Minister of Public Works And Administration and Another v Public Servants Association obo Makwela and Others (JR 899/13) [2016] ZALCJHB 365 (27 September 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

CASE NO : JR 899/13

DATE: 27 SEPTEMBER 2016

NOT REPORTABLE

OF INTEREST TO OTHER JUDGES

In the matter between:

MINISTER OF PUBLIC WORKS AND ADMINISTRATION..................................First Applicant

MEC FOR PUBLIC WORKS, ROADS AND TRANSPORT,

MPUMALANGA..........................................................................................................Second Applicant

And

PUBLIC SERVANTS ASSOCIATION obo J MAKWELA......................................First Respondent

D MATHALA N.O....................................................................................................Second Respondent

GPSSBC.......................................................................................................................Third Respondent

Heard:25 August 2016

Delivered:27 September 2016

Summary:Review of rescission award. Non-joinder of Minister in OSD dispute. Representation to enter into settlement agreement challenged.

Application for review dismissed with costs.

STEENKAMP J

Introduction

[1] The applicants seek to review a rescission ruling made by the second respondent, D Mathala N.O., a panellist of the third respondent, the General Public Service Sectoral Bargaining Council (GPSSBC). The applicants are the Minister of Public Service and Administration; and the MEC for Public Works, Roads and Transport for Mpumalanga province. The original arbitration award – that commissioner Mathala refused to rescind – was issued by commissioner Martin. It concerns the application and implementation of an Occupation Specific Dispensation (OSD). The Minister argues that he was a necessary party to the arbitration, should have been joined, and that the Martin award should have been rescinded because it was erroneously made in his absence.

Background facts

[2] The first respondent, Mr Makwela (who is represented by his trade union, the PSA), is a deputy director in the Roads Directorate of the Department of Public Works, Roads and Transport in Mpumalanga.[1] His highest academic qualification is a National Diploma in Industrial Engineering from the Tshwane University of Technology.

[3] The PSA and two other trade unions entered into a collective agreement with the State as employer in August 2009. It was implemented under the auspices of the GPSSBC as Resolution 2 of 2009. It took the form of an “Occupation Specific Dispensation for Engineers” (OSD). Its aim was to provide clear guidelines for the salary structure and pay progression for engineers employed by the State. It also provided for engineers to be “translated” to appropriate posts and salary grades. It contains the following once-off provision:

“For employees on the Engineers work streams who are permanently appointed and have been performing the duties of the post satisfactorily as at 30 June 2009, but are not registered with the relevant Council upon the implementation of the OSD will as a once-off provision translate to the OSD in terms of phases 1 and 2 translation measures.”

[4] Makwela was not registered. He was “translated” to the middle of three salary scales, referred to as the “interim scale”. The top scale was referred to as the “full translation to OSD” scale”. He was unhappy and the PSA referred an unfair labour practice dispute to the GPSSBC on his behalf in terms of s 186 of the LRA[2]. The PSA cited the Department[3] as the respondent. The parties reached a settlement agreement at a pre-arbitration meeting. It was made an arbitration award by commissioner Martin by agreement between the parties. It provided for the Department to translate Makwela “to the appropriate post and salary grade” in accordance with the OSD from 1 July 2012.

[5] The Minister was unhappy with the settlement agreement and arbitration award to which she was not a party. She applied to be joined to the dispute and for the Martin award to be rescinded. The rescission application served before commissioner Mathala. He considered whether the award was “erroneously made in the absence” of the Minister as envisaged by s 144 of the LRA. He found that the parties at the arbitration reached a settlement agreement; that it was not for the arbitrator to question it; and that it was not open for rescission.

[6] The Minister now seeks to have the rescission ruling set aside. She also seeks to be joined to the original arbitration.

Review grounds

[7] The applicants argue that the Minister should have been joined as a respondent to the original unfair labour practice dispute; and, absent that, the award was erroneously made in her absence.

[8] The main argument in support of this contention made by Mr Skosana is that the Minister “made the determination” in the OSD in terms of s 3(5)(a) of the Public Service Act and that she was therefore a necessary party to the arbitration proceedings.

Evaluation / Analysis

[9] In order to evaluate the applicants’ argument, the OSD must be considered against the legislative context.

