and dismissal of members of the public service in
their framework of uniform norms and standards applying to the public
service.”
[21] In terms of the preamble to the Public Service Act, 1994 (Act 103 of
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1994) (“ the PSA ”) the purpose of that Act is “ to provide for the organisation
and administration of the public service of the Republic, the regulation of
the conditions of employment, terms of office, discipline, retirement and
discharge of members of the public service, and matters connected
therewith.” In sec 1 the term “ public service ” is defined as meaning “ the
public service contemplated in section 8 .” Sec 8(1) sets out what the public
service consists of. Sec 8(1)(a) reads thus:
“The public service shall consist of persons who –
a) hold posts on the fixed establishment –
i) classified in the A division and the B
division
ii) in the services;
iii) in the Academy, the Agency or the
Service; and
iv) in the state educational institutions” :
Fixed establishment as referred to in sec 8(1) (a) is defined in sec 1 as meaning
“the posts which have been created for the normal and regular
requirements of a department.” A “ department” is defined as meaning “ a
national department, a provincial administration or a provincial
department.” From the definition of “ fixed establishment” , that of
“department” and the provision of sec 8(1)(a), it is clear that employees in a
provincial department are employed in the public service.
[22] The provisions of Sec 8(1)(b) and (c) provide, respectively, that, among
persons in the public service are those who,
“8(1)(b) having ceased to hold posts on the fixed establishment
contemplated in paragraph(a), and not having retired or having been
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discharged, are employed additional to the fixed establishment or who are
deemed to continue to hold posts under the circumstances contemplated in
subsection 3(c);
(ii) are appointed permanently additional to the fixed establishment;
(c) (i) hold posts on the fixed establishment other than posts referred to in
paragraph (a);
(ii) are employed temporarily or under a special contract in a
department, whether in a fulltime or parttime capacity, additional to the
fixed establishment or in vacant posts on the fixed establishment.”
[23] Sec 7(1) of the PSA provides that the public service established by sec
197(1) of the Constitution “ shall be structured and organized as provided
for” in national legislation. The PSA is, in my judgement, such national
legislation. Sec 7(2) reads: “ For the purposes of the administration of the
public service there shall be national departments and provincial
administrations mentioned in the first column of Schedule 1, provincial
departments mentioned in the first column of Schedule 2 and the
organizational components mentioned in the first column of Schedule 3.”
Sec 7(3)(a) provides that “(e)ach department shall have a head of
department who as an officer shall be the incumbent of the post on the
fixed establishment bearing the designation mentioned in the second
column of Schedule 1 or 2 opposite the name of the relevant department
or the officer who is acting in that post .” Sec 7(3)(b) provides that
“(s)ubject to par(c) and (d), a head of department shall be responsible for
the efficient management and administration of his or her department,
including the effective utilisation and training of staff, the maintenance of
discipline, the promotion of sound labour relations and the proper use and
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care of State property and he or she shall perform the functions that may
be prescribed.”
[24] Sec 9(1) of the PSA gives the power to appoint, transfer or promote an
officer or employee “ in the employ of a department ” to the relevant
executing authority or an officer or officers to whom such authority has been
delegated by the person who has such authority. Sec 9(2) requires that, subject
to the provisions of chapter IV, appointments and promotions in, and transfers
in or to, the public service be made in such manner and on such conditions as
may be prescribed. Sec 14(1) provides that “(s)ubject to the provisions of
this Act every officer or employee may, when the public interest so
requires, be transferred from the post or position occupied by him or her
to any other post or position in the same or any other department
irrespective of whether such a post or position is in another division or is
in a lower or higher grade or is within or outside the Republic ”. Sec 14(2)
(b) provides that, when a transfer is from one department to another
department, the approval of the persons who, in respect of each of those
departments, have the power to transfer must first be obtained.
[25] Sec 30(a) reads: “ Unless it is otherwise provided for in his or her
conditions of employment –
(a) every officer and employee shall place the whole of his or her time
at the disposal of the State;”
The word “ officer” in sec1 of the PSA is defined as meaning “ a person who
has been appointed permanently, notwithstanding that such appointment
may be on probation, to a post contemplated in section 8 (1)(b) or 8 (3)
(c).” The word “employee” in the PSA is defined as meaning “a person
contemplated in section 8 (1) (c).” It seems to me that, read with the
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definitions of “officer” and “ employee”, the provision of sec 30(a) is such that
it covers every person employed within the public service as contemplated in
sec 8 of the PSA. That being the case, the respondent must, no doubt, also have
been a member of the public service in the position he held when he was
unsuccessful in his application for appointment to the post in question. It also
seems to me that, in the light of those definitions, if the respondent had been
appointed to the post, he would have continued to be employed within the
public service.
