ARBITRATION AWARD - PSCBC

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ARBITRATION

AWARD

Commissioner: Joseph Thee Case No: PSBC 204 /09/10 Date of Award: 6 May 2012

In the ARBITRATION between: PSA OBO CRAFFERT SJ & 23 OTHERS

(Union / Applicant) and DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

(Respondent) Applicant’s representative: Adv. Robert Stelzner (SC) ______________

Applicant’s address: Adams &May Attorneys _________________

PO Box 1837 ________________________

Zeeland House

Cape Town ___________________________

Telephone: (021) 409 7368 _______________________

Fax: (021) 409 7399 _______________________

Respondent’s representative: Adv. Aston Schippers (SC) ___________

Respondent’s address: 4th Floor, 22 Long Street

P O Box 223 __________________________

Cape Town _________________________

8001 _______________________________

Telephone: (021) 462 5471 _______________________

Fax: (021) 462 5063 _______________________

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DETAILS OF HEARING AND REPRESENTATION

1. This is the award in the arbitration matter between PSA obo of Craffert and 23 others, the Applicants

and the Department of Justice and Constitutional Development, the Respondent.

2. The arbitration hearings took place at the premises of the Respondent in Plein Street, Cape Town

on 20 September 2011, 13 October 2011, and 8 November 2011 and were completed on 17

January 2012.

3. The Applicants were represented by Advocate Robert Stelzer SC as instructed by the Attorney Firm

Adams & May. The Respondent party was represented by Advocate Ashton Schippers SC,

instructed by Ms B Mantane, State Attorney.

4. The proceedings were conducted in English and Afrikaans and digitally recorded

ISSUE TO BE DECIDED

5. I must decide whether the Respondent is in breach of PSCBC Resolution 7 of 2000.

BACKGROUND TO THE DISPUTE

6. The Applicants were appointed as judges‟ secretaries and employees in terms of the Public Service

Act (“PSA”) of 1994 on a salary level 7. For many years they were permitted to take paid annual

leave at times which suited them and the judges for whom they were working.

7. When the High Court was in recess the secretaries were not required to report for duty but were on

stand-by and would only have to come in if their judges required their attendance. These periods

when they were on stand-by it did not count as annual leave.

8. The Respondent had long regarded this arrangement of created inconsistencies in the workplace

and that the secretaries working arrangement should be harmonised with those of other staff

governed by the PSA read together with the collective agreement (CA) concluded in the Public

Service Coordinating Bargaining Council (PSCBC) in terms of Resolution 7 of 2000.

9. On 5 February 2008 at a meeting of the Judge President of the Western Cape High Court and 16

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other judges and the Chief Registrar, Court Manager and officials it is alleged that an agreement

was reached whereby the existing practice would continue for secretaries to be on stand-by during

court recess, if used they would be on duty and if not would be required to account and fill in leave

ex post facto to prevent abuse.

10. This agreement was recorded in writing but not apparently formalised into public policy /procedure and

verified in the relevant chamber/ council.

11. On 3 December 2008 the Court Manager of the Western Cape High Court, Mr Kolosa issued an

instruction that judges‟ secretaries would be required to report for duty and work during the

Christmas recess or alternatively apply for annual leave, i. e in advance. The Applicants complied

under protest.

12. The substantive issues in dispute are whether the applicants have an implied right to be on standby

and if so whether the Court Manager unilaterally changed the terms and conditions of the judges

secretaries.

13. The Applicants referred their dispute to the Bargaining Council on 17 August 2009. A conciliation

meeting was held on 2 October 2012 but the dispute remained unresolved and certificate to such

effect was issued.

14. The Applicants requested that the dispute be resolved through arbitration.

SUMMARY OF EVIDENCE AND ARGUMENT

THE APPLICANT’S CASE

15. Judge Van Zyl testified as follows. He was a Judge in the High Court for 23 years. On his request he

was transferred to the Western Cape High Court until his retirement in 2008.

16. After his retirement he was appointed by the President as an Inspecting Judge. During his term of

office he was required to conduct various duties from civil to criminal matters and had relied on the

support of his secretary.

17. He appointed his own secretary after he had followed due processes. Judges and secretaries are

paid by the Department of Justice. His secretary was required to be on standby and at his disposal

for 24 hours.

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18. The recess periods were used as an opportunity to allocate cases that were uncompleted judgements

in more complicated matters.

19. When he arrived in Western Cape, he leant that some people had compliant about the perks and

benefits afforded to some („secretaries‟) and not to other staff.

