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FLYNOTES: LABOUR – Jurisdiction – Collective agreement dispute – Arising from interpretation in circumstances in which referral to GPSSBC is at instance of non-party union or employee – Argument that only parties to collective agreement could refer disputes rejected – Restrictive interpretation – Would unjustly limit access to dispute resolution mechanisms – Violation of s 34 Constitution – GPSSBC had jurisdiction to determine dispute – Labour Court and arbitrator erred in its findings – Appeal upheld.

 

THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG

 

Reportable

Case No: PA06/2022

 

In the matter between:

 

SOUTH AFRICAN CORRECTIONAL SERVICES

WORKERS UNION (“SACOSWU”) obo BRAIN KASPER    Appellant

 

and

 

THE MINISTER OF JUSTICE AND CORRECTIONAL

SERVICES                                                                             First Respondent

 

THE GENERAL SERVICES SECTORAL

BARGAINING COUNCIL (“GPSSBC”)                                Second Respondent

 

MBULELO SAFA N.O.                                                          Third Respondent

 

Heard:         17 September 2024

Delivered:   18 December 2024

Coram:        Van Niekerk JA, Nkutha-Nkontwana JA et Jolwana AJA

 

JUDGMENT

 

JOLWANA, AJA

 

Introduction

 

[1]  This appeal, which is with the leave of the Labour Court, is against the judgment and order of the Labour Court in terms of which the appellant’s application to review the arbitration award of the General Public Service Sectoral Bargaining Council (GPSSBC) was dismissed. The crisp issue in this appeal is whether it is only a party to a collective agreement that has a right to declare a dispute about its interpretation or application. Ultimately, whether the GPSSBC is clothed with jurisdiction to determine a dispute arising from the interpretation of a collective agreement in circumstances in which the referral to it is at the instance of a non-party union or employee.

 

Background

 

[2]  The appellant, on behalf of its member, Mr Brain Kasper, referred a dispute to the GPSSBC concerning the interpretation of GPSSBC Resolution 2 of 2009. This resolution embodies a collective agreement on the implementation of an occupation-specific dispensation (OSD) for Correctional Services Officials. The resolution provides for such things as salary structure, career pathing opportunities, pay progression, grade progression, the recognition of appropriate experience and similar matters. The parties to the collective agreement are unions that meet the specified threshold for bargaining council membership and the Department of Correctional Services, of which Mr Kasper is an employee. Mr Kasper is a member of the appellant union which is not a party to the collective agreement. The dispute resolution clause of the collective agreement provides that in the event of a dispute about its interpretation or application, any party may refer the dispute to the GPSSBC for resolution in terms of the dispute resolution procedure of the council.

 

Before the GPSSBC

 

[3]  At the commencement of the bargaining council proceedings, the first respondent made a preliminary application. It sought a ruling that the GPSSBC lacked jurisdiction to entertain the appellant’s interpretation dispute. This was on the basis that Mr Kasper was a member of a union that was not an admitted party to the GPSSBC and therefore was not a party to the collective agreement. The first respondent contended that an interpretative dispute could only be referred to the GPSSBC by a registered trade union that is a party to the collective agreement. Therefore, the GPSSBC lacked jurisdiction to entertain the dispute.

 

[4]  The appellant applied for the dismissal of the jurisdictional point in limine on the basis that the scope of Resolution 2 of 2009 included and bound employers, trade unions party to the agreement and their member employees, and employees who are not members of any trade union which is a party to the agreement who fall within the scope of the GPSSBC. It contended that whilst it does not meet the threshold for membership and therefore it is not a party to the collective agreement, it cannot be prevented from representing the interests of its members in the GPSSBC.

 

[5]  The arbitrator reasoned that since the appellant made the referral to the GPSSBC in circumstances in which it was not a party to the resolution sought to be interpreted, the appellant did not have locus standi to refer a dispute on the interpretation and application of GPSSBC Resolution 2 of 2009 as it was not a party to the said resolution. Consequently, GPSSBC lacked jurisdiction to entertain the dispute.