[26] The provision of sec 30 (a) of the PSA is a strong indication, if not a
decisive factor, that, unless there is another statutory provision elsewhere
specifying another person or entity as an employer for some officers or
employees as defined in sec 1 of the PSA, the employer of every officer and
every employee as contemplated in sec 30 (a) read with the definitions of the
terms “officer” and “employee” in sec 1 of the PSA, is the State. It is also a
strong indication that, if the definitions of the terms “ officer” and “ employee”
in the PSA cover everyone employed in the public service as contemplated in
sec 8 of the PSA, then the State is the employer of everyone in the public
service contemplated by sec 8 of the PSA. Obviously, anyone in respect of
whom there is a specific statutory provision specifying some or other entity or
official or functionary as the employer is in law employed by that person,
entity or official or functionary.
[27] In the case of educators it is to be noted that the Employment of
Educators Act No 76 of 1998 makes a specific provision as to who the
employer of educators is in certain circumstances or for certain purposes. The
definition of the word “ employer” in that Act means, in relation to any
provision of Chapters 4, 5 or 7 which applies to, or, is connected with, an
educator in the service of the national department of education, the Director–
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General; in so far as such provision applies to, or, is connected with, an
educator in the service of a provincial department of education, the word
“employer” is defined as meaning the Head of Department. Section 3(1)(a) of
that Act provides that, save as is otherwise provided for in that section, the
Director –General shall be the employer of educators in the service of the
Department of Education in the posts on the educator establishment of the said
Department. Sec 3(1)(b) provides that, save as is otherwise provided for in that
section, the Head of Department shall be the employer of educators in the
service of the provincial department of education in the posts on the educator
establishment of that department. Subsections 2, 3, 4 and 5 make other
provisions relating to the identity of the employer of certain educators or of
educators for certain purposes.
[28] I have said that the effect of sec 30 (a) is that all officers and employees
in the public service as contemplated in sec 8 of the PSA are employed by the
State and the State is their employer. I say this because the provision of sec 30
(a) is worded in a manner that is similar to saying that officers and employees
make their capacity to produce over to the State. In my judgment that is what
sec 30 (a) means. A person who makes his capacity to produce over to another
is an employee of the other person (see Brassey: “The Nature of
Employment” (1990) 11 ILJ 889 at 899 and 935 – 936 as approved in
Niselow v Liberty Life Association of Africa Ltd (1998) 19 ILJ 752 (SCA)
at 753J – 754A) . Accordingly, officers and employees are employed by the
State. I have no doubt that the respondent fell within one of these two terms in
his position and would have continued to fall within one of these terms had he
been appointed to the position for which he had applied.
been appointed to the position for which he had applied.
[29] Sec 40 of the PSA deals with the limitation of State liability. It reads
thus:
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“Whenever any person is conveyed in or makes use of any vehicle, aircraft
or vessel which is the property of the State, the State or a person in the
service of the State shall not be liable to such person or his or her spouse,
parent, child or other dependant for any loss or damage resulting from
any bodily injury, loss of life or loss of or damage to property caused by or
arising out of or in any way connected with the conveyance in or the use of
such vehicle, aircraft or vessel, unless such person is so conveyed or makes
use thereof in, or in the interest of, the performance of the functions of the
State: Provided that the provisions of this section shall not affect the
liability of a person in the service of the State who willfully causes the said
loss or damage.”
Sections 30(a) and 40 of the PSA refer, quite clearly, to, among others, persons
in the service of the State, once again emphasizing the notion of the State as an
employer.
[30] In support of his contention Counsel for the first and second appellants
also referred to the definition of the word “ employer” in sec 1 of the Public
Service Labour Relations Act, 1994 (the PSLRA”). Sec 1 (xiii) of the PSLRA
defines the word “employer” as meaning “the State as employer as
represented
(a) at central level, by representatives appointed for that purpose by
the responsible Minister; and
(b) at departmental level, by representatives appointed for that purpose
by head of department concerned”
A department is defined in sec 1 (viii) as meaning “a department as defined
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in section 1 (1) of the Public Service Act.” Sec 1 of the PSA defines a
department as meaning “a national department, a provincial administration
or a provincial department.” The word “employee” in the PSLRA is defined
as meaning “ an officer or employee as defined in section 1(1) of the Public
Service Act, and includes, for the purposes of section 18,22(2)(a), 23, 24
and 25, as well as section 22 in so far as it pertains to the said sections, a
person who was such an officer or employee, but does not include
(a) a person employed in terms of an Act other than the Public Service
Act; and
(b) a person whose salary and conditions of employment are
determined according to general education policy in terms of section 2(1)
(b) and (2) of the National Policy for General Education Affairs Act, 1984
(Act NO 76 of 1984).”
