[2]
A dispute arose between the appellants and the first respondent concerning the obligations, if any,
of the first respondent to, as it was put by the appellants, afford the individual appellants training necessary for them to acquire
a qualification known as the Standard Training Certificate for Watchkeeping (“the STCW”). The appellants alleged that the first respondent was contractually obliged to afford them an opportunity to undergo the said training
but was refusing to do so. The first respondent disputed the alleged contractual obligation, stated that in any event it had provided
them with training that enabled them to qualify for the job that they had been employed to do and there was no warrant for it to
incur the large costs that would go with the said training. The appellants claimed that the first respondent’s conduct in this
regard constituted an unfair labour practice as defined in item 2(1)(b) of schedule 7 to the Labour Relations Act, 1995 (Act no 66
of 1995) (“the Act”). They sought that the first respondent be compelled to afford them the training they sought. Item 2(1)(b) of schedule 7 provides
that, for purposes of item 2, an unfair labour practice means “any 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 to the provision of benefits of an employee;”
[3]
The appellants referred the dispute to the CCMA for conciliation. Thereafter they requested, in
terms of the provisions of item 3(4)(b) of schedule 7, that the dispute be arbitrated. Item 4(2) of schedule 7 confers on the arbitrator
dealing with such a dispute power to determine it “on reasonable terms”. The CCMA appointed the commissioner to arbitrate the dispute. The commissioner found in favour of the appellants and issued a detailed
award in the appellants’ favour and against the first respondent. The award is now reported as Maritime Industries Trade Union of SA & others v Portnet (2000)21 ILJ 2519 (CCMA). It is not necessary to reproduce the terms of the award in this judgement. Aggrieved by the award, the first respondent brought an
application in the Labour Court to have that award reviewed and set aside. The Labour Court granted the application. The judgement
of the Labour Court is reported as Transnet Ltd v CCMA & others (2001)22 ILJ 1193 (LC). With the leave of that Court, the appellants now appeal to this Court against that judgement. Before dealing with the appeal, it
is necessary to set out the facts of the matter and some of the evidence that was led in the arbitration proceedings before the commissioner.
The facts
[4]
Through Portnet, the first respondent provides certain services at South African ports to both local
and foreign shipping vessels. One of the services that it provides is the operation of tugs that are used to tow ships into and out
of harbours. They are operated by tugmasters.
[5]
Prior to 1997 the qualification that was required for one to be a tugmaster was the STCW. This qualification
enabled a tugmaster to operate a tugboat both within a port and at sea. Naval officers could not be employed by Portnet as tugmasters
at the time because their qualifications were not recognised. The first respondent suffered a serious shortage of tug masters in
1997. It entered into discussions with the Department of Transport which had the statutory regulatory power in regard to maritime
safety at the time, with a view to finding a solution to the problem. The result of the discussions was that the Department of Transport
permitted the first respondent to employ naval officers under certain conditions. It did this by way of a circular that it issued
on the 24th April 1997 that was known as Marine Circular no 10 of 1997.
[6]
The content of marine circular no 10 is of critical importance in this matter. For this reason it
is necessary that it be reproduced in full. It reads thus:
“MARINE CIRCULAR NO. 10 OF 1997
TO ALL PRINCIPAL OFFICERS
THE EMPLOYMENT OF NAVAL OFFICERS ON PORTNET TUGS
1.
In the continued development of its policy to allow the employment of naval officers on commercial vessels and in discussions with
Portnet, the Department has agreed to their employment on Portnet tugs subject to the following conditions:
(a)
the employment is permitted on exemption in terms of Section 83 of the Merchant Shipping Act;
(b)
it is initially for a period of six months in the position as mate of a tug. This six months covers
the Portnet training phase. Thereafter, it is as master on exemption if Portnet reports favourably on the training phase;
(c)
because the officer does not hold a STCW equivalent certificate, the exemption is for port limits
only and not for voyages to sea;
(d)
the officer concerned must have at least two years’ bridge watchkeeping experience on naval
vessels of more than 24m in length, a medical certificate and have passed a DOT eyesight examination. Furthermore, he must have held
a naval bridge watchkeeping board examination certificate during the period he gained the two years’ experience mentioned above;
and
(e)
the application for exemption is to come from Portnet.
2.
The above is an interim measure. Portnet is developing a training programme and plan to take officers through from rating to master.
