City of Tshwane Metropolitan Municipality v South African Municipal Workers Union obo Members and Others (JR1619/19) [2021] ZALCJHB 307 (17 September 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1619/19

In the matter between:

CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant

and

SOUTH AFRICAN MUNICIPAL WORKERS UNION

obo MEMBERS First

Respondent

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL Second

Respondent

MMAMOHLALA GLORIA RABYANYANA N.O Third Respondent

Heard: 28 March 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour

Court’s website. The date and time for hand-down is deemed to be 17 September 2021 at 20:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] The applicant (Municipality) seeks an order reviewing and setting aside the arbitration award issued by the Third Respondent (Arbitrator) dated 27 March 2019 and issued under the auspices of the Second Respondent, South African Local Government Bargaining Council (SALGBC). The First Respondent (SAMWU), acting on behalf of its members has opposed the review application.

[2] The Municipality further seeks condonation for the late filing of the review application. The award having been issued on 27 March 2019, the review application was only launched on 5 July 2019, some eight weeks out of time.

[3] SAMWU and IMATU are representative unions at the Municipality, and had on 14 November 2017, concluded a collective agreement styled ‘Absorption Agreement’[1] (The Agreement), which essentially makes provisions for a framework in which the parties agreed to the permanent appointment of contract employees who were in the employ of the Municipality at the time. The Agreement was preceded by a Staffing Policy[2] (The Policy) which was also a collective agreement concluded between the parties as far back as October 2008.

[4] In accordance with clause 6.2 of the Agreement, SAMWU compiled a list of names of its members who were contract employees for absorption as permanent employees. The Municipality had considered the list and excluded some of the contract employees on the basis that they failed a vetting process in accordance with section 7.1 of the Policy, and could not thus not be absorbed. This led to a disagreement between SAMWU and the Municipality in regards to how the absorption process as agreed to, should be interpreted and implemented.

[5] SAMWU subsequently referred a dispute to the SALGBC and when conciliation failed, the matter came before the Arbitrator for determination. The Arbitrator characterised the dispute to be determined as being whether the employees were entitled to be absorbed by the Municipality in terms of Section 7.1 of the Policy.

[6] At the commencement of the arbitration proceedings, the parties had agreed that the matter was to be disposed of on the basis of the documentary bundle handed in and written submissions to be filed on certain timelines. Only SAMWU submitted its written submissions, and the Municipality attributed its omission to ‘some oversight’ without explaining more.

[7] The relevant provisions of both the Agreement and the Policy that are the subject of the dispute are;

Clause 4.5 of the Absorption Agreement which provides;

‘The permanent appointment of the contract of employees shall be subject to the provisions of paragraph 7.1 and 8.6 of the Staffing Policy.

Section 7.1 of the Staffing Policy provides that;

‘SECURITY SCREENING OR VETTING

The security screening of applicants must be carried out before appointment at the discretion of Executive Director: Strategic Human Resources or his/her nominee and at the request of the relevant Departmental Head or his/her nominee or in accordance with legislation. Previous detention, arrest conviction or dismissal may not constitute a reason for the immediate refusal of an application, except when the reason for the conviction or the dismissal makes the applicant unsuitable for the position in terms of its inherent job requirements and applicable legislation such as the SA Police Service Act, 1995 (Act 68 of 1995), and the Regulations for Municipal Police Services’.

Section 8.6 provides that;

‘Appointment of candidates with criminal records

8.6.1 The appointment of a person with a criminal record may be authorised by the City Manager, subject to full disclosure and applicable legislation.

[8] SAMWU’s contention was that the Municipality was incorrect in its interpretation of the provisions of the Agreement to the extent that it had insisted that it should be read with section 7.1 of the Policy when absorbing employees. The issue surrounded the Municipality’s insistence that appointments ought to be preceded by subjecting the employees to vetting in terms of the Policy, whilst SAMWU held the view that the Policy did not apply to the already employed contract employees who sought permanent absorption. SAMWU further held the view that the employees were therefore not required to undergo vetting as they were not ‘applicants’ for the posts in question, but were merely to be absorbed. SAMWU further pointed out that unlike with other permanent posts, the employees’ posts were not advertised, and thus the criteria relating to inherent

requirement of the job, or the legislation pertaining to SAPS or Municipal Traffic Officers was not applicable to them, thus making

section 7.1 of the Policy inapplicable.

