CASE NO : CCT 27/01 In the matter between :
CASSIM FREDERICKS
AND THE FURTHER APPLICANTS LISTED
IN ANNEXURE “A1” HERETO APPLICANTS
and
THE MEC EDUCATION AND TRAINING FOR THE
PROVINCE OF THE EASTERN CAPE FIRST RESPONDENT
PERMANENT SECRETARY – EDUCATION :
CULTURE AND SPORT – EASTERN CAPE SECOND RESPONDENT
MINISTER OF EDUCATION OF THE REPUBLIC
OF SOUTH AFRICA THIRD RESPONDENT
SUPPLEMENTARY SUBMISSIONS ON BEHALF OF RESPONDENTS
In regard to the supplementary directions from the President of the above Honourable Court dated 2 October 2001, the following supplementary submissions are made on behalf of the respondents.
1. Ad Item 12(2), Schedule 7 to the Labour Relations Act 66 of 1995
1.1 The agreement, Resolution 3, was agreed to by the parties to the Education Labour Relations Council (“ELRC”). The Minister was requested, in terms of section 12(6)(a) of the Education Labour Relations Act, 143 of 1993 (“the ELRA”), to extend the Resolution to all employers and employees as defined.
1.2 The Procedure Manual for the Implementation of Resolution 3 was also agreed to by the parties to the ELRC.
1.3 Resolution 3 is dated 31 May 1996, it came into effect on 31 May 1996, and it was declared to be valid until 31 March 1999.
1.4 Resolution 3 was therefore in force immediately prior to the commencement of the Labour Relations Act, 66 of 1995 (“the new LRA”). The new LRA commenced on 11 November 1996.
1.5 In terms of item 12(2) the Resolution therefore remains in force :
Either for a period of 18 months after the commencement of the new LRA (the cut off date would be 11 May 1998),
or until the expiry of the agreement, (31 March 1999 as aforestated),
whichever is the shorter, and as if the provisions of the ELRA had not been repealed.
The agreement therefore remained in force for the shorter period i.e. until 11 May 1998, as if the provisions of the ELRA had not been repealed.
2 The dispute with respect arose when the applicants’ applications for VSP’s were turned down (cf Edgar Stores Ltd v SACCAWU & Another [1998] 5 BLLR 447 (LAC)). This occurred after December 1996. (Record : volume 2 p21 l 10 – p22 l 2).
3 It is respectfully submitted that item 12(2) only has bearing on the issues in this case insofar as it provides that the agreement, Resolution 3, remained in force until 11 May 1998, as if the provisions of the ELRA had not been repealed.
4 Part C of Schedule 7 (items 5 to 13) deals with “Provisions Concerning Existing Trade Unions, Employers’ Organisation, Industrial Councils and Conciliation Boards”. It does not specifically deal with the Courts or the forum in which disputes should be dealt with.
5 Item 16(8) of Part D of Schedule 7, with respect, supports the respondents’
argument that the Industrial Court is not the correct forum to approach after the commencement of the Labour Relations Act.
6 Ad Part E of Schedule 7 (items 21 to 22 A)
6.1 This Part is specifically directed towards and deals specifically with
“Disputes And Courts”. It is respectfully submitted that the general
provisions of the Schedule must yield to the special provisions particularly dealing with Courts in Part E.
Cf Duze v ECAB & Another 1981 (1) SA 827 (A) at 843 A – B.
6.2 Item 21(1)
The dispute in this case did not arise “before the commencement” of the new LRA, which commencement date was 11 November 1996. It is respectfully submitted that the logical inference therefore is that disputes that arose after the commencement of the new LRA must be dealt with in terms of the new legislation (i.e. as if these laws had been repealed). (Cf Coin Security Group (Pty) Ltd v Minister of Labour and Others [1999]
JOL 5681 (T), at p4. A copy thereof is annexed hereto, marked “BJP1”.)
6.3 Item 21(2) relates to a “strike” or “lock-out” that commences after the new LRA, even if the dispute arose before the commencement of the LRA.