There will be a programme for certificates limited to port operations and another to enable the officer to obtain an STCW endorsement
to his or her certificate of competency.
3.
It is the aim of the programme to slot naval officers into these training programmes and in so doing dispense with the need for exemptions.
Should a Naval Officer want to obtain a Deck Officer certificate of competency with STCW endorsement, the current system and practice
calls for him or her to show proof of the following for the issue of a Deck Officer Class 3 certificate of competency.
(a)
12 months’ sea service on trading vessels on long voyages. Those officers who have sea service
on fleet replenishment ships such as the “Drakensberg”, may apply to the senior examiner for masters and mates for such
time to be recognized;
(b)
a pass in the examinations “Naval Architecture” and “Cargo Work and Shipping Practice”
for D.O. Class 3;
(c)
a pass in the DOT eyesight examination;
(d)
equivalency or a pass in:
(i)
survival craft;
(ii)
efficient deck rating;
(iii)
first aid at sea;
(iv)
fire fighting; and
(v)
electronic navigation systems; and
(e)
at least 2 years’ sea service as a watchkeeping officer whilst holding a naval bridge watchkeeping
board examination certificate.
4.
The above is as matters now stand. The current revision of the Examination and Manning Regulations will accommodate the above and
place it on a more permanent footing.
5.
Please do not hesitate to contact Chief Director Shipping or Director Shipping Competency should you require further clarification
or explanation
For DIRECTOR-GENERAL: TRANSPORT”
[7]
Subsequent to the issuing of circular no 10 the first respondent caused an advertisement to be published
in the Sunday Times for vacant posts of tug masters. In this matter the content of the advertisement is also important. For that
reason an example of the text of such advertisement is reproduced hereunder. It reads:
“PORTNET, a division of Transnet Limited, manages and controls South Africa’s commercial ports. The following vacancies exist
within the Marine Department at Richards Bay:
TUG MASTER
(4 POSTS)
Applicants should be in possession of a recognised South African Certificate of Competency as Deck Officer (Minimum Class 5 with a
command endorsement), or an accepted and approved Naval Watch Keeping Officer Certificate. Experience in the handling of sea going
craft will be an advantage.
The salary is attractive and includes an excellent range of large-company fringe benefits. Opportunities for self-realisation and
career advancement within the Group exist.
Interested persons can forward an application accompanied by a detailed CV."
[8]
The individual appellants responded to the advertisements in the newspapers. They were interviewed.
The first respondent then sent them offers of employment by way of letters. In due course the first respondent proceeded to conclude
written contracts of employment with the individual appellants. Clause 18.1 of the contracts of employment of the individual appellants
was to the effect that the “agreement constitutes the entire service agreement between the parties and substitutes any previous agreements that may have
been entered into between the parties and any such previous agreement shall have no further effect.” Clause 18.2 reads thus: “No variation or amendment of this agreement shall have any legal effect unless reduced to writing and signed by the parties”.
[9]
The offers of employment had an annexure “A” which was the remuneration package. The last sentence of annexure “A” stated that “(t)his appointment is also subject to you obtaining a Tug Handling Certificate within 12 months of your appointment as Tugmaster-in-Training”. The first respondent told the individual appellants in their letters of appointment that “(t)his offer of employment is subject thereto that you comply with the requirements of Marine Circular no 10 of 1997 in respect
of the employment of Naval Officers on Portnet tugs.”
[10]
Soon after their employment, the individual appellants underwent training for six months as mates of
tugmasters as required by marine Circular no 10. Thereafter they were granted exemptions in terms of sec 4(a) and 85 of the Merchant
Shipping Act, 1951 (Act 57 of 1951). The exemptions were granted by the South African Maritime Safety Authority (“SAMSA”) which had, in the meantime, taken over from the Department of Transport as the regulatory body in respect of maritime safety. The
granting of exemptions was an interim measure pending the promulgation by SAMSA of regulations that would be binding on all operations
in the industry with regard to the employment of ex-naval officers. The exemptions were extended from time to time.
[11]
In due course the first respondent developed a qualification called the Port Operations Certificate.
That certificate qualified its holders to operate tugs only within ports whereas the STCW certificate qualified its holders to go
to sea as well. Furthermore, the STCW qualification is an internationally recognised qualification whereas the Port Operations Certificate
does not enjoy international recognition. The first respondent required the individual appellants to sit for the examination of the
Port Operations Certificate.