[9] The Arbitrator faced only with SAMWU’s submissions concluded that since the employees were in the employ of the Municipality for three or more years at the time that the Agreement was entered into, they were not ‘candidates’ and ought not to have been subjected to the selection process in terms of the Policy. The Policy according to the Arbitrator, and to the extent that it made reference to ‘security screening of applicants’, was only applicable in relation to ‘jobseekers’ or ‘candidates’. The Arbitrator found that the Municipality therefore had misinterpreted the Agreement in finding that Section 7.1 of the Policy was applicable when absorbing the employees, and this had resulted in the unfair exclusion of the employees from permanent absorption. The Arbitrator made the following order;

1. “Clause 7.1 of the Staffing Policy is not applicable to the Applicants

2. The respondent must absorb the applicants on the permanent positions as agreed between SAMWU and the respondent’

[10] Upon receipt of the award, the Municipality had on 17 April 2019 filed an application for a variation of that award, contending that it contained an ambiguity or obvious error to the extent that the Arbitrator had ordered that the employees should be absorbed in the permanent positions as agreed between the parties. The Municipality held the view that the award could not be effected without following the prescripts of the Agreement, which necessarily invoked the Provisions of the Policy.

[11] SAMWU did not oppose the application for variation. The Arbitrator had on 14 June 2019 disposed of the application on the papers in a ruling in which she further stated that the Municipality had waived its right to be heard when it failed to deliver its heads of argument. Her view was that the application was an attempt by the Municipality to revive its case. In these proceedings, only the arbitration award is the subject of review.

[12] To the extent that the Municipality had filed its variation application, which I accept was ill-conceived, and further to the extent that the review application was ultimately about eight weeks out of time, I am satisfied that upon consideration of the extent of the delay, the explanation in that regard, the parties’ prospects of success and any prejudice to the parties, good cause has been shown. Given the issues to be determined in the review application, the interests of justice dictate that its late filing be condoned.

[13] The issues that the Arbitrator was required to determine as per the parties agreement on 25 February 2019, were whether the exclusion of SAMWU members was done upon a proper application and interpretation of section 7.1 of the Policy, and whether the Municipality had interpreted and applied the provisions of that Policy and the Agreement correctly.

[14] The dispute referred by SAMWU clearly falls within the ambit of section 24 of the Labour Relations Act[3] (LRA). It has since been held in Tshambi[4] that a dispute about the interpretation of a collective agreement requires at a minimum, a difference of opinion about what a provision

of the agreement means, and whether that provision can be invoked. It was also held that the phrase “interpretation or application”

are not disjunctive terms, and ought to be read as being related; i.e., the disputes about what the agreement means and what it is applicable to[5].

[15] In this case, there was clearly a difference of opinion about what section 7.1 of the Policy means, and whether it could be invoked in implementing the general framework and purpose of the Agreement. SAMWU was aggrieved by the exclusion of some of its members from absorption as a result of a negative vetting process undertaken under the provisions of section 7.1 of the Policy.

[16] In these proceedings, the Municipality’s contentions were that the absorption of the employees was to be in accordance with what was agreed to between the parties. In this regard, clause 4.5 of the Agreement made sections 7.1 and 8.6 of the Policy applicable by the use of the words; ‘shall be subject to the provisions of paragraph 7.1 and 8.6 of the Staffing Policy’, and that the Agreement cannot be read in isolation of that clause as agreed to between the parties. To this end, it was submitted that it was therefore irrelevant that clause 7.1 of the Policy referred to or applied to ‘candidates’.

[17] To the extent that the Arbitrator had found that the employees were entitled to be absorbed without going through the screening process, it was submitted that the award was reviewable on the grounds that she had exceeded her powers; failed to properly analysed clause 4.5 of the Agreement, clauses 7.1 and 8.6 of the Policy; decided on her own accord that any exclusion criteria still made the employees suitable for any position in the Municipality; and effectively removed clause 4.5 from the Agreement, and thus imposed an agreement on the parties contrary to their intentions.

[18] When interpreting the provisions of a collective agreement, it is worth repeating the proper approach as stated in Commercial Workers Union of SA v Tao Ying Metal Industries and Others[6] as follows;

‘The proper approach to the construction of a legal instrument requires consideration of the document taken as a whole. Effect must be given to every clause in the instrument and, if two clauses appear to be contradictory, the proper approach is to reconcile them so as to do justice to the intention of the framers of the document. It is not necessary to resort to extrinsic evidence if the meaning of the document can be gathered from the contents of the document.'

[19] In addition to the above, as further pointed out in other authorities[7];

a) When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement;

b) The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.

c) A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement.

d) The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made;

[20] Applying the above principles to the facts of this case, and further taking into account that the correct test in such review proceedings is whether the award itself meets the requirement of reasonableness, in the sense that it is supported by reasons[8], the starting point is whether as required of her, the Arbitrator had regard of the Agreement as a whole, and thus gave effect to every of its clauses.