20. The dissatisfaction by other staff members had created uncertainty as to whether the judge can be

easily resourced during recess. His preference was that secretaries should be on standby to assist

the judge.

21. His secretary was always in the office during recess when he came in to write his judgements. During

recess when he was working at home, he expected his secretary to collect documents at the office

and do research.

22. Even if he had worked from the office it would be unproductive if she went home only to return some

time later when he needed her services. Judges secretaries are not ordinary secretaries; they are

sui generis and should be treated differently. A high degree of trust exists between Judges and

secretaries.

23. During his 15 years on the bench his secretary was required to type his judgements. She was totally at

his disposal and would be able to apply disciplinary measures if needed.

24. Secretaries are highly skilled and have a wealth of institutional knowledge. The secretaries were also

required to update the law reports as published on a monthly basis. They went to the Appellate and

Divisional Courts as part of their research duties.

25. Secretaries would act as the link between counsel and the court. She would plan the entire

proceedings before and during the court sessions. She would also be assigned to work with an

Acting Judge when he was not around. Other judges agreed with him that their secretaries

operated exactly the same. Chief Justice Cobbett had a strong view about the leave credits and

wanted it resolved.

26. Van Zyl said he was not aware that his secretary was accumulating leave credits at the time. He

agreed that the accumulation would enable secretaries to go on a protracted holiday.

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27. Judges came in during recess and work in their offices as it was more convenient. He would give

verbal instructions to his secretary. His secretary could be at home on stand by and was not

expected to put in leave.

28. The secretary‟s job was very important and it cannot be compared with that of a Registrar. He was

comfortable with the idea that a Court manager or a Registrar interfered with his secretary‟s

function.

29. The meeting held on 8 February 2008 was attended by the Judge President, Deputy Judges and 14

other Judges as well as Mr Kolosa and Ruanne David‟s. The subsequent letter by Mr Kolosa was

in breach of the decision taken at that meeting.

30. His secretary was on standby all the time. When a judge was going abroad it would be expected from

his secretary to be at the office and not to be on standby.

31. Van Zyl said he would give instruction to his secretary to perform certain duties in his absence and

would not regard it as being on standby. It was expected of her to complete the leave forms.

Secretaries would be on leave only when they had completed leave forms.

32. He understood that the agreement was that when secretaries were on standby they will not be

expected to fill in leave forms and not to be at work full time. It might be regarded as a benefit

because other secretaries did not enjoy the same practice. He became aware of the issue when

Ms Venter had raised it and asked for assistance.

33. He believed that the February 2008 meeting had resolved the dispute between the Department and

judges secretaries. He was not entirely happy and would have preferred to have sole discretion

over his secretary‟s functions.

34. Under cross examination Judge Van Zyl testified the following. He would not have instructed his

secretary to disregard regulations. The secretaries were in a sui generis position. He had seen the

Personnel Administrative Standards for the first time during the proceedings.

35. He accepted that the respondent was the employer of secretaries and judges and was responsible for

the formulation of employment relation policies. He had no knowledge of the origin of the

documents.

36. His secretary was virtually on duty 24 hour within reason or during emergencies. He accepted that

recess does not imply that secretaries were on a vacation but an adjournment.

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37. The Chief Justice Secretary correspondence refers to judges in the Appeal Court. He concurred that

the Supreme Court and the Appellate is essentially the same.

38. The months of June and December are known as recess period. Secretaries know in advance when

judges would go on leave. He held the opinion that it was up to the conscience of the secretaries to

act honestly when the judges were not at the office.

39. He denied that he had discussed the issue with his secretary. He regarded the minutes of the meeting

held in 2008 was a fair reflection. He would have had a problem if his secretary had accumulated

leave credits. He leant about it when he was an Acting Judge President.

40. He had no knowledge of a collective agreement and its objectives. The resolution taken at the

February meeting required of secretaries to complete leave and sick leave forms which was part of

a memorandum of understanding. He was not sure whether the meeting could be deemed as a

collective bargaining process.

41. The Judge President had indicated at the meeting that the minutes of the meeting would be drawn up

as well as a memorandum of understanding and could not expressly indicate if it was done.

42. Elisma Venter (Venter) testified the following. She was appointed on 7 July 1989 in accordance with

the provisions of the Public Servants Act.

43. Shortly after her appointment Judge Berman died. She then joined Judge Van Niekerk until his

retirement. In 1998 she joined Judge Griessel after his appointed as a new judge. When she

started with Judge Berman she was told he is the reporting line and accordingly carried out

instructions.

