RULING. In the ARBITRATION between DEPARTMENT OF WATER AFFAIRS RULING

Transcription

1 1 CASE NO: PSCB68-11/12 PANELIST: JOYCE TOHLANG DATE: 27 March 2012 In the ARBITRATION between PSA OBO SELOTA Applicant AND DEPARTMENT OF WATER AFFAIRS Respondent DETAILS OF THE HEARING AND REPRESENTATION 1. The matter was scheduled for Conciliation on the 20 February The applicant appeared and he was represented by Mr. Jensen an official of PSA. The respondent was represented by Mr. Ngobeni.

2 2 POINT IN LIMINE 2. This is a dispute referred to the Council in terms of Resolution 14 of The applicant in its referral documents cited the Public Service Commission (hereinafter referred to as the Commission ) as the 2 nd respondent in this matter. 3. The Council did not capture the Commission on the notice of set down and it appears that the Commission was not notified of this process. 4. It is common cause that the applicant lodged a grievance with the respondent and that the grievance was dealt with by the respondent up to the stage of the Minister. The grievance was not resolved to the satisfaction of the applicant. 5. The applicant sought that the matter be referred to the Commission and this was done. The applicant s complaint in this instance is that despite the Commission having 30 days in terms of the Collective Agreement to consider such grievance and inform the Executing Authority of its recommendation, the Commission has failed to do so and this is the cause of action in this matter. 6. The first question that arises is whether the fact that Public Service Commission has not provided its recommendation to the applicant within thirty days as prescribed by the Collective Agreement is a dispute falling within the ambit of Section 24 of the Labour Relations Act.(i.e. whether it is an interpretation and application of a Collective Agreement dispute) 7. The second question is if it is can the Council make an order or ruling that is binding against the Public Service Commission? 8. Section 24 (1) of the Labour Relations Act provides that: Every collective agreement, excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26, must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The

3 3 procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration. 9. In this case Clause 4.1 of Resolution14 of 2002 provides that if there is a dispute about the interpretation or application of this agreement any party may refer the matter to the Council for resolution in terms of the dispute resolution procedure of the Council. 10. The question that arises in this case is whether the fact that the Public Service Commission failed to comply with the obligations imposed on it by the Agreement is an issue of interpretation or application of a Collective Agreement. I submit that it is not. 11. Mr. Jensen submitted during this process that since the grievance was submitted to the Public Service Commission they were informed that the response or outcome was awaiting signature before it could be given to the relevant person. This clearly indicates that the parties do understand and are ad idem on the interpretation of the clause. There is no question of application in this regard. 12. I accordingly find that this is a compliance issue as indeed the relief sought by the applicant would be an order compelling compliance. I find that there is no dispute in terms of the interpretation and application of a collective agreement and the issue is the enforcement of the collective agreement which issue I submit should be dealt with in terms of Section 33 of the Labour Relations Act. 13. Section 33 provides that:- (1) The Minister may at the request of a bargaining council may appoint any person as the designated agent of that bargaining council to help it enforce any collective agreement concluded in that bargaining council.

4 4 (2) A bargaining council must provide each designated agent with a certificate signed by the Secretary of the bargaining council stating that the agent has been appointed in terms of this Act as a designated agent of that bargaining council. (3) Within the registered scope of the bargaining council, a designated agent of the bargaining council has all the powers conferred on a Commissioner by section 142, read with the changes required by the context, except the powers conferred by section 142(l)(c) and (d). Any reference in that section to the director for the purpose of this section must be read as a reference to the Secretary of the bargaining council. 14. The second question is whether the council can make a competent ruling against the Public Service Commission. The Public Service Commission is established in terms of section 196(1) of the Constitution of the Republic of South Africa Act, No108 of It is governed by the Public Service Commission Act, In terms of schedule 1 in the Public Service Act, 1994 as amended, the Public Service Commission is listed as a National Government Department. Thus it is clear that it falls within the definition of the state as an employer accordingly the Council can make a competent award that is binding on it. 15. In this case however I am of the view that the dispute is not about the interpretation and application of a Collective Agreement and I thus do not deem it necessary to join the Public Service Commission as a party. (a) The Public Service Commission is listed as a state department and accordingly a competent ruling may be made against it.

5 5 (b) The dispute as referred by the applicant does not fall within the ambit of section 24(1) or rather is not a dispute of interpretation and application of a collective agreement. (c) The matter is dismissed JOYCE TOHLANG ARBITRATOR