1
PUBLIC HEALTH AND WELFARE SECTOR BARGAINING COUNCIL
In the matter between:
NEHAWU o b o BURGER and OTHERS APPLICANT
and
THE DEPARTMENT OF SOCIAL SERVICES
AND POVERTY ALLEVIATIONRESPONDENT
CASE REF. NO.PSHS 101-05/06
DATE OF AWARD15 November 2005
AWARD
DETAILS OF HEARING AND REPRESENTATION
This is the award in the arbitration between NEHAWU o b o Burger and Others (to be referred to collectively as “Applicants”) and the Department of Social Services and Poverty Alleviation (“the Department”).
There were nineteen Applicants in this matter. The names of the Applicants were accurately recorded.
The arbitration hearing was held at the Department’s offices in Cape Town on 18 October 2005. Closing argument was received on 01 November 2005.
Moses Orlando (“Orlando”) represented Applicants.
David Labuschagne (“Labuschagne”) represented the Department.
The arbitration was held under the auspices of the Public Health and Welfare Section Bargaining Council (“PHWSBC”). The arbitrator was Hilary Mofsowitz (“Mofsowitz”) appointed by the PHWSBC. The proceedings were recorded.
ISSUE IN DISPUTE
Whether the PHWSBC has jurisdiction to arbitrate the dispute.
BACKGROUND
Applicants are employed as Administrative Officers (salary level “7”). They are utilized at different District offices within the Directorate of Social Security of the Department.
The dispute arose when Applicants became aware that their “Rank Equals” (Administrative Officers situated at Head Office) had undergone job evaluation. The consequence of this exercise was the promotion of the Administrative Officers to the next level, that of salary level “8”.
Applicants are in dispute with the Department’s failure to provide them with the same opportunity to participate in the job evaluation process and hence the opportunity to be promoted.
Applicants have placed in dispute their exclusion from the process and asked that this be considered as an unfair labour practice (in relation to promotion).
Applicants seek that I order the Department to job evaluate their positions so that they can find themselves in the same position as their previous rank equals. This promotion should be retrospective to January 2005.
The dispute was referred in terms of S 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) in relation to promotion.
SUMMARY OF ARGUMENT
APPLICANT’S ARGUMENT
1.The dispute falls under the ambit of the unfair labour practice jurisdiction contained in S 186 (2) (a) of the LRA.
2.The dispute concerns the Department’s unfair conduct relating to “promotion, demotion and refusal of the Department to promote” Applicants. This amounts to “discrimination” and “inconsistency”.
3.The Department’s unfair conduct has had “serious” financial consequences and implications.
4.It is an issue of “Rights” and not a “matter of mutual interest”.
5.Management’s decision to implement job evaluation must be applicable to all employees. The Department’s failure in this regard is in contravention of the Public Service Regulations and leads to unfairness and inconsistency.
6.While management is empowered to make decisions, these decisions are subject to scrutiny in terms of “correct” procedures.
7.The Department failed to advance objective criteria for its differentiation of Applicants and the other Administrative offices.
8.At the end of arbitration proceedings, it is within the arbitrator’s power to determine the nature of the dispute.
9.The provisions of the Public Service Regulations prescribe that job evaluation must be conducted “through all offices” in order to comply with the regulation of “equal work for equal pay”. This creates an “expectation” that job evaluation would be done.
10.The expectation created once the process of job evaluation commenced (and not extended to Applicants) becomes a “right” and must be seen beyond a “work practice”.
11.All employers hold a duty to treat employees fairly and consistently in all aspects of the employment relationship. The Department’s failure in this regard is in contradiction of the contract of employment.
THE DEPARTMENT’S ARGUMENT
1.The PHWSBC does not have jurisdiction to arbitrate the dispute, as it is a dispute of interest.
2.Applicants jobs are not regarded as “essential” services. Applicants conceded this.
3.The dispute does not concern existing rights, but seeks to create “new” rights by way of an arbitration award.
4.Applicants seek that I determine “reasonableness” and “fairness” that their jobs be evaluated (in accordance with the manner in which their counterparts were treated).
5.Employees do not hold a contractual obligation to have their jobs evaluated. There are no such rights in legislation or similarly there are no such rights in terms of the Collective Agreement.
ANALYSIS OF EVIDENCE AND ARGUMENT
Applicants’ argued that the Department committed an unfair labour practice in its failure to evaluate Applicants positions.
Applicants requested that I order the Department to conduct a job evaluation exercise and if merited, be considered for promotion.
I have accepted that the unfair labour practice definition expressly includes unfair conduct relating to the promotion of employees.
The onus rests with the employee. Employees will have to show that they have been overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. It is trite that employees have the right to be protected against unfair labour practices and all employees have the right to fair labour practices. However it is generally accepted that the definition of an unfair labour practice is restricted to specific requirements such as promotion, demotion etc.
The crucial question to be addressed is whether the Department’s failure to conduct a job evaluation exercise falls under the jurisdiction of the unfair labour practice provision.
I have noted the decision of Commissioner Christie in her award dated 12 June 1997 under case reference WE 1380. Commissioners/arbitrators are not bound by other Commissioners/arbitrators decisions. There are also many later labour court and high court decisions that differ from her point of view. The courts have adopted a narrow interpretation of the unfair labour practice jurisprudence. It was not the intention of the legislation (in terms of the unfair labour practice provision) to include a broad general “right” not to be unfairly treated. In terms of the LRA, job evaluation is not a right. It is part of the contractual obligation between employer and employee. Generally speaking a dispute relating to proposals for the creation of new rights is a dispute of mutual interest. Such disputes are ordinarily to be resolved by collective bargaining.
The “principles’ of job evaluation as contained in the Public Service Regulations regulates determination through the Minister. If however Applicants consider that the Department has failed to comply with the terms of the Collective Agreement, they have the right to refer a dispute in this regard.
In Mzimni & Another v Municipality of Umtata (1998) heard in the High Court of the Transkei, the court found that the dispute/referral did not give effect to the primary objectives of the LRA and therefore the High Court had jurisdiction to hear the matter. The referring applicants were aggrieved that while the “posts and ranks” of a number of employees were upgraded, their posts were not. Accordingly the referring applicants did not enjoy the benefit of having their salaries upgraded.
The court came to a similar conclusion in Ntlabezo & others v MEWC for Education, Eastern Cape and others (2002) 3 BLLR 274.
Even if the Department acted unfairly in its failure to evaluate Applicants, I do not regard this to fall under the definition of the unfair labour practice provision contained in S 186 of the LRA.
I do not find that the Department’s failure to evaluate Applicants’ positions falls within the terms of the unfair labour practice definition contained in S 186 of the LRA. This dispute may very well find favour in a different forum.
It appears that the High Court and the Constitutional Court have initiated a new development with regard to fairness in the workplace (on the basis of certain provisions in the Constitution) and have confirmed the limited and restrictive nature of the unfair labour practice provision in the LRA. Arbitrators are therefore bound by these decisions.
AWARD
I find in favour of the Department.
The PHWSBC does not have jurisdiction to arbitrate the dispute.
HILARY MOFSOWITZ
For the PHWSBC
15 November 2005
PSHS 101-05/06