This, we respectfully submit, also supports the respondents’ submissions
viz. that as the present application commenced, and the dispute arose, after the new LRA commenced, it must not be dealt with in terms of the repealed legislation.
6.4 This is in keeping with a purposive approach, it is respectfully submitted, in that dispute resolution under the old LRA was deemed to be ineffective, etc. (Cf the Explanatory Memorandum which accompanied the draft Labour Relations Bill, which Memorandum is reported at (1995) 16 ILJ 278 – 336. See, in particular, pp325 and 326.)
6.5 To expect of the applicants, in the year 2000/1, to go back in time and commence proceedings in terms of the old LRA, appears to be illogical, with respect.
6.6 Reliance is also placed on presumptions in our law, viz. the presumption that statute law promotes the public interest (LAWSA 1st Reissue 25 Part 1
(2001) para 324) and the presumption that a statute applies prospectively, the crux of the matter not being the prospectivity or retrospectivity of legislation as such, but the fair treatment befalling those subject to legislation should the legislation be held to apply in either manner (LAWSA supra para 329).
6.7 This does not mean to say that the present dispute should be entertained by the High Court. The High Court is, with respect, not labour “friendly” and is not a Court of equity and fairness. Reference is further made to the respondents’ main heads.
7 Furthermore, item 22(1), we respectfully submit, also supports the respondents’
stance as set out above. As pointed out in paragraph 2 above, it is submitted with respect that the dispute in the present instance arose after the commencement of the new LRA.
(Cf. also Record volume 2 p21 l 10 – p22 l 2, and annexure “C1” hereto)
It is not argued otherwise by the applicants.
8 8.1 The only case, to our knowledge, dealing specifically with Item 12 (2), is Adonis v Western Cape Education Department [1998] 6 BLLR 564 (LC).
Adonis with respect fully supports the argument advanced on behalf of the respondents.
8.2 In Adonis it was held that disputes that arose after 11 November 1996, were to be resolved under the new LRA. It was further held that the dispute resolution procedures found in the old Acts could not take precedence over the dispute resolution procedures of the new LRA, even if the institutions created by the old Acts were temporarily preserved. Since the applicant’s nomination for the post concerned had taken place in January 1997, the dispute concerning it had arisen after the promulgation of the new LRA. It accordingly had to be resolved through conciliation by the ELRC and then arbitration by the CCMA.
8.3 At p570 I-J of the report, Mlambo J specifically held that any contrary interpretation conflicts with the whole meaning and purpose of the new LRA. It is respectfully submitted that the finding and approach in Adonis is correct.
8.4 At p570 G - I Mlambo J further held that within the scheme of things, provisions of repealed legislation which were preserved by the new LRA were incapable of empowering institutions created by the repealed legislation to resolve disputes that arise beyond the period of operation of the repealed legislation. If this was so it would defeat the whole meaning and purpose of the new LRA. The purpose of the new LRA in preserving certain provisions of repealed legislation could only be one and that was to resolve disputes remaining unresolved at the time of repeal of that legislation. This was so because the new LRA did not empower the institutions it had created to resolve the so-called old disputes. This was
the only interpretation one could give to item 21(1) and 22(1) and (2) in Schedule 7.
8.5 Adonis has not, as far as we are aware, been overruled.
9 9.1 Further support for the aforegoing argument is to be found in Reactor Clothing (Pty) Ltd v Robertson and Others [1998] 3 BLLR 315 (LC). This is a judgment of Zondo J (as he then was) and deals specifically with collective agreements.
9.2 The Court raised mero motu the issue of whether it had jurisdiction to entertain the dispute, as it involved the interpretation and application of a collective agreement. The respondent contended that “since the dispute was concluded” before 11 November 1996, the dispute should be resolved as if the old LRA was still in force, in terms of the provisions of items 12 and 13 of Schedule 7 to the new LRA.
9.3 The learned Judge held, at 321 F-G, that it was clear “that the Legislature made a specific provision with regard to agreements concluded, and in force, prior to the coming into operation of the Act (new LRA) and that provision, namely Item 13(2) of Schedule 7, seeks to ensure that such agreements would be dealt with on the same basis as agreements concluded after the coming into operation of the Act (new LRA) where such agreements fall within the definition of a collective agreement in terms of the Act (new LRA). That being the case, it has to go without saying that once such agreements are deemed to be collective agreements, as they must be, all the other provisions of the Act (new LRA) which relate to collective agreements in general will apply to them as well.”