44. She was not aware of the role of the registrar and only knew that Judge Griessel was her boss. She

performed various duties such as serving coffee at the coffee club, typing and arranged his

personal business.

45. When the Judge travelled overseas he instructed her to take leave, otherwise she was mostly work in

the Court. During recess if she had completed her work, she would leave early and return the

following day or be on standby.

46. She had not put in annual leave as her judge had arranged her time schedule and worked accordingly.

She had no knowledge that she was required to actually put in leave. The

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only time she put in leave was when the judge went overseas or when her services was not

required.

47. Her working hours was from 8h30 till 16h00. With the arrival new technology such as lap top‟s she

would do the typing at home. She was not required to put in leave when she was on standby.

48. Mr Kolosa‟s letter instructed the secretaries to put in leave for December /January periods and even

during standby just before the recess period. When they were not on leave, they were required to

be in the office and any deviation from the instruction could lead to disciplinary measures being

taken against them.

49. She had complied with the instruction after she had consulted the union. Secretaries completed the

leave application forms under protest. She confirmed the written instruction from Mr Mohammed

that secretaries were required to take their leave during recess and complete the leave forms.

50. The Court Manager was required to verify and monitor whether secretaries had complied with the

instruction. Judge Van Reenen was very unhappy about the situation and wrote a letter to the

respondent.

51. Venter stated that after the February 2008 meeting standby letters were given and accepted by the

court representatives. The standby letters were for the June /July and October recess.

52. The secretaries were further told that standby arrangement will not be taken into account and the

leave applications must be done for the entire recess period. Secretaries were unhappy about the

instruction.

53. The meeting between Mr Kolosa and the secretaries held on 28 January 2009 did not resolve the

dispute and a formal grievance were lodged thereafter on the grounds that the Court Manager

(“Kolosa”) had unilaterally imposed changes to their conditions of service.

54. A further letter was written for the attention of Mr Roux and Mr Kolosa advising them that the

instruction was in breach with the resolution/memorandum taken at the February 2008 meeting.

55. The respondent responded to their grievances that no changes were effected to the conditions of

service. In their view this was contrary to the practice that they were accustomed too because

secretaries used to be at home during standby and recess periods which was no longer allowed.

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56. Venter stated that the Court Manager‟s instruction was very demoralising as it essentially meant

secretaries must be at work even if they had nothing to do. The proposal that secretaries should

work at the Magistrate Courts were not appreciated by the judges and felt uncomfortable that their

secretaries report to other superiors.

57. Her judge had agreed that she could work for an Acting judge when he presided over cases at the

Supreme Court of Appeal. Secretaries always regarded recess as a privilege and a big benefit and

most of them accepted the positions as their working environment would be more flexible.

58. Secretary‟s remuneration was very little in the beginning and they did not qualify for merit incentives.

They regarded recess as the single benefit as it attracted the secretaries to apply for the posts.

59. Under cross examination Venter testified the following. The secretaries were demoralised when

the judges‟ were not at work as they did nothing while the courts function normally during recess.

The benefit translated into time off. She agreed that there were about 70 recess days per calendar

year.

60. She conceded to the annual leave provisions in the collective agreement. They had not being working

for 44 days during recess and they were allowed to accumulate leave but were stopped. She

admitted that she had accumulated annual leave because it was a benefit.

61. Venter testified that in some instances people received amounts close to R800, 000 at retirement

which she did not approve of. She agreed even if the practice was called standby they were at

home and not on duty.

62. She agreed that an employee can only accrue leave if not on leave. Despite this proposition, she was

adamant that they were not really on leave but on standby as they could be called at any time due

to the sui generis relationship with their judges.

63. Jacobus Kruger (Kruger) testified as follows. He is employed as the Provincial Manager of PSA in

the Western Cape. The mandate of the GPSSBC is to deal with matters of mutual interests in

various departments in the public sector. The Sectorial Chambers deal specifically with matters

under its jurisdiction related to matters of interpretation of collective agreements.

64. PSCBC Resolution 7 of 2000 establishes the right to develop its own leave policies specific to the

department provided that it is in line with the authorising collective agreement. The departmental

chamber may also deal with issues related to leave.

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65. The chamber dispensation had been created to cater for various issues because of its diverse nature.

Resolution 7 of 2000 is a frame work and caters for 1, 2 million employees in the public sector.

66. The emergency medical services (EMS) are not a leave provision rather an arrangement as the

employees are required to perform their tasks in a particular manner and are subjected to a 24

hour operations. Employees falling under the essential services jurisdiction work according to a

shift roaster that determines the number of working hours.