 

Before the Labour Court

 

[6]  Dissatisfied with the reasoning and the conclusion of the arbitrator, the appellant instituted review proceedings in the Labour Court seeking the review and setting aside of the arbitrator’s jurisdictional ruling. The appellant further sought a declarator that the GPSSBC does have jurisdiction to entertain the dispute on the interpretation and application of the collective agreement. Therefore a non-party to a collective agreement such as the appellant may refer a dispute in terms of section 24 of the Labour Relations Act[1] (LRA). The appellant submitted that the arbitrator incorrectly adopted a literal approach in his reliance on Arends and Others v South African Local Government Bargaining Council and Others[2] (Arends) (in which reliance was placed on South African Police Services v Du Preez and Others In Re: Du Preez v South African Police Services[3] (Du Preez)) as authority for the conclusion that only a party to a collective agreement has a right to refer a dispute about its interpretation or application. The appellant contended that those judgments were plainly wrong. Alternatively, the matters of Arends and Du Preez were distinguishable from this matter and therefore the arbitrator was, on this basis too, wrong in relying on those judgments.

 

[7]  The Labour Court found that as the appellant was not a party to the collective agreement contained in GPSSBC Resolution 2 of 2009, it followed that the appellant had no locus standi to refer a dispute about its interpretation and application. It accordingly concluded that the GPSSBC had no jurisdiction to entertain the dispute. In doing so, it relied on the case of Arends and made an observation that the case of Arends was taken on appeal before this Court[4]. In deciding that matter, this Court did not set aside the findings of the Labour Court on the interpretation of section 24 of the LRA. The Labour Court further reasoned that section 24 of the LRA requires that the dispute must not only be about the interpretation or application of the collective agreement but also it must be between parties to the collective agreement. It thereupon dismissed the review application.

 

Submissions on appeal

 

[8]  The grounds of appeal relied on by the appellant are that the Labour Court was wrong in finding that only a party to a collective agreement has a right to refer a dispute about its interpretation or application. It further erred in not finding that any party bound by that collective agreement has a right to refer a dispute about its interpretation or application.

 

[9]  It was submitted, on behalf of the appellant, that the Labour Court erred in its interpretation of section 24 of the LRA. The Labour Court’s judgment has adverse implications in relation to access to dispute resolution processes for non-parties to collective agreements. If it was only a party to a collective agreement that has a right to declare a dispute about its interpretation or application, that would lead to access to the dispute resolution process provided for in section 24 of the LRA being unjustifiably curtailed. The section 24 dispute resolution process would be unavailable to many people who are bound by collective agreements concluded by unions party to collective agreements of which they are not members.

 

[10]  It was further contended that while the Labour Court was correct in attaching the appropriate weight to the judgments of Arends and Du Preez, those matters were only authority for the proposition that only a party to a collective agreement may refer a dispute about its interpretation or application. It was argued that those matters were, in any event, decided by the same Judge and therefore, the issue of access to the dispute resolution mechanism provided for in section 24 of the LRA was not settled.

 

[11]  The appellant contended that the question of who is entitled to refer a dispute on the interpretation or application of a collective agreement is expressly answered by the use of the words “any party to the dispute” in section 24(2). Therefore, if the legislature intended to limit the right to refer a dispute only to a party to the collective agreement, it could have done so by simply using the words “any party to the collective agreement may refer”. The legislature chose not to do so. It was submitted that the interpretation of section 24(2) contended for by the appellant was further bolstered by section 24(5). Section 24(5) provides that if the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

 

[12]  The Court in Arends approached the matter on the basis that section 24 limits the dispute to being between parties to a collective agreement. In placing reliance on that judgment, the court a quo did not deal with the appellant’s contention about the language employed by the legislature in the use of the words “any party to the dispute” as against “any party to the collective agreement”. The Court in Arends also relied on the fact that section 24 is located in part B – collective agreements of the LRA and on that basis, only collective agreements issues are dealt with there. It then said that section 23 of the LRA, which is also in Part B, deals with the legal effect of collective agreements.

 

Analysis

 

[13]  It is important to point out from the outset that the test in this matter is not the usual test of whether the commissioner’s ruling was reasonable in light of the facts and the material before him. The issue is whether the GPSSBC has jurisdiction or not and thus, the test is whether the arbitrator was right or wrong in his conclusion that the GPSSBC did not have jurisdiction to entertain the dispute.