9.4 In Reactor the collective agreement was concluded and in force prior to the commencement of the new LRA, and it was also promulgated by the Minister in terms of the old LRA.
10 10.1 Reference is also respectfully made to the judgment of the Labour Appeal Court in S A Motor Industry Employers’ Association & Another v National Union of Metal Workers of SA & Others (1997) 18 ILJ 1301 (LAC). (This judgment was referred to in para 69 of the respondents’ main heads).
Collective agreements had been published by the Minister of Labour in terms of the old LRA. The Labour Appeal Court referred to section 24 of the new LRA, and stated (at 1304 I – J), that the scheme of section 24 was to compel the parties to a collective agreement to resolve a dispute about the interpretation or application of the collective agreement by conciliation, and if that fails, by arbitration, either in terms of an agreed procedure or, in the absence of an agreed procedure, by the CCMA.
10.2 The point whether the old LRA or the new LRA applied, was, however, not considered.
11 Ad Coin Security Group (Pty) Ltd v Minister of Labour & Others, now reported in 2001 (4) SA 285 SCA
11.1 It is respectfully submitted that the findings in this case (“Coin”) are not contrary to the submissions made above. It in any event appears that the SCA did not consider, nor was the SCA referred to, cases such as Adonis and Reactor (See pp285 and 286 of the report).
11.2 Coin relies on and refers to Bargaining Council for the Clothing Industry (Natal) v Confederation of Employers of Southern Africa & Others (1999) 20 ILJ 1695 (LAC).
The Bargaining Council case is, with respect, distinguishable and deals with industrial council agreements and not with collective agreements. (In fact in terms of para 13 of that judgment item 12 is only relevant to industrial council agreements). In any event with regard to the legal mechanisms (para 20) the Bargaining Council case deals only with
industrial council agreements. Bargaining Council is with respect therefore not authority contrary to the submissions made above.
12 With respect, neither is Coin. Coin specifically deals only with demarcation disputes and industrial council agreements as opposed to collective agreements (and makes a clear distinction between the two), and the fact that the Labour Court has no jurisdiction to decide a demarcation dispute (Coin at 292 A - B).
Coin is therefore, with respect, distinguishable.
13 Also and very importantly, both Coin and Bargaining Council deal with item 12(1), and not at all with item 12(2), which is the applicable item in the present matter. Further, and in any event, on the Coin and Bargaining Council interpretation, demarcation disputes are not to be entertained by the High Court, be it under the old LRA or the new LRA. A special procedure had been prescribed (Coin at 288 F – G, 289 I – J and 291 C – D), which does not include the High Court.
14 In National Bargaining Council for the Road Freight Industry & Others v Attorney-General Witwatersrand Local Division Johannesburg & Others [1998]
JOL 3585 (LC) (a copy thereof is annexed hereto marked “BJP2”), it was further held, with specific reference to Adonis, that item 12(2) is materially different to item 12(1) (para 26). It further appears that the decision in Adonis was, by implication, endorsed (paras 24 – 26).
15 In Coin Security (annexure “BJP1”) it was also held that demarcation disputes, under the new LRA, had to be entertained by Labour Court institutions. In terms of the old LRA, it had to be entertained by the Industrial Court. The High Court therefore does not have jurisdiction, either under the old LRA or the new LRA.
16 16.1 In Bargaining Council for the Clothing Industry (Natal) v Confederation of Employers of Southern Africa and Others [1998] 9 BLLR 928 (LC) a
distinction was also drawn between an industrial agreement and a collective agreement (at 932 G - H).
16.2 Landman J also referred to Adonis, and quite rightly, it is respectfully submitted, remarked that Adonis dealt with the educational sector and item 12(2). Landman J further remarked that Adonis was distinguishable from the facts of that matter as it did not deal with an industrial council agreement and its enforceability (at 933 G - I).
