From the previous articles we’ve compiled this year, you would have gleaned, by now, that it is our viewpoint that s24 of the LRA only governs disputes about the interpretation or application of plant level collective agreements – and does not cover enforcement of such plant level collective agreements. We have also told you that, should the amendment to s23 of the LRA go through, then the jurisdiction of the CCMA will be extended to the enforcement of such plant level collective agreements.
Also, in previous articles compiled by us, we have expressed the view that there is no period prescribing the time within which an interpretation or application dispute of a plant level collective agreement should be referred to the CCMA – therefore, a reasonable time period, based on s191(1) of the LRA, is applicable. From previous articles compiled by us, you will also have gleaned our viewpoint that, currently, there is no provision in the LRA granting the CCMA jurisdiction dealing with condonation applications brought in respect of interpretation or application disputes relating to plant level collective agreements, where such disputes have been referred to the CCMA outside of a reasonable time period.
On the other hand, this article deals with sectoral level collective agreements and attempts to provide some insight into the following burning questions:
- what is the status of a compliance order?
- what is the process to be followed when the enforcement of sectoral collective agreements is sought by bargaining councils?
- what is the time period applicable within which such enforcement is to be sought of sectoral collective agreements by bargaining councils?
- what is the time period to be applied when the LRA is silent?
- on what basis can condonation be granted for the late institution of a claim, or the late issuance of a compliance order?
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Status of a compliance order
- Despite any other provision in the LRA, a bargaining council may monitor and enforce compliance with its collective agreements in terms of s33A of the LRA, or a collective agreement concluded by the parties to the council.
- In terms of s33A(3) of the LRA, a collective agreement may authorise a designated agent appointed in terms of s33 of the LRA to issue a compliance order requiring any person bound by that collective agreement to comply with the collective agreement within a specified period.
- A compliance order is often a claim for payment or specific performance and, therefore, a delay in issuing a compliance order is assessed from the date when the claim allegedly fell due and not from the time when the demand is made in terms of such compliance order.
- In NBCCMI (Cape) v J n’ B Sportswear CC and Another [2011] 8 BLR 756 (LC), at para [38], the following was said as the status of a compliance order: ‘At most a compliance order can be regarded as a demand for payment’.
The process to be followed when the enforcement of sectoral collective agreements is sought by bargaining councils
- Section 33A of the LRA permits the enforcement of collective agreements by means of an arbitration process by an arbitrator appointed by the relevant bargaining council.
- In terms of s33A(4)(a), the bargaining council may refer any unresolved dispute concerning the compliance of a collective agreement to the aforesaid arbitration process.
- In line with the interpretation approach referred to in previous articles as formulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (Endumeni Municipality) and consistently followed subsequently by our constitutional court, the following is submitted: a bargaining council is not permitted to merely set down an unresolved dispute concerning the enforcement of collective agreements
- it is a specific statutory requirement that, before the aforesaid matter may be set down, it must be referred to arbitration – in many instances, the above does not take place
What is the time period within which such enforcement is to be sought of sectoral collective agreements by bargaining councils?
- A perusal of s33A indicates the absence of any statutorily described time period.
What is the time period to be applied in the above instance, seeing that the LRA is silent on this issue?
- In terms of s70 of the BCEA, a labour inspector may not issue a compliance order in respect of any amount payable to an employee as a result of the failure to comply with the provision of the BCEA, or the National Minimum Wage Act, if, inter alia, that amount has been made payable by the employer to the employee for longer than 36 months before the date on which a complaint was made to the labour inspector, or, alternatively, if no complaint was made, the date on which a labour inspector first endeavoured to secure a written undertaking by the employer in terms of s68 of the BCEA, or issued a compliance order in terms of s69 of the BCEA.
- From the above, it is clear that such s70 of the BCEA only applies under the following circumstances:
- in respect of an amount due and not for specific performance
- such amount must be due in terms of the BCEA, or the National Minimum Wage Act, and there is no reference to the LRA
- amongst others, a compliance order cannot be issued if the amount had been made payable by the employer to the employee for longer than 36 months before the date on which a complaint was made to a labour inspector (appointed in terms of the BCEA) and, obviously, not a designated agent appointed in terms of the LRA, or, alternatively, if no such complaint was made, the day on which the labour inspector (so appointed in terms of the BCEA) first endeavoured to procure a written undertaking by the employer to issue a compliance order in terms of the BCEA and not act in terms of the LRA
- In short, if a bargaining council attempts to rely on the aforesaid s70 of the BCEA in order to establish a 36-month period within which to refer a matter to arbitration, calculated from the issuing of a compliance order by a designated agent, such approach will be incorrect.
- It is trite that labour disputes must be resolved expeditiously and this was confirmed by the labour appeal court in Hospersa obo Tshambi v Department of Health, KZN [2016] 7 BLLR 649 (LAC) (Tshambi), where, at para [32], the following was said: ‘The absence of a prescribed period does not automatically license a longer period than is the norm for other labour disputes to be referred. In labour disputes, expedition is the watchword, not because that is simply a good idea, but because the prejudice of delay in matters concerning employment often is not capable of remedial action.’
- Tshambi was applied by the labour appeal court in Member of the Executive Council: Police, Roads and Transport (Free State Provincial Government) v Public Service Co-Ordinating Bargaining Council and Others (2022) 43 ILJ 1628 (LAC) (see, further, MEC for Health, KwaZulu-Natal v King (Case No D2110/18)).
- As already expressed in previous articles, it is suggested that the yardstick to test whether or not a referral to the bargaining council has occurred within a reasonable time, with reference to s191(1) of the LRA, should be the period of 90 days – and, furthermore, the period of such 90 days is to be calculated not from the time when a demand is made in terms of a compliance order, but from the time when the claim allegedly fell due.
On what basis can condonation be granted for the late referral of a claim, or the late issuing of a compliance order?
- In terms of s191(2) of the LRA, the CCMA or bargaining council may condone, on good cause shown, the late referral of a dispute concerning a dismissal or an unfair labour practice.
- In terms of s191(11)(b) of the LRA, the labour court may condone the late referral of disputes on good cause shown.
- The short truth is, unlike in the above two circumstances, that there is no provision in the LRA that allows a bargaining council or, for that matter, the labour court to grant condonation for the late issuance of a compliance order (ito s33A(3), or the late institution of a claim (ito s33A(4)(a)).
- The labour appeal court, in Queenstown Fuel Distributors CC v J Labuschagne and Others (PA3/99) [1999] ZALC 24 (3 November 1999), at para [5], stated the following: ‘Without having expressly or implicitly been given the power to do so, a court cannot forgive non-compliance with a statutory enactment.’
- In conclusion: a bargaining council lacks the jurisdiction to grant condonation for the late issuing of a compliance order, or the late institution of enforcement proceedings – and how do you determine what is late? Carefully study this article and the previous couple of articles.