[12]
The individual appellants adopted the attitude that the first respondent was obliged to afford them the
training necessary for them to acquire the STCW and were not prepared to sit for the examinations of the Port Operations Certificate.
The first respondent told them that it was not obliged to train them to acquire the STCW. It said that there was no warrant for the
costs that it would have to incur in providing them with the training necessary for the STCW when it had already developed a qualification
that met its needs and enabled the individual appellants to be tugmasters. It emphasised that the individual appellants had been
appointed to be tugmasters and the qualification that it had developed would qualify them to be tug masters. It threatened them with
dismissal if they did not sit for and passed the examination. Ultimately, the individual appellants relented and wrote the examinations.
Except for one, they all passed and were then employed by the first respondent as tugmasters. As already stated above, a dispute
then arose between the parties on this and, in due course, the dispute was the subject of arbitration proceedings.
Arbitration proceedings
[13]
At the commencement of the arbitration the commissioner urged the parties to try and agree what the dispute
or issues before him were and what he was called upon to decide. A discussion ensued that led to the commissioner making a statement
that sought to identify the issues that he was called upon to decide. None of the representatives indicated to him that his formulation
of the issues did not correctly reflect the issues that he was called upon to decide. Even after the arbitration none of the parties
did so. It, therefore, seems that it can fairly be accepted that the commissioner’s statement was seen by the parties as correctly
reflecting the issues he was called upon to decide. He said that the issues were:.
(a)
whether or not there was an agreement that the individual appellants “were entitled to undergo the STCW training and,
(b)
whether [the respondent]’s conduct in not allowing the [individual appellants] to undergo
that training is in fact unfair looking at the totality of circumstances.”
[14]
In this Court the appellants have made it clear in par 44 of their heads of argument that “(a) the appellants’ case as presented in the CCMA was premised squarely on a claim that they were contractually entitled to
undergo STCW training; (b) the parties in fact agreed that the existence or otherwise of such an entitlement was the first issue
to be determined by the commissioner.” In par 50 of their heads of argument the appellants further stated that “the commissioner correctly identified as the core issue before him whether the [individual appellants] were entitled to receive
training for the STCW certificate in terms of their contracts of employment.” In par 52 of their heads they went on to state that “(t)he dispute can accordingly not be described as anything other than a dispute about the existence of an alleged right to
training.”
[15]
The appellants led the evidence of Mr Barington-Smith, Mr O’Brien, Mr Purdon (wrongly spelt as
Perlin in the CCMA record) and Mr Keller. The first respondent only led the evidence of Captain Van der Krol. The commissioner concluded
that it was a term or condition of employment of the individual appellants that the first respondent would afford them the training that they sought. He also held that the first respondent had failed or refused to afford
them such training. He concluded that such failure or refusal constituted changing their conditions of service and that such conduct
on the first respondent’s part was arbitrary, irrational and constituted an unfair labour practice. He stated that in coming
to the conclusion that such was their term or condition of employment, he had relied on the advertisement, Marine Circular 10 and
the evidence of Messrs O’Brien, Purdon , and Keller. It is therefore necessary to refer to those parts of their evidence that
seem relevant to this issue. Thereafter it will also be necessary to refer to portions of the evidence of Captain Van der Krol.
Mr O’Brien:
In his evidence in chief Mr O’Brien did not give evidence suggesting that in the interview he was promised that he would undergo
the STCW training and on what basis or terms such training would be undertaken nor did he give any such evidence under cross-examination.
There was no re-examination. Accordingly there is no evidence that Mr O’Brien gave which the commissioner could have relied
upon to conclude that in Mr O’Brien’s interview an agreement was reached between Mr O’Brien and the first respondent
about the STCW training. Mr O’Brien testified that, after his appointment and during the training period no mention was made
of any training for the STCW or examinations or course which would have to be completed to comply with Marine Circular No 10.
[16]
Mr O’Brien also testified to an impromptu meeting with Captain Van der Krol at some stage where
the issue of the individual appellants obtaining the STCW was discussed. He said that the captain had told them that, if they wanted
to go to sea in order to obtain the STCW, they could resign and do it in their own time. Mr O’Brien gave his understanding
of part of the contents of circular no 10 as being that the first respondent was going to establish two programmes and it was going
to be up to the employee to choose which one he wanted to do. Mr O’ Brien testified that in order to get the STCW, one had
to do “the theoretical block at Technikon, you then go to sea to comply with the minimum seatime required by SAMSA. On completion
of those two you can then sit an examination.” Under cross-examination Mr O’ Brien testified that the provision in his letter of appointment by the first respondent that such
offer was subject to him complying with marine circular no 10 of 1997 in respect of employment of Naval Officers on Portnet meant
that at some stage or another “we have to comply.... either a Master Port Operations Certificate which did not exist at that time or an STCW qualification.”