67. A similar situation exists in the school system whereby they operate in terms of an arrangement and is

not compensated for overtime. In specific case department will receive allowances to cater for their

operational requirements.

68. Resolution 15 of 2002 provides for a number of working days for periods when schools are closed and

recess exceeds the 27 days allocated to public servants.

69. Prior to 1999 the public service was not included in the LRA and only became applicable with the

promulgation of Act 66 of 1995 and benefits and allowances were regulated by Public Service

Code which was not a collective agreement.

70. Resolution 7 of 2000 was the first collective agreement entered into between the parties affiliated to

the council that catered for leave provisions for public servants. At that time the old agreement still

refers to calendar days but was changed to working days with the introduction of the new

resolution.

71. Following the changes all leave entitlements were reduced from 120 days to 36 days over a three year

cycle. The introduction of Resolution 7 of 2000 resulted that resolution 3 of 1999 was replaced with

effect from 1 July 2000.

72. The collective agreement still refers to calendar days of which 36 days are for people with ten years‟

service and a lesser number of days for those with less than ten years‟ service.

73. The collective agreement also introduced a new dispensation of temporary incapacity leave. The new

agreement regulates the manner in which leave could be taken provided that it does not

compromise service delivery requirements of departments.

74. The new dispensation also paved the way for parties to consult on specifics in the workplace. This

established the right for a department to have further

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refinement of the collective agreement on operational requirement relevant to the workplace.

75. He became aware of the changes to the secretaries special leave arrangement when they had

approached the union for assistance. Ms Craffert and two other colleagues were aggrieved about

the instruction given to them by the Court Manager at the time. Their contention was that they were

required to put in leave if they wanted to be absent from the workplace during court recess periods.

76. In his view this instruction was in conflict with the practice at the High Court in Cape Town. The union

had communicated to the members via their bulletin about the resolution that was taken at the

GPSBC Departmental Chambers meeting on 11 September 2000 concerning the dispensation of

judge‟s secretaries.

77. PSA was not the only union represented in the Chamber but also has other member unions who had

raised the issue in the Bargaining Council. The unions were concerned about the practice that

secretaries were not required to be in the office during recess and work from home.

78. On 7 September 2007 meeting it was decided that the status quo would remain in place and that the

secretaries would not be required to be at the office during recess periods.

79. PSA always held the view that this provision was catered for in Resolution 7 of 2000 as it was a

departmental specific organisational requirement. The Court Manager‟s instruction meant that the

status quo agreed upon was terminated and the secretaries were required to complete leave forms

when they were not at their workstations.

80. The February 2008 meeting between Judges and Regional Court Manager and the Registrar was a

management meeting. The unions were not present at the meeting. The resolution taken at that

September 2006 meeting had never surfaced again.

81. Matters of mutual interest are normally negotiated at chamber level which applies to the secretary‟s

status quo. PSCBC Resolution 1 of 2007 regulates the conditions of service and the measurement

for payments of overtime in the Public Service. Judges secretaries were not paid any overtime for

their services rendered for periods more than 40 hours per week.

82. Under cross examination Kruger testified as follows. He agreed with the proposition that he has a

fair understanding of the collective bargaining environment and the procedures in the public sector

but that it was from a union perspective and not from the employer‟s perspective. He conceded

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that he was not present at meeting held on 12 April 2007 and had no knowledge who had raised

the issue but assumed that any trade union or representative could have done so.

83. Kruger also admitted that he was not in attendance at the GPSSBC Departmental Chamber meeting

held on 11 September 2007. He admitted that the information contained in the magazine was

published two months before the actual meeting took place during the feedback to members.

84. He contended that the decision of April 2007 was the same as the one in the September 2007

meeting. The decision taken at those meetings has the same status as a collective agreement.

The interim agreement taken at that meeting confirmed that the status quo of secretaries leave

arrangements will remain in place.

85. He conceded that the meeting of 5 February 2008 was not a refinement of PSCBC Resolution 7 of

2000. In his view the decision taken was a management decision that the status quo should be

retained. He admitted that the term status quo was not used in the minutes of the meeting.

86. Kruger agreed that the decision taken it could not have been a collective agreement because it would

require two parties to conclude such an agreement and is therefore not a refinement. The union‟s

instruction to the attorneys was that there was a decision taken between judges and the

department and it was their intention to ensure that the decision stands.

87. He restated that the decision taken at both April and September 2007 could not have been a

refinement of the collective agreement. The union had relied on the communication by Ms‟ Craffert

that the decision taken at the sectorial Chambers was a refinement. In his view Resolution 7 of

2000 changed the leave provisions but not the practice.