17 Reference is furthermore made to item 13(2) of Schedule 7 which provides that
“Any agreement that was in force immediately before the commencement of this Act, is deemed to be a collective agreement in terms of this Act.”
18 18.1 Furthermore, item 16(4) of Schedule 7 reads as follows :
“The constitution agreed on between the parties to the Education Labour Relations Council is deemed to be in compliance with this Act : …”
It is therefore submitted, with respect, that the ELRC Constitution should be enforced in terms of the LRA.
18.2 It is significant that the ELRC Constitution provides for dispute resolution only by the Labour Court institutions, and not by the High Court.
19 It is respectfully submitted that Resolution 3 of 1996 is without doubt a collective agreement. Reference is made to section 213 of the new LRA. Reference is, with respect, also made to section 24 of the new LRA which section gives directions as to how parties should resolve disputes relating to the interpretation or the application of collective agreements. This section clearly provides for the resolution of disputes concerning collective agreements by means of conciliation and/or arbitration, and further provides that these disputes may be referred to the CCMA. (See Communication Workers’ Union v Telkom SA 1998 (19) ILJ 389 (CCMA)).
20 20.1 If, however, the above Honourable Court is of the view that Coin is not distinguishable, and that it applies to the present matter, then it is respectfully contended that, in terms of Coin, the applicant should have approached the Industrial Court and ancillary procedures. Coin is clearly not support for the contention that the High Court should have jurisdiction.
20.2 Dispute resolution by means of the Industrial Court and ancillary procedures also appears to fit in with the scheme of the ELRA, in contradistinction to dispute resolution by means of the High Court.
20.3 It is clear, it is respectfully submitted, that in the event of the ELRA applying, the Industrial Court will have jurisdiction to entertain the present dispute.
Cf Western Cape Education Department & Another v George (1996) 17 ILJ 547 (LAC);
Association of Professional Teachers & Another v Minister of Education
& Others [1995] 9 BLLR 29 (IC);
Sections 4, 5, 12, 16, 17, 18 of the ELRA, as well as the definition of
“unfair labour practice” in section 1; and
Section 17 of the old LRA, and the definition of “unfair labour practice” in section 1.
(Re whether the dispute is a dispute of right or interest, see also para 1 of Annexure “A” of Resolution 7 to the Constitution of the Education Labour Relations Council : Record Volume 4 pp223 and 224).
21 Ad the applicants’ further submissions
The applicants’ further submissions are now dealt with where deemed necessary.
Insofar as specific submissions of the applicants are not addressed, regard must please be had to the submissions hereinbefore and the respondents’ main heads and additional note.
22 Ad para 2.1 thereof
It is noted that it is not contended on behalf of the applicants that the matter should be dealt with in terms of the ELRA.
23 Ad paras 2.2 – 2.8 thereof
23.1 It is noted that the applicants submit that the Industrial Court had no constitutional jurisdiction. No authority is referred to for this submission.
23.2 It is respectfully submitted that the Industrial Court does have jurisdiction to address the applicants’ constitutional complaints.
Cf. Western Cape Education Department & Another v George supra;
Association of Professional Teachers & Another v Minister of Education
& Others supra;
Sections 4, 5, 12, 16, 17, 18 of the ELRA, as well as the definition of
“unfair labour practice” in section 1;
Section 17 of the old LRA, as well as the definition of “unfair labour practice” in section 1; and
Section 39(2) of the Constitution, paras 64 – 67 of the respondents’ main heads and para 8 of the respondents’ additional note.
23.3 In George, a married woman teacher employed by the Western Cape Education Department applied to the Industrial Court for a determination in terms of section 18 of the ELRA, that the Department’s refusal to pay her a housing allowance constituted an unfair labour practice. The basis of her claim was that she was unfairly discriminated against. The claim was upheld by the Industrial Court, and confirmed on appeal.
23.4 In Association of Professional Teachers, a married woman employed as a principal of a school brought an application to the Industrial Court (consisting of Professors Landman and Basson) for a determination in terms of section 18 of the ELRA, in that her application for a subsidy on a
housing loan from the Transvaal Education Department had been refused.
