Article 76/2022

Review of bargaining council exemption appeal authority

In terms of s158(1)(g) of the LRA, subject to s145 of the LRA, the labour court has the power to review the purported performance of any functions provided for in the LRA on any grounds that are permissible in law.  In terms of s30(1)(k) of the LRA, the parties to a bargaining council are specifically mandated to include in a collective agreement an exemption procedure.  What is the viewpoint of the labour appeal court as to whether or not the workings of such exemption body are subject to the review jurisdiction of the labour court in terms of s158(1)(g) of the LRA?

Are the decisions of domestic tribunals, such as exemption appeal authorities of bargaining councils, subject to review on common law grounds?

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In Golden Arrow Bus Services (Pty) Ltd v SA Road Passenger Bargaining Council and Others (2021) 32 SALLR 18 (LAC); (2021) 42 ILJ 1446 (LAC), the labour appeal court adopted the following approach:

  • in terms of s158(1)(g) of the LRA, subject to s145 of the LRA, the labour court has the power to review the purported performance of any function provided for in the LRA on any ground permissible in law
  • in terms of s158(1)(j) of the LRA, the labour court has the power to deal with all matters necessary or incidental to performing its functions in terms of the LRA or any other law
  • s30(1)(k) of the LRA expressly provides for the inclusion of exemption procedures from collective agreements concluded at bargaining council level – it, therefore, follows that the LRA legally mandates every bargaining council to provide a procedure for exemption.  This constitutes performance of a function provided for in the LRA and, therefore, in terms of s158(1)(g), the labour court has jurisdiction to determine the legality or otherwise of such mandated procedure
  • it is irrelevant whether the decision of an exemption panel constitutes administrative action as defined in PAJA, seeing that the decisions of domestic tribunals may be subject to review on common law grounds – this position had been made clear since the decision in Turner v Jockey Club of SA 1974 (3) SA 633 (A)
  • the court, in Turner, went on to hold that, where the decision of a tribunal is vitiated by a disregard for the principles of natural justice, the matter cannot be corrected by the appeal proceedings before a higher tribunal but only by way of a complete rehearing of the matter de novo
  • of equal relevance to this issue is the decision in Hendricks v Overstrand Municipality [2014] 12 BLLR 1170 (LAC), where the labour appeal court recognised the broad powers of review which had been conferred, particularly in terms of s158(1)(h) and, by extension, by s158(1)(g) of the LRA
  • Murphy AJA, in a carefully considered judgment, held, at paragraph [21], that there is, strictly speaking, no need to classify the decision as administrative action in terms of PAJA before a review will be competent under s158(1)(h) of the LRA. This provision does not say that the labour court may review decisions of the state acting as employer on the grounds of review applicable to administrative action under PAJA.  It does say that the labour court may do so on any grounds “permissible in law”
  • review under PAJA is only one kind of administrative law of review. Exercises of the public power are also reviewable on constitutional grounds of legality and rationality
  • Murphy AJA then went on to say that the submission by the appellant, that review should be excluded because of the contractual arrangement and the private nature of the powers, was not well founded. The judicial review of contractual disciplinary proceedings is permitted in our law. Consequently, the application for review was permitted on these grounds which are ‘permissible in law’ as contemplated in s158(1)(h) of the LRA
  • it did not appear to the labour appeal court that any justifiable distinction can be drawn between a dispute dealing with the decision of an appeal body concerning an exemption application and a disciplinary hearing, as was the case which confronted the court in Hendricks.  Hence, the dicta in Hendriks are relevant to the disposition of the present appeal

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.