88. Kruger admitted that the evidence had established that there is no collective agreement by the

PSCBC/ GPSSBC or by a Departmental Chamber that governs the position of judge‟s secretaries

when they were on recess. Despite this the practice continued for secretaries to be at home during

recess. He contended that Resolution 7 of 2000 has everything to do with the dispute as it affects

the manner leave was taken by the judges secretaries.

89. Anna Moller testified as follows. She works as a judge secretary in Bloemfontein since 1999. She was

advised by Mr Dorwe that her work would entail more or about 24 hours over seven days a week

and during recess they are not physically off but may go home.

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90. This arrangement was in place until 2006. During December 2006 they received letters that future

leave applications must be completed if they want to go on leave. This communication had

effectively stopped the practice during recess periods. Secretaries were very unhappy but had

complied with the instruction.

91. She felt betrayed as they were not consulted about it. She is still unhappy about the instruction but

they were told that monies will be deducted from their salaries if they do not comply. Since the

decision was communicated secretaries sit in the office and drinking more coffee and doing

nothing.

92. Occasionally they worked in the circuit courts with the judges and travelled for hours. This practice

was stressful for women particularly as they are not remunerated for overtime. Before 2006 the

judges had determined their working hours.

93. Under cross examination she testified that she was required to perform work during the night

occasionally but did not work weekends. She reports for duty at 8h30 until 16H30.

94. During 2010 she worked on Sundays as part of her circuit court duties for six weeks. They earned a

small allowance of R88, 00 per day and were required to buy water and newspapers for judges

from the money. She also worked for other judges when their secretaries went on study leave.

THE RESPONDENT’S CASE

95. Christopher Conradie testifies as follows. He is in the service at the High Court in Kimberley for 31

years and 25 years as a Senior Registrar.

96. He is responsible for the placement of judges‟ secretaries in the Kimberley High Court and manages

the leave applications. Since 2001 judges secretaries are required to fill in leave application forms

during recess if they not at work.

97. Judge President Ngomo introduced the policy that secretaries must perform normal administrative

duties during recess periods. He confirmed that he had sent the email to Rodney Isaacs on 19 May

2010 , stating all the judges secretaries of this division must like all officials apply for leave , if not

they all must be at work during recess

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98. He rejected the notion that secretaries perform duties for 24 hours and their working hours are from

8h15-16h30 Monday to Fridays. The only time secretaries‟ work late is when the courts have late

sittings. They do private work for the judges and work overtime in isolated instances.

99. Secretaries are normal civil servants and are required to comply with the leave policies and procedure.

It is not part of their conditions of service to stay at home when the judges are in recess during his

25 years of employment. It is a practice that was introduce by the judges.

100. Under cross examination he testified that he started in his position in Cape Town in 1982. He

disputed that notion that that secretaries report at 9h00 and leave at 13h00. Secretaries are

required to apply for leave when they leave at 13h00 during recess and are not required to fill in

leave forms. It is a practice that was introduced by the judges to leave at 13h00.

101. In exceptional circumstances secretaries are required to work overtime without remuneration. They

are only given travel and accommodation allowances.

102. Secretaries who were appointed after 2001 were not part of previous dispensation. Judges have

discretion to grant time off to secretaries as an indulgence. Many of the appointees were new and

they were not aggrieved. The newly appointed secretaries were aware of the practice that was in

existence but understood the required conditions of service.

103. Denim Kroqwana testified as follows. He completed the B- Juris and LLB degrees respectively at

UNISA and at the University of the Western Cape. He is the Chief Registrar of the Eastern Cape

High Courts and is in charge of supervisors who supervise the judges‟ secretaries. He occupies the

position for seven years and manages four judges‟ secretaries in Bisho.

104. All secretaries are required to fill in leave forms before they go on leave in all the High Courts in

Eastern Cape, except in the case of one person. In Umtata the situation is different as they have

part heard cases. The Kimberley High Court practice of leaving at 13h00 does not exist in Bisho,

Port Elizabeth and Umtata.

105. In Grahamstown the position is different. There has been an arrangement between judges and

secretaries to put in leave for 22 or 26 days for a particular year. Previously all ten had complied

before and since 2009 only three secretaries completed the leave forms.

106. It is expected that this arbitration proceedings will bring finality to the

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matter. The Department is concerned about the situation and had placed it on the agenda for

discussion. The appointment of secretaries is the same throughout the country.