In this connection Counsel drew our attention to the fact that the PSLRA is one
of the Acts which were repealed by sec 212 of the Act (see schedule 7 to the
Act). He also drew our attention to the fact that item 15 of schedule 7 to the
Act provides that, read with the changes required by the context, certain of the
provisions of the PSLRA which include section 1, assumed when the Act come
who operation, unless the context indicated otherwise, the status of provisions
of a collective agreement “ binding on the State, the parties to the chambers
of the Public Service Bargaining Council and all employees in the public
service.”
[31] Counsel also drew our attention to the provisions of sec 212(2) and (3)
of the Act. Sec 212(2) reads: “ The repeal of [the laws mentioned in schedule
6 which include the Public Service Labour Relations Act, 1994] does not
affect any transitional arrangements made in schedule 7.” Sec 212(3)
provides that the transitional arrangements in Schedule 7 of the Act must be
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read and applied as substantive provisions of the Act. Sec 212(3) may be in
conflict with the provision of item 15 to the extent that the last mentioned
provision is to the effect that certain parts of the provisions of the PSLRA set
out therein have the status of provisions of a collective agreement. Happily, it
is not necessary for purposes of this judgement to decide whether, indeed, the
two are in conflict with each other and, if so, what the legal effect thereof is.
[32] An observation needs to be made at this stage that item 15 of Schedule 7
expressly provides that the provisions of the PSLRA set out in that item are
binding on, among others, “ the State, the parties to the Public Service
Bargaining Council and all employees in the public service.” (underlining
supplied). Quite obviously the State is referred to in that item as the employer
of persons employed in the public service because that is the capacity in which
the provisions of the PSLRA refer to the State. (see the definition of
“employer” in sec 1 of the PSLRA). Counsel for the first and second
appellants also sought to rely on the reference to the “ parties to the Public
Service Bargaining Council” appearing in item 15 to support the contention
that individually government departments are employers in their own rights.
The argument seems to have been that government departments are employers
who are also parties to the Public Service Bargaining Council or to its
constituent Chambers. Along this submission Counsel for the first and second
appellants submitted that the provisions of sec 5 of the PSLRA fortified the
contention that provincial departments are employers in their own right and
that, therefore, the respondent’s employer was the provincial department of
Health or the Member of the Executive Council for Health and not the State.
Health or the Member of the Executive Council for Health and not the State.
[33] Sec 5(1) of the PSLRA reads: “ There is hereby established a Public
Service Bargaining Council.” Sec 5(2) reads: “ The Council [which in terms
of the definition of the word “council” in section 1 of the PSLRA means
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the Public Service Bargaining Council] shall consist of a chamber at
central level, a chamber for each department at departmental level, and
the parties in the various chambers shall be the employer concerned and
such employee organizations as are admitted to the relevant chamber in
accordance with the provisions of this Act and the constitution of the
relevant chamber of the Council” (underlining supplied). The definition of a
department has already been given above. Accordingly, it is not necessary to
repeat it. Sec 5(3) of the PSLRA goes on to provide that “(a) p arty in a
chamber of the Council shall be represented by a person authorized
thereto by such party or by law.” Subsection (4) then reads: “ The
employer’s power in regard to the subject to be negotiated, shall
determine in which chamber of the Council negotiations shall take place,
and shall also determine the representation of the employer as
contemplated in the definition of employer.”
[34] It is clear that in each of the different chambers of the Public Service
Bargaining Council there would be at least one employer party and one or
more employee organisations which have been admitted to that chamber.
However, that does not necessarily mean that each employer party is the
employer in the true sense. It simply is a representative of the employer. This
has to be so for at least two reasons. The one is that the definition of the word
“employer” in sec 1 of the PSLRA gives only one legal entity as the employer
and that is the State. That definition has already been given earlier in this
judgment and need not be repeated. Accordingly, whenever the word
“employer” is used anywhere in the PSLRA, it has to mean the State, which,
“employer” is used anywhere in the PSLRA, it has to mean the State, which,
as employer, may be represented by different representatives at different
levels. Furthermore, the provision of ss(4) of sec 5 of the PSLRA makes it
clear, after a reference to the idea that there are a number of chambers, that the
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employer is the same and it is the State. Subsection (4) makes this clear when
towards the end it says “… and shall also determine the representation of
the employer as contemplated in the definition of employe r.” (underlining
supplied).