He was then asked why it was necessary for them to comply with that. He replied that that was in order for them to be able to “legally drive a tug without exemption”. He conceded that it was a Portnet tug that they were being enabled to drive legally.
Mr Purdon (spelt as Mr Perlin in the transcript)
[17]
In his evidence in-chief Mr Purdon was asked what was said at the interviews that he attended. He replied
that “the point of further training was brought up especially with respect to class 3 certification.” He went on to say: “ It was mentioned that [the first respondent] would be sending us to actually get the qualification. Class 5 Port Operations
was never mentioned.”It is noteworthy that at this stage of his evidence Mr Purdon did not say when it was said that they would be sent to obtain the qualification
nor did he say on what basis they would be sent. He did not say whether this would be on the basis of full-pay, part-payment or on
the basis of unpaid leave.
[18]
Mr Purdon also testified that he was only short of six months’ seatime for his class 3 certificate.
He then stated that he requested permission to go to sea for an additional six months. He was told, he said, that “we would be released but we needed to find our own boats.” He continued thus: “I enquired when it came to Unicorn, Unicorn informed me that I would need an exemption from SAMSA to say that I could sail
as a Class 3 certificated person and Unicorn would actually send me on a tanker course in order to sail. However, SAMSA was not willing
to give us those dispensations so the possibility of going to sea with the Unicorn was not available. The possibilities of going
to sea with Safmarine, we were informed by them that Portnet has a training programme with them and in order for us to go to sea
with them we would need to get on some Portnet cadet training programme.”
[19]
It is also important to note that Mr Purdon did not say in his evidence that, when he was told that they
would be released to go to sea in order to obtain the STCW but that they would have to find their own boats, he protested and said
that in terms of an agreement with the first respondent, the first respondent was obliged to either provide the boats itself or to
make the necessary arrangements for him to get a boat. Instead he proceeded to try and make arrangements on the basis of what the
first respondent had said. That is not the conduct of a person who believed that his contract of employment obliged his employer
to actually provide all the necessary for that training.
[20]
Within the context of Marine Circular 10, Mr Purdon was asked whether there was any indication that he
would have an opportunity to obtain the STCW qualification. His reply was:
“Yes there was an effort from Portnet’s side to a specific point and every time it was yes, you can go and all of a sudden there
were reasons why we were not able to go to sea, either it was not in the company’s interests, you cannot be released. The following
person is not available or you cannot, you also have to go to the cadet training programme. Every time you made some effort to further
yourself it was blocked somewhere.”
It is important to observe that Mr Purdon did not give any evidence to show that the reasons that were given to him at different stages
as to why he could not be sent to training or the basis on which he could be sent to training were not true or valid. The commissioner
has also not said why those reasons should not be accepted as having been genuine, true and valid.
[21]
Mr Purdon also gave evidence about the importance to him of obtaining the STCW. He said that it would
ensure his career advancement within the first respondent and mobility within the industry. He also said that, although he was not
willing to leave the first respondent, the STCW would ensure that he was not “ stuck in one specific company for another 35 years until the age of 63.“ He said that the Port Operations Certificate put him in the same job for the next 35 years.
[22]
Mr Purdon also testified that the Bridge Watchkeeping Certificate was discussed in his interviews as
well as how much sea time he required for his Class 3 certificate. He then said: “ that was basically the things that we discussed at my interview with regard to training. Then it was they wanted to know
how much further training Portnet would actually have to have before I had a class 3 certificate.” A little later his representative asked him this leading question :- “So there was considerable discussion, so you could say there was some sort of meeting of minds?” Not unexpectedly, Mr Purdon’s reply was in the affirmative. At some stage during Mr Purdon’s evidence - in- chief the
commissioner warned Mr Purdon’s representative not to “ put words in the witness’ mouth”. He also told him that “(a)t the end of the day you are going to do your case a lot of harm because I am going to take it into account when I make
my award.” It is also important to observe that Mr Purdon never at any stage testified that any representative o
.RTF of original document