107. Under cross examination he testified the following. He has routine visits to other Courts in the

region as he is based in Umtata. Mr Kholosa is not in same position as Mr Wilson. He is on the

same level and authority as the Chief Registrar in the Western Cape.

108. He could not speak for Cape Town as the position is not same throughout the country. Secretaries

are allowed in Grahamstown to stay at home provided that they put in leave for 22 or 26 days.

109. Johanna Brink testified as follows. She is the Director in the Directorate General Benefits and is

responsible for research, development of proposals and formulation of policies on the areas of

conditions of service for about 20 years.

110. Part of her responsibilities would include obtaining mandates from the mandating committee and

provide support to the Chief Negotiator in the Public Sector Bargaining Councils. The mandating

committee consist of Cabinet Ministers which is chaired by the Minister of Public Service and

Administration.

111. The Department of Justice falls within the ambit of the General Public Sector Service Bargaining

Council. Once policies have been successfully concluded she implements and monitor it. She also

provides special advice on collective bargaining agreements and directives.

112. She explained the mandating processes as follows. It normally starts with demands by unions and

submitted to the Bargaining Council at GPSSBC or PSCBC level. This would be followed by

research and consultations as part of the mandating process until it arrives at a mandating position

which is submitted to the Chief Negotiator to engage the unions.

113. Resolution 15 of 2002 relates to secretaries and more specifically to non- teaching staff in the

education sector. She participated in the process with stake holders. Resolution 7 of 2000 as

amended by Resolution 5 of 2001 had to be changed to review the leave dispensation at schools.

Only the Chief Negotiator represents the state in negotiations concerning collective agreements.

114. A general leave dispensation would cover all types of leave while annual leave refers to the

individual leave entitlement meaning family responsibility, maternity and leave for shop stewards.

Resolution 15 of 2000 redefined Resolution 7 of 2000 and 15 of

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2001 because the categories had to be amended.

115. No application was received by PSA for the refinement for Resolution 7 of 2000 and neither was

such a request submitted to the Department of Justice. In many instances complaints were

received by employees about specific agreements. PSA had not declared a dispute of a breach of

Resolution 7 with the Respondent.

116. A refinement cannot just happen as it had to be by a demand by the unions or the employer party

on a particular matter either to cancel or negotiate new terms and conditions and if an agreement is

reached it would become a collective agreement.

117. Brink testified the following under cross examination. Employees in educational or training

institutions would have no duties when institution closed for public holidays and they are entitled to

ten working days in terms of the new agreement.

118. The second group of employees who work when the institution closes for holidays receive 27 days

in terms of the agreement. The second category of staff would be people who were appointed prior

to 1 July 1996 and qualify for 28 working days. The third category of employees would be

employees having 10 or more than 10 years receiving either 22 or 26 days.

119. The category of employees on 10 working days was due to that fact that they have the benefit of

school holidays. Despite her using the word in practice but was not really a valid practice. It was

first discussed in 1990‟s when the Department had approached her division for advice. The

practice was a contentious issue since the early 90”s.

120. Despite the introduction of Resolution 7 of 2000 the practice continued until 2008 in the Cape High

Court. The tension between staff members arose because people in the same organisation were

treated differently. An employee can only fall in one category and overlapping is not allowed.

121. There is no definition of a refinement in the Public Service regulations or in the Public Service Act

and the collective agreement is the only guide to follow. The DPSA were not required to be

involved in the judge‟s secretary‟s dispute as it was not raised by the employees or their union.

122. The difference between the educators and secretaries are that the educators had formally raised

their grievance in the department. The problem is not a chamber specific issue simply put the

department did not comply with the leave provisions.

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123. In terms of the legal frame work the only person that can determine the people‟s conditions of

service would be the Minister of Public Service and Administration. She rejected that Resolution 7

is a frame work. The only frame work that allow for the refinement of a sector is 7.1 A. The sector

must determine what the service delivery requirements are in the sector.

124. In the case of the education sector they used the particular clause to assist them in resolving the

impasse. The Departmental Chamber is different that the Sectorial Bargaining Council. The

PSCBC covers four sectors and has its own bargaining structure and deal with policy issues. In the

event where an agreement was reached in the chamber it must still be ratified in the PSSBC.

125. Applying clause 7 1 A in the context of the judges secretaries would mean an agreement must be

reached in the chamber then the GPSSBC must ratify it. Even if you develop a policy it must be

concluded as an agreement. The decision taken at the Departmental chamber on 12 December

was an interim policy and not a collective agreement.