 

[14]  This matter turns on the interpretation of section 24 (2) of the LRA read in context with other relevant sections of the LRA and indeed, the Constitution[5]. Section 24 (2) reads:

‘(2)  If there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute in writing to the Commission if –

(a)  the collective agreement does not provide for a procedure as required by subsection (1);

(b)  the procedure provided for in the collective agreement is not operative; or

(c)  any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement.’

[15]  However, the Court in Arends did not deal with the fact that while the parties to a collective agreement are the parties that have entered into it, section 23(1) extends collective agreements beyond the signatory parties. Section 23(1) reads:

‘(1)  A collective agreement binds –

(a)  the parties to the collective agreement;

(b)  each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them;

(c)  the members of a registered trade union and the employers who are members of a registered employers’ organisation that are party to the collective agreement if the collective agreement regulates –

(i)  terms and conditions of employment; or

(ii)  the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers;

(d)  employees who are not members of the registered trade union or trade unions party to the agreement if –

(i)  the employees are identified in the agreement;

(ii)  the agreement expressly binds the employees; and

(iii)  that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.’

 

[16]  Resolution 2 of 2009 specifically defines “employees” as people employed by the Department of Correctional Services in terms of the Correctional Services Act[6] and persons employed in terms of the Public Service Act[7]. The Court in Arends did not deal with the fact that, in terms of section 23 of the LRA, collective agreements may have a wider reach than just the parties to it.

 

[17]  The appellant also raised the issue of section 32 of the LRA which incidentally, was not dealt with by the Court in Arends. Section 32(1) enables a bargaining council to ask the Minister to extend a collective agreement to non-parties. The Minister is then empowered to extend a collective agreement. It reads:

‘(1)     A bargaining council may ask the Minister in writing to extend a collective agreement concluded in the bargaining council to any non-parties to the collective agreement that are within its registered scope and are identified in the request, if at a meeting of the bargaining council –

(a)  One or more registered trade unions whose members constitute the majority of the members of the trade unions that are party to the bargaining council in favour of the extension; and

(b)  One or more registered employers’ organisations, whose members employ the majority of the employees employed by the members of the employers’ organisations that are party to the bargaining council, vote in favour of the extension.’

 

[18]  In addition to the provisions of sections 23(1) and 32(1) of the LRA, clause 4 of the resolution provides:

‘4.1     Subject to clause 4.2 this agreement binds

4.1.1   the employer;

4.1.2   the employees of the employer who are members of trade union parties to this agreement; and

4.1.3   the employees of the employer who are not members of trade union parties to this agreement, but who fall within the registered scope of the council.’

 

[19]  Mr Kasper falls within the registered scope of the GPSSBC. Therefore, in terms of clause 4.1.3, the collective agreement in this matter is applicable to him. There is something patently wrong with parties to a collective agreement reaching an agreement that binds non-parties but precludes them from some of the dispute resolution processes ordinarily available to their members. The difficulties become manifest when the non-party, who is bound by the terms of the collective agreement, is not allowed to contest their interpretation or the interpretation of a document or agreement that binds her or him. It is cold solace to say that that party is not precluded from seeking other remedies, as the first respondent contended.

 

[20]  With regard to section 32(1) and the power bestowed on the Minister to extend the application of the collective agreement to non-parties, the first respondent contended that such extension is not automatic and that it must be sought and obtained. The difficulty with the first respondent’s argument in this regard is that it creates a situation in which, the same employees who did not have the rights and obligations that flow from the collective agreement suddenly have those rights and obligations at the stroke of a pen by the Minister granting the extension. It is difficult to imagine that the legislature could have intended to deprive a non-party employee or non-party trade unions depending on the whims of the trade union parties to the collective agreement and/or the Minister.

 

[21]  It seems to me that such a distinction between employees who are all otherwise bound by the collective agreement but distinguished purely based on whether or not the threshold for bargaining council membership is reached is both an artificial and illogical differentiation. This, in circumstances in which the legislature couched section 24(2) in wide terms and therefore inclusively by the employment of the words “parties to the dispute” as against “parties to the collective agreement”. Furthermore, the first respondent’s argument on Kem-Lin Fashions CC v Bruton and another[8] (Kem-Lin Fashions) on which the appellant relies is difficult to understand. It was submitted on behalf of the first respondent that cases in which courts have held that collective agreements concluded between the employer and the majority party union also apply to non-party unions were based on the respective agreements having been extended to non-party union members.