The Industrial Court entertained her claim which was based, in the main, thereon that she had been unfairly discriminated against. The Industrial Court held that although the interim Constitution did not confer “any constitutional jurisdiction” upon the Industrial Court, the Industrial Court, in exercising its jurisdiction, was obliged to strive to uphold the democratic values enshrined in the Constitution. The Industrial Court concluded that when interpreting any unfair labour practice definition, the Industrial Court should do so with due regard to the Bill of Rights. The Industrial Court further dealt in depth with section 8 of the Interim Constitution (the equality clause).
23.5 Further, reverting to paras 64 – 67 of the respondents’ main heads, it is respectfully submitted that there is no reason in principle to distinguish between the constitutional jurisdiction of the CCMA and the Industrial Court.
23.6 Regarding the applicants’ “no review jurisdiction” argument, reference is made to Coetzee and Association of Professional Teachers referred to hereinbefore. Reference is also made to para 68 of the applicants’ main heads and para 9 of the applicants’ additional note.
24 Ad paras 2.9 to 2.12 thereof
24.1 Resolution 3 is not an industrial agreement or a “piece of subordinate, domestic legislation”, it is respectfully submitted. There is a clear distinction between collective agreements and industrial agreements.
Reference is further made to paras 11.2, 12 and 16 hereinbefore.
24.2 Resolution 3 was never perceived by any of the parties, nor the Court a quo, to be an industrial agreement. It was at all times common cause that Resolution 3 is a collective agreement.
24.3 The criticism against a potential “referral to arbitration” also does not hold water. Such referral would be in terms of the provisions of the agreed Constitution of the Education Labour Relations Council.
24.4 Also, arbitrations have passed constitutional muster (see Patcor Quarries CC v Issroff & Others 1998 (4) SA 1069 (SE)).
25 Ad paras 2.13 to 2.15 thereof
25.1 It is clear that if section 12(4) of the ELRA is read in the context of the whole ELRA, the Industrial Court will have jurisdiction to entertain the dispute as to the application of a collective agreement. Reference is made in this regard to the “unfair labour practice” definition in section 1, as well as sections 4, 5, 12, 16, 17 and 18 of the ELRA. The definition of an unfair labour practice in the ELRA, is extremely wide (See Association of Professional Teachers supra at 56 E).
25.2 Reference is also made to the “unfair labour practice” definition in section 1 of the old LRA, as well as section 17 of the old LRA. It is trite, it is respectfully submitted, that the Industrial Court has an extensive unfair labour practice jurisdiction (See Labour Relations Law A Comprehensive Guide 3rd Edition Du Toit et al (2000) at pp10 and 11).
25.3 It is further respectfully submitted that where legislation creates specialist Courts to deal with particular matters, there is no reason in principle for closely scrutinising the provisions in question or for zealously guarding against interference with the jurisdiction of the ordinary Courts. (See Paper, Printing, Wood & Allied Workers’ Union v Pienaar NO 1993 (4) SA 621 (AD) at 637 A – C).
26 26.1 In summary, it is respectfully submitted that the present matter is clearly not an easy one. Some of the judgments and provisions referred to are not easily reconcilable.
26.2 However, it is respectfully submitted that by adopting a purposive approach, such difficulties can be overcome. The purpose of the labour legislation is clearly to provide for labour disputes to be dealt with by a specialized Labour Court and its institutions.
26.3 To hold otherwise will defeat the whole process and materially frustrate the accomplishment of the objects of labour legislation, give rise to
“forum shopping” and lead to conflicting irresoluble decisions, and create a duality of jurisdictions.
26.4 The Labour Court, unlike the High Court, is a Court of law and equity and fairness. It is clearly more suitable to address labour matters than the High Court.
26.5 To have their dispute entertained by the Labour Court, and its institutions, will also not impact on the constitutional rights of the applicants.
27 It is therefore respectfully requested that the applicants’ application for leave to appeal be dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.
PJ DE BRUYN SC
B J PIENAAR
T NORMAN
Counsel for Respondents