126. It is an agreement but was not produced into writing of the chamber. The public sector conditions of

service are reduced into policy documents which are informed by a collective agreement, so if such

a practice existed it cannot be condoned as it is ultra-virus.

127. The conditions of service are equally binding on judges as it is on the secretaries reporting to them.

The nurses are public servants and covered by the same collective agreement. However nurses

receive much more annual leave as in the case of other public servant because their annual leave

entitlement was reduced into writing and re -negotiated.

128. In the present case the practice was introduced by the judges and not through policy instruments or

a collective agreement. The meeting of 5 February 2008 was a gathering of individuals and no

procedure was followed in terms of council processes and therefore that agreement has not force

and effect in law.

129. The agreement cannot be ratified as it was not agreed by the relevant stakeholders in the chamber

meetings. The decision by Kolosa was not a unilateral change to the COS as he had merely

implemented Resolution 7 of 2000.

130. Even if he had agreed to change the decision afterward he would not be applying the policy in

accordance with Resolution 7. The sea allowance policy was ratified in the PSSBC hence the

reason for its existence.

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131. Under re -examination Brink stated that she was not in attendance at the meeting held on 12 April

2007. She had no prior knowledge of it or what was discussed at the particular meeting. She was

adamant that a chamber meeting cannot conclude a collective agreement but is could start the

process subject to it be ratified by a collective agreement.

CLOSING ARGUMENT BY THE PARTIES

I have summarised the respective heads of argument as submitted by the parties and do not wish

to repeat the evidence material to this dispute as I also have the benefit of the transcripts.

THE APPLICANT’S SUBMISSION

132. The Applicant party submitted that the standby practice was a COS and was unilaterally changed

by the Respondent. In doing so the respondent argued it relied on the statutory provisions

directing leave of civil servants.

133. Resolution 7 of 2000 is a broad framework and it provides for a refinement based on service

delivery requirements. The Respondent allowed the practice to continue eight years after the

resolution was adopted. The meeting of 5 February 2008 called for a refinement of the practice.

The practice was recognised and judges could certify that secretaries were on standby.

134. The respondent was bound by the agreement of 5 February 2008. The respondent‟s argument that

Kolosa was not authorised to enter in such agreement should be rejected as he was a senior

official in the department and therefore authorise to do so.

135. It is motivated by a letter stating, changes to terms and conditions are matters of mutual interest

that is normally negotiated at chamber level. Once agreements have been reached at chamber

level it is communicated by means of resolutions and circulars.

136. An agreement reached April 2007 at the chamber level and the minutes of 11 September 2007

concerning judge‟s secretaries that the status quo must remain. Kolosa was not entitled to

determinate the practice or send the memo to the secretaries as his action was unilateral.

137. The secretaries are entitled to the standby dispensation and need to be reinstated. Resolution 7 is

a framework and allows for a refinement. The word refinement

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is not same as amendment.

138. Kruger had testified it could be within a framework of the leave dispensation which can be flexible

to deal with service delivery requirement. The Chief Justice Gorbett and Judge Van Zyl referred to

judge‟s secretaries positions as sui generis.

139. The Secretaries contended that after Resolution 7 of 2000 adopted their sui generis positions as it

was accepted and recognised as a kind of refinement.

140. It is long standing arrangement which existed before Resolution 7 of 2000 and deo facto part of

judges‟ service conditions. Kolosa was acting in breach of 7 of 2000.

141. By signing an agreement on 5 February 2008 it is acknowledge that it was not a collective

agreement but a recognised practice dealing with in as a dispute of interest.

142. The secretary‟s dispute also falls under Section 186(2) (a), the revocation of benefits. Therefore

the arbitrator has jurisdiction to deal with this matter. The Applicants rely on Section 24(4) dealing

with interpretation of the CA and on Section 64(4) dealing with unilateral change to condition of

service.

143. Resolution 3 of 1999 provides if an employer requires the employee to be available for the

performance of duty outside of her or his normal working hours. Judges expect their secretaries to

be at work over weekends in reality they will not be paid.

144. The applicants had up to December 2008 the right to be at home without having to be on leave

when they were on standby, the standby dispensation. The claim is one in law, the right to fair

labour practices. Resolution 7 was not implemented by the respondent.

145. He relied on case of SAMWU V Matshabenhg Municipality {2011} case, which support the

argument that there are terms and conditions which objectively viewed come through an employer

observing the practice for many years.

THE RESPONDENT’S SUBMISSION

146. The Respondent submitted that what the secretaries seek is an award that allows them to stay at

home in excess of 70 working days plus 26 taken out for leave. The

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Applicants have no claim to sui generis nature of their positions. Evidence was led that the

secretaries do not work 24 hours.