 

[22]  In Kem-Lin Fashions, this Court expressed itself as follows:

‘… [I]t seems to me that the effect in law of an extension of a collective agreement in terms of s 32(2) is that, for all intents and purposes, a non-party is turned into a party, and is placed in relation to the collective agreement on the same level as a signatory to the collective agreement. The extension of a collective agreement by the Minister in terms of s 32(2) means making the collective agreement binding on employers and employees who otherwise would not be bound by it.’

In casu, Resolution 2 of 2009 is binding on Mr Kasper and many other employees to whom the resolution applies.

 

[23]  If the whole architecture of all the sections dealing with collective agreements is considered carefully, there is nothing to suggest that the legislature intended to exclude employees who happen to be members of non-party unions from accessing the dispute resolution mechanism created in section 24. There does not seem to be any logical reason to exclude referring the dispute about the interpretation or application of a collective agreement to the GPSSBC when it comes to employees who happen to be members of non-party unions such as Mr Kasper. This is so because section 24(2) does not restrict access to the dispute resolution mechanism only to parties to a collective agreement as the legislature elected to couch the section inclusively through repeatedly using words such as “any party to a dispute may refer the dispute…”.

 

[24]  Restricting the remedial processes provided for in section 24(2) would require unnecessarily reading into the section the words, “collective agreement” and cutting out the words “a dispute”. Such excision and reading in would be done so as to deny some employees access to justice in the form of being able to contest for a particular interpretation or application of a collective agreement which is ordinarily available to employees through their unions which are parties to collective agreements. Doing so would be impermissibly venturing into the exclusive law making domain of the legislature instead of interpreting the law.

 

[25]  Furthermore, such restrictive interpretation would have the effect of unjustly limiting access to the rights provided for in section 34 of the Constitution[9]. Section 34 of the Constitution provides:

‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’

 

[26]  Therein lies the problem with the first respondent’s argument that the appellant could use other remedies. Once it is accepted that the appellant has a dispute about the interpretation or application of a collective agreement which is binding on its members, it is simply incorrect and self-contradictory to restrict the remedies which may be sought by excluding interpretation when the very dispute concerns interpretation. Axiomatically, all documents, be they legislation, contracts generally, and indeed collective agreements, are fertile ground for contested interpretations as to their effect and meaning or application in their very nature. To say that if the dispute is about the interpretation, an interested or affected party cannot seek to resolve that dispute through an interpretative exercise in a court or other impartial tribunal such as a bargaining council or the CCMA is a direct affront to section 34 of the Constitution.

 

Conclusion

 

[27]  This surely cannot, nor should it be countenanced. The right of access to all and any lawful forms of dispute resolution should only be curtailed in the most extreme and deserving cases and with great reluctance. Whether or not a party to the dispute will succeed in the interpretation contended for is irrelevant. The fact of the matter is that just like section 34 of the Constitution, section 24(2) does not prohibit the appellant from accessing the dispute resolution mechanism provided for therein. Therefore, it follows that the appeal must be upheld.

 

[28]  Counsel for the appellant and the first respondent were in agreement that, as the arbitrator’s ruling was a jurisdictional ruling, and if this Court finds for the appellant, the matter must go back to the GPSSBC for arbitration before a commissioner other than the third respondent.

 

[29]  Therefore, the following order is made:

 

Order

1.  The appeal is upheld with no order as to costs.

2.  The Labour Court’s judgment is set aside and replaced with the following order:

1.  The GPSSBC has jurisdiction to determine the dispute on the interpretation and application of Resolution 2 of 2009.

2.  The matter is remitted back to the GPSSBC for arbitration before a commissioner other than the third respondent.

3.  There is no order as to costs.

 

M.S. Jolwana

Van Niekerk JA and Nkutha-Nkontwana JA concur.

 

Appearances:

FOR THE APPELLANT:                        Adv F E le Roux

Instructed by:                                        Brown Braude & Vlok Inc.

FOR THE FIRST RESPONDENT:        Adv N Msizi

Instructed by:                                        The State Attorney, Gqeberha

 

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