[21] Clause 4 of the Agreement provides ‘Guiding Principles’ and relevant for our purpose is clause 4.5 of that agreement, which specifically provides that; ‘The permanent appointment of the contract employees shall be subject to the provisions of paragraphs 7.1 and 8.6 of the Staffing Policy’

[22] On a plain, ordinary, popular and grammatical reading of this clause, I find it strange that SAMWU would seriously argue that the provisions of paragraph 7.1 and 8.6 of that Policy are inapplicable to the contract employees. This is so in that clause 4.5 of the Agreement specifically provides for the ‘permanent appointment of contract employees’, which in this case, is in reference to the very same employees who are required to be employed on a permanent basis.

[23] SAMWU appears to be taking issue with the fact that section 7.1 of the Policy makes reference to ‘job applicants’, which it contends is inapplicable to its members as they were not ‘job applicants’ having been employed by the Municipality over two years. Unfortunately, SAMWU, and as well as the Arbitrator, tended to overlook what the intentions of the parties were when the Agreement was entered into. Had it not been the intention of the parties to include the provisions of section 7.1 and 8.6 of the Policy, that would have been clear by the exclusion of clause 4.5 of that Agreement in the ‘Guiding Principles’.

[24] It is therefore irrelevant that the Agreement referred to contract employees whilst the Policy made reference to ‘applicants’ for the posts in question. Equally irrelevant was the fact that those posts were not advertised. Once clause 4.5 of the Agreement made reference to subjecting the contract employees to section 7.1 and 8.6 of the Policy, the parties could not have envisaged or intended exclusion from those provisions unless this was expressly stated. There was thus no basis for the Arbitrator to conclude that since the Policy made reference to ‘security screening of applicants’, it was only applicable in relation to ‘jobseekers’ or ‘candidates’. The Agreement did not make that distinction, and the Arbitrator’s interpretation and application of the Agreement cannot be said to be fair to the parties.

[25] Even if there was any ambiguity, which I did not understand to be SAMWU’s case, the proper approach would have been to reconcile the provisions of clause 4.5 of the Agreement with those of sections 7.1 and 8.6 of the Policy, so as to do justice to the intention of the parties to that Agreement. The intention as gleaned from the provisions of clause 4.5 of the Agreement was to subject all permanent appointments of contract employees to the provisions of the Policy. The Arbitrator instead of reconciling the two provisions made a contract for the parties by finding that section 7.1 was inapplicable, when the provisions of section 4.5 of the Agreement stated otherwise. Clearly this was a typical case of an Arbitrator having exceeded her powers and committing an irregularity, even on SAMWU own case. The Municipality is therefore correct that the interpretation as accorded by the Arbitrator is not one as agreed to between the parties to the Agreement.

[26] Equally evident in this case is that both SAMWU and the Arbitrator conflated the issue of fairness in the implementation of the Agreement, and that of the interpretation of its provisions. To the extent that the Municipality had implemented the Agreement, the issue was that of the process followed in implementing it. This was so in that SAMWU appears to be more aggrieved with the exclusion of its members from absorption not because of how the provisions of the Agreement were interpreted but the fairness in implementing them. Thus, for example, if SAMWU was aggrieved by the exclusion of an employee on account of a negative vetting process in that it revealed that the employee had a criminal record, the issue arising therefrom is separate from actual interpretation.

[27] The above in my view raised the question whether the process was fair, to the extent that the exceptions under section sections 7.1 and 8.6.1 were to be considered by the City Manager (including the Executive Director: Strategic Human Resources) in the exercise of their discretion, and whether that discretion was exercised fairly. To the extent that it was argued on behalf of SAMWU that there was no full disclosure by the Municipality as to how the discretion was exercised (and by implication, why a negative vetting), this in my view raised a different cause of action, unrelated to the dispute under section 24 of the LRA. To that end, it is correct as argued on behalf of the Municipality, that by excluding the provisions of section 7.1 of the Policy, the Arbitrator effectively eroded the discretion enjoyed by the Municipality. In these circumstances, the award being vitiated by such irregularities rendered it to fall outside the bounds of reasonableness.

[28] A further issue raised on behalf of SAMWU as to the reason the award was not reviewable was that of peremption, it being contended that the Municipality had ‘expressly and unequivocally, unconditionally and unreservedly’ acquiesced in the award when it applied for variation instead of a review.