The legislative context

[10] The Public Service Act includes, per definition, the regulations, determinations, deemed determinations contemplated in s 5(6) and

directives made in terms of the Act.[4]

[11] A “deemed determination” is that contemplated in s 5(6):

“(a) Any provision of a collective agreement contemplated in subsection (4), concluded on or after the commencement of the Public Service Amendment Act, 2007, shall, in respect of conditions of service of employees appointed in terms of this Act, be deemed to be a determination made by the Minister in terms of section 3(5).

(b) The Minister may, for the proper implementation of the collective agreement, elucidate or supplement such determination by means of a directive, provided that the directive is not in conflict with or does not derogate from the terms of the agreement.”

[12] A “collective agreement contemplated in subsection (4)”, in turn, is any collective agreement concluded by the GPSSBC. It is common cause that the OSD is such a collective agreement. The OSD is, therefore, deemed to be a determination made by the Minister.

[13] Once the Minister has made a determination in terms of s 3(5), she may offer advice or assistance in terms of s 3(6):

“If so requested by the president or an executive authority, the Minister may advise, or assist in such manner or in such conditions as the Minister may determine, the president of the relevant executive authority as to any matter relating to –

(i) the public service;

(ii) any staffing arrangements or employment practice regarding any organ of state; or

(iii) the remuneration or other conditions of appointment of the office bearers of any board, institution or body.”

[14] The “executive authority” is the MEC. And in terms of s 3(7) the MEC has the powers and duties necessary for “the internal organisation of the Department concerned, including its organisational structure and establishment, the transfer of functions within the department, human resources planning, the creation and abolition of posts and provision for the employment of persons additional to the fixed establishment; and the recruitment, appointment, performance management, transfer, dismissal and other career incidents of employees of that department”.

Should the arbitrator have joined the Minister mero motu?

[15] Read in context, it appears that the OSD is deemed to be a determination made by the Minister. But once she is deemed to have made a termination, its implementation is left to the MEC.

[16] The unfair labour practice dispute that the PSA referred to the GPSSBC questioned the implementation of the OSD in the case of Mr Makwela. It did not attack the OSD itself, or the fact that it is deemed to be a determination made by the Minister. In those circumstances, I do not believe that the Minister was a necessary party to the dispute. The arbitrator, Dr Martin, did not exceed his powers or commit any other reviewable irregularity when he made the settlement agreement an arbitration award at the request of the parties, being the PSA and the MEC.

[17] It cannot be envisioned that the Minister should be joined to every dispute concerning a “deemed determination” in the form of a collective agreement of a public service bargaining council such as an OSD. For example, in the case that Mr Mashego cited, Western Cape Department of Health v MEC Van Wyk and others[5], the LAC took no issue with only the provincial department (rather than the Minister) having been cited as a respondent in a similar

dispute involving the implementation of an OSD – in that case, for nurses.

The rescission ruling

[18] Once it is concluded that the Minister was not a necessary party to the Martin award, the rescission ruling by commissioner Mathala is also not reviewable.

[19] Quite simply, the arbitration award – in terms of which the settlement agreement was made an award with the consent of both parties – was not “erroneously sought or erroneously made in the absence of any party affected by that award”

as contemplated by s 144(a) of the LRA.

[20] The Department was properly cited. It was represented by its Manager: Collective Bargaining, Mr Yuza David Maswanganye. He is tasked with managing dispute resolution processes and entering into collective agreements. His authority to enter into the agreement with the PSA and to consent to it being made an arbitration award was not questioned; nor could it be.

Conclusion

[21] The rescission ruling is not open to review. Both parties asked for costs to follow the result. I see no reason to differ.

Order

The application is dismissed with costs.

Anton Steenkamp

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANTS: D T Skosana SC (with him N Mthembu)

Instructed by the State Attorney.

FIRST RESPONDENT: Dima Mashego (attorney).

[1][1] The Department is represented by its MEC, cited as the second respondent in this review application.

[2] Labour Relations Act 66 of 1995.

[3] i.e. the second respondent, represented in these proceedings by the MEC.

[4] Section 1.

[5] [2014] 11 BLLR 1122 (LAC); (2014) 35 ILJ 3078 (LAC).