[35] In my judgement the clarification provided by sec 5(4) of the PSLRA
that there is only one employer – who may be represented by different
representatives at different levels in different chambers – demonstrates as
clearly as it possibly can be demonstrated that there is absolutely no support in
the provisions of the PSLRA for the submission made by Counsel for the first
and second appellants that the respondent’s employer was the Health
Department or the Member of the Executive Council for Health. As the
PSLRA makes it clear that the State is the employer of employees in both
national government departments as well as in provincial administrations and
provincial departments, to the extent that any Act other than the Constitution
may provide otherwise, the provisions of the PSLRA would prevail. This is so
because in terms of ss(3) read with ss(1) and (2) of sec 212 of the Act the
provisions of the PSLRA are to be read and applied as substantive provisions
of the Act and this means that sec 210 of the Act applies to them. Sec 210
provides that in the event of a conflict between the provisions of the Act and
any other law, excluding the Constitution or any Act expressly amending the
Act, the provisions of the Act prevail.
[36] Counsel for the first appellant submitted that a conclusion that the State
is the employer of any employee who works for a national or provincial
department would create a number of “ insusperable” difficulties. He
submitted that the first one was that sec 2 of the Act provides that the Act does
not apply to members of the National Defence Force, the National Intelligence
not apply to members of the National Defence Force, the National Intelligence
Agency and the South African Secret Service. He also referred to the definition
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of “ public service ” in sec 213 of the Act which includes the national
departments, provincial departments but also makes the same exclusions made
in sec 2 of the Act. He also referred to the fact that item 1 of Schedule 7 of the
Act excludes persons employed in the education sector from membership of
the public service. He went on to point out that in setting out the composition
of the public service, sec 8 of the PSA includes as part of the public service
members of the National Defence Force, the National Intelligence Agency and
the South African Secret Service. Counsel then submitted that such a
conclusion would mean that the State is the employer of the members of the
excluded entities and yet, unlike other employees of the State, such members
would not be able to utilise item 2(1)(b) of Schedule 7 if they had a dispute
relating to promotion. He submitted that that would be unfair discrimination
against the employees of such entities which would be in breach of sec 9 of the
Constitution. That is the equality provision.
[37] The answer to Counsel’s argument in this regard is that the exclusion of
members of the National Defence Force, the National Intelligence Agency and
the South African Secret Services is based upon sec 2 of the Act. Accordingly,
when the State is defined in sec 213 of the Act as the employer in relation to
the public service, this is a reference to the employer of those employees of the
State who are not excluded from the application of the Act. The excluded
employees may well be adequately provided for in another Act and, if that is
so, they could not have any cause for complaint about unfair discrimination on
the basis that they are excluded from using item 2(1)(b).
[38] Counsel for the first and second appellants referred to the fact that in
1997 the definition of the word “ employer” in the PSA which meant
1997 the definition of the word “ employer” in the PSA which meant
“employer” as defined in the PSLRA was deleted by an amendment of the
PSA. Counsel then submitted that this supported the contention that in the
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public service there is a multiplicity of employers and the State is not the
employer of employees in national and provincial departments. One answer to
this is simply that the word “employer” with which this matter is concerned is
in the Act and not the PSA and it is clear from both the Act and the PSLRA –
the latter being said in terms of sec 212 of the Act to be substantive part of the
Act – that the word “ employer” in item 2(1)(b) of Schedule 7 of the Act
means, in relation to the public service, the State as the employer and that in
that capacity the State also employs employees such as the respondent who are
employed in provincial departments.
[39] In these circumstances I conclude that the respondent’s employer for
purposes of item 2(1)(b) was the State. That employer would have continued to
be his employer even after appointment to the post of chief director in the
Department of Transport if he had been appointed. The first appellant and the
Member of the Executive Council for Health, KwaZuluNatal, are simply
representatives of the State.
[40] In the light of the conclusion that I have reached above, the appeal must
fail. There is no reason why costs should not follow the result.
[41] In the premises I make the following order:
1. The appeal is dismissed.
2. The first appellant is ordered to pay the respondent’s costs.
Zondo JP
I agree.
Willis JA
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I agree.
Davis AJA
Appearances:
For the respondent : Mr B. Purdon
Instructed by : Brett Purdon Attorneys
For the appellant : Adv V. Soni SC
Instructed by : The State Attorney
Date of judgement : 9 September 2004
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