[29] Even though the issue was not pursued with any vigour in these proceedings, the principles applicable to peremption were re-affirmed

in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others[9]. The question that arises in this case is whether there was any conduct on the Municipality that point indubitably and necessarily to the conclusion that there has been an abandonment of the right to review the Arbitrator’s award, and a resignation to that unfavourable award.

[30] One need only refer to the nature of relief that the Municipality sought in the application for variation before the Arbitrator. That application as correctly pointed out on behalf of SAMWU was ill-conceived, and the Arbitrator had correctly dismissed it as it was akin to a review or an attempt by the Municipality to revive its case.

[31] In that application however, the Municipality sought an order varying various paragraphs and conclusions made by the Arbitrator, and the relief that was granted. There is hardly anything in the variation application that can suggest that the Municipality had abandoned any of its rights to review the award in question, or that it had resigned itself to the that award.

[32] In the light of the conclusions reached in this judgment, no purpose would be served by remitting the matter back to the SALGBC for reconsideration, and I am satisfied that the appropriate order would be to substitute the Arbitrator’s award.

[33] Regarding the issue of costs, there is no basis for any conclusions to be reached the SAMWU was not entitled to defend the award. It is however my view that the application for variation before the Arbitrator was clearly ill-conceived. Even though condonation has been granted for the late filing of the review, SAMWU was compelled to oppose that application, and in circumstances where it should not have been burdened with costs. Accordingly, the requirements of law and fairness dictate that the Municipality should be burdened with the costs of the application for condonation.

[34] Accordingly, the following order is made;

Order:

1. The late filing of the review application is condoned.

2. The arbitration award issued by the Third Respondent under case number PMD041802 dated 27 March 2019 is reviewed, set aside and substituted with an order that;

‘Clauses 7.1 and 8.6.1 of the Staffing Policy dated 08 October 2008, are applicable to the First Respondent in accordance with the implementation of the parties’ Absorption Agreement concluded 14 November 2017’

3. The Applicant is ordered to pay the costs of the Second Respondent, limited to the opposition to the former’s application for condonation.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv.

G. Mashigo, instructed by Rambevha Morobane Attorneys

For the First Respondent: Ms G.C. Phakedi of Phakedi Attorneys

[1] Annexure ‘SS3’ to the index to the Records. ‘Collective Agreement on the permanent appointment of contract employees in the Tshwane Division of the South African Local Government Bargaining Council (SALBC)’

[2] Annexure ‘SS4’ to the index to the Record. ‘Collective Agreement: Staffing Policy of the City of Tshwane Metropolitan

Municipality’

[3] Act 66 of 1995, as amended

[4] Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) at para 17

[5] Tshambi at para 25

[6] (2008) 29 ILJ 2461 (CC) at para 90.

[7] Association of Mineworkers and Construction Union and Others v Chamber of Mines of SA and Others (2017) 38 ILJ 831 (CC) at fn 28; Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at para 18; Western Cape Department of Health v Van Wyk and Other (2014) 35 ILJ 3078 (LAC) at para 22; North East Cape Forests v SAAPAWU and Others [1997] 6 BLLR 711 (LAC); Food and Allied Workers Union v Commission for Conciliation, Mediation and Arbitration and Others (2007) 28 ILJ 382 (LC) at para 35.

[8]Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 42 – 43

[9] (CCT19/16) [2016] ZACC 38; [2017] 1 BLLR 8 (CC); (2017) 38 ILJ 97 (CC); 2017 (1) SA 549 (CC); 2017 (2) BCLR 241 (CC), where it was held; ‘[26] Peremption is a waiver of one’s constitutional right to appeal in a way that leaves no shred of reasonable doubt about the losing party’s self resignation to the unfavourable order that could otherwise be appealed against. Dabner articulates principles that govern peremption very well in these terms: “The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it.” The onus to establish peremption would be discharged only when the conduct or communication relied on does “point indubitably and necessarily to the conclusion” that there has been an abandonment of the right to appeal and a resignation to the unfavourable judgment or order.”(Citations omitted)

[9] (CCT19/16) [2016] ZACC 38; [2017] 1 BLLR 8 (CC); (2017) 38 ILJ 97 (CC); 2017 (1) SA 549 (CC); 2017 (2) BCLR 241 (CC), where it was held;

‘[26] Peremption is a waiver of one’s constitutional right to appeal in a way that leaves no shred of reasonable doubt about the losing party’s self resignation to the unfavourable order that could otherwise be appealed against. Dabner articulates principles that govern peremption very well in these terms:

“The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it.”

The onus to establish peremption would be discharged only when the conduct or communication relied on does “point indubitably and necessarily to the conclusion” that there has been an abandonment of the right to appeal and a resignation to the unfavourable judgment or order.”(Citations omitted)