147. Ms Venter testified during 44 days the judges do not call on them. Judge Van Zyl said that Judges

are lazy meaning therefore secretaries will not be called upon. This cannot be justified in the public

service or in Labour legislation.

148. There is no CA or any other prescript in the public service which authorise a judge‟s secretary to

remain at home during court recess without completing leave form. That is why the applicants rely

on a refinement but there is no refinement of the resolution itself.

149. Both Venter and Kruger admitted that there is no such provision of so called standby. In terms of

Resolution 7 of 2000, the applicants are bound by Resolution 7 4.2 and subsequent collective

agreements. Should the applicants claim be granted it would constitute unfair discrimination and a

violation of Section 9 of the constitution.

150. Court interpreters are on the same level as judges‟ secretaries but they do not qualify for so called

standby. The leave dispensation is governed by Resolution 7 of 2000 as the case is for all

employees in the public sector.

151. Applicants admitted that they were not on duty prior to 2008 but they claim they were on standby.

Some secretaries had accumulated paid leave to 300 days at the end of their employment period

and the respondent had to pay out between R800, 00, up to a million rand. It is quite obvious that

you can only accumulate leave if you are not on leave hence the reason why it was taken away.

ANALYSIS OF EVIDENCE AND ARGUMENT

152. Before I proceed in dealing with the issue before me, I thought it would be appropriate to clarify

from the outset of what is expected of the arbitrator. It became apparent during the arbitration

proceedings that the applicant party had consistently raised facets to the dispute.

153. I specifically mention this in the light of the references being made to potential challenges in

respect of Section 186 and Section 64 of the LRA.

154. In considering this point, in the Court decision in Tao Ying Metal Industry (Pty) Ltd v Poole

[2007] 28 ILJ 1949(SCA) at 1954 per Nugent JA. “The task of an

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arbitrator is a demanding one. It is made more demanding by the absence of formality that

characterises the resolution of labour disputes. It is important that an arbitrator, notwithstanding the

absence of formality, ensures at the outset that the ambit of the dispute has been properly

circumcised, even if the dispute had many facets, for that defines the authority of the arbitrator has

to make an award. The authority of an arbitrator is confined to resolving the dispute that has been

submitted for resolution and an award outside that authority will be invalid.”

155. As pointed out by Mutil and Boyd in the context of commercial arbitration if an arbitrator awards on

issues which have not been left to him for decision, he commits misconduct and may be acting in

excess of jurisdiction.

156. In my view any challenge outside of the referral by the applicant party will not be dealt with as I

would act in excess of my powers and the parties may pursue such claims in the appropriate forum

in respect of any of the above challenges.

157. John Grogan in his book “Collective Employment and Labour Law 2010 version on page 132 writes

the following. The dividing line between interpretation and application disputes may not always be

absolutely clear. A dispute over the interpretation of a collective agreement exists if the parties

disagree over the meaning of a particular provision. A dispute over whether the agreement applies

to or in a particular set of facts and circumstances.

158. Brassey in employment law argues that an application of a dispute covers disputes which include

the manner in which such collective agreements should be applied. The interpretation attached in

this view is that this includes a party‟s wish to have an agreement enforced. This interpretation is

very wide and can in my view be correct where the Act does not deal with enforcing collective

agreements.

159. The above approach was also expressed in NUCW v Oranje Mynbou en Vervoer Maatskappy

Bpk [2000]2 BLLR (LC) in which Revelas held that: a dispute about the application of a collective

agreement applies to a situation where is a non-compliance with a collective agreement and one of

the parties wishes to enforce its terms.

160. In the matter of Minister of safety and Security v SSSBC and others [2010] 31ILJ 1813 (LAC)

the Labour Appeal Court dealt with the issue of whether bargaining councils have jurisdiction to

arbitrate a dispute as an “interpretation or application” dispute when in fact the interpretation /

application is not the real issue before the Court but the real issue

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is disguised as the interpretation / application of a collective agreement.

161. In the light of the above facts the true issue in dispute in the present case is not an interpretation or

application, the true issue is about the fairness of the Court Manager‟s decision when he instructed

the secretaries to comply with the collective agreement in completing leave forms. In the light facts

I have no jurisdiction to hear this dispute and the matter must be referred to the appropriate forum.

AWARD

I find that:

162. The PSCBC lacks jurisdiction to hear this dispute.

PANELLIST: Joseph Thee

ARBITRATION AWARD - PSCBC

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