NEHAWU obo Mabizela V.M. v Minister: Department of Water and Sanitation- Honourable Senzo Mchunu and Others (D441/2021) [2022] ZALCD 24 (22 June 2022)
The Labour Court found that the arbitration award issued by the Second Respondent was neither clear nor executable, as it failed to specify the position to which the applicant's member should be translated. The Court held that it is not empowered to interpret or clarify the collective agreement beyond the award, as...
Source-derived case information.
- Citation
- [2022] ZALCD 24
- Parties
- Applicant: NEHAWU obo Mabizela V.M.; Respondent: Minister: Department of Water and Sanitation - Honourable Senzo Mchunu; Respondent: General Public Service Sectoral Bargaining Council (GPSSBC); Respondent: Commissioner Nozipho Khumalo N.O.
- Court
- Labour Court Durban
- Jurisdiction
- South Africa
- Case Number
- D441/2021
- Procedural Posture
- Review Application / Application to Make Arbitration Award an Order of Court
- Outcome
- Application dismissed; matter remitted for clarification.
- Judges
- B. Purdon
- Legal Topics
- Collective Agreement Interpretation, Arbitration Award Enforcement, Remittal for Clarification
Source-derived case record
Summary, issues, holding and outcome
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Parties
NEHAWU obo Mabizela V.M.
Applicant
Minister: Department of Water and Sanitation - Honourable Senzo Mchunu
Respondent
General Public Service Sectoral Bargaining Council (GPSSBC)
Respondent
Commissioner Nozipho Khumalo N.O.
Respondent
Procedural Posture
Review Application / Application to Make Arbitration Award an Order of Court
Legal Issues
- 1 Whether the arbitration award issued by the Second Respondent is clear and executable as an order of court.
- 2 Whether the Labour Court has jurisdiction to interpret and clarify the collective agreement beyond the award.
- 3 Whether the matter should be remitted to the Second Respondent for clarification of its award.
Ratio Decidendi
The Labour Court found that the arbitration award issued by the Second Respondent was neither clear nor executable, as it failed to specify the position to which the applicant's member should be translated. The Court held that it is not empowered to interpret or clarify the collective agreement beyond the award, as this function falls within the statutory jurisdiction of the Bargaining Council. Accordingly, the application to make the award an order of court was dismissed, and the matter was remitted to the Second Respondent for reconsideration and clarification of its award.
Court Disposition
Application dismissed; matter remitted for clarification.
Orders
- The application is dismissed.
- The matter is remitted to the Second Respondent for reconsideration and clarification of its award.
Full Case Text
Judgment text and source record
42 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
D441/2021
Not Reportable
In the matter between:
NEHAWU obo MABIZELA V.M.
APPLICANT
and
MINISTER: DEPARTMENT OF WATER
AND SANITATION - HONOURABLE SENZO
MCHUNU
FIRST RESPONDENT
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL (GPSSBC)
SECOND RESPONDENT
COMMISSIONER NOZIPHO KHUMALO N.O. THIRD RESPONDENT
HEARD: 26 MAY 2022
DELIVERED: 22 June 2022
JUDGMENT
B. Purdon AJ
Introduction:
[1] This is an application to make an Order of Court an arbitration award issued under the auspices of the Second Respondent by the Third Respondent on the 20th of December 2020.
Background:
[2] The award of the Second Respondent is the following:
“23. The Respondent is ordered to translate the Applicant to a post and salary grade in accordance with the post which the Applicant occupied at the time of translation being the Senior General Foreman.
24. The Respondent must give effect to clause 13.1. of GPSSBC Resolution 4 of 2009 on or before 01/03/2021.
25. I make no order as to costs”.
[3] The dispute was referred to the Second Respondent in terms of Section 24 of the Labour Relations Act in order to interpret and apply a collective agreement, being the GPSSBS Resolution 4 of 2009.
[4] That interpretation (and consequent application) concerned the job status of the Applicant’s member V.M. Mabizela.
[5] The First Respondent opposes the grant of the Order indicating, inter alia, that were the Applicant’s interpretation of the Second Respondent’s award to be implemented, it would constitute effectively a demotion for the Applicant with detrimental financial consequences.
[6] This Court is not in a position to make that determination.
[7] In order to give effect to the award of the Third Respondent, the Court would have to look elsewhere for what “give effect to clause 13.1. of the GPSSBC Resolution of 2009” would entail. This Court would be indulging the very act of interpretation of a Collective Agreement that is the statutory prerogative of the Second Respondent to determine.
[8] The Order is neither clear nor executable.
[9] The award begs the very question which the Third Respondent is obliged to resolve.
[10] The Third Respondent is required, on her interpretation of the provisions of the collective agreement which is the subject matter of the dispute, to clarify in what position the Applicant’s member ought to be placed by virtue of her interpretation of the Resolution.
Order:
The Court therefore deems the following Order appropriate:
[1] The application is dismissed.
[2] The matter is remitted to the Second Respondent for reconsideration and clarification of its award.
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate Tshikani Maluleke instructed by NEHAWU
For the First Respondent: Advocate N. Nako instructed by The State Attorney