Employment law update – Bargaining Council varying the time period, as set out in the LRA, in which to refer disputes – lawful or not?

September 1st, 2019

Appels v Education Labour Relations Council and Others (LAC) (unreported case no JA19/18, 10-7-2019) (Waglay JP with Jappie and Coppin JJA concurring).

Section 191(1)(b)(ii) of the Labour Relations Act 66 of 1995 (LRA) states that an employee has 90 days in which to refer an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining council. The question before the Labour Appeal Court (LAC) was whether parties to a bargaining council could conclude a collective agreement, which reduced the 90-day period in which to refer an unfair labour practice dispute, to a 30-day period.

Having unsuccessfully applied for the post of a principal at a particular school, the appellant referred an unfair labour practice dispute to the first respondent, the Education Labour Relations Council (ELRC).

The ELRC is a bargaining council established in terms of the LRA and has jurisdiction over educators in the public sector. Therefore, when a public sector teacher is dismissed or alleges an unfair labour practice, their disputes are referred to and heard at the ELRC.

The appellant’s referral was made 30 days after the decision not to promote him was taken, but before the expiry of the 90-day period.

On the fact that the ELRC’s constitution (which is a collective agreement as defined in the LRA) required an employee to refer an unfair labour practice disputes within 30 days of the act or omission; the ELRC directed the appellant to file an application to condone the late filling of his dispute. The appellant refused to do so and turned to the court for an order declaring the 30-day period in the ELRC’s constitution, of no force and effect as the bargaining council could not vary the time periods as set out in the LRA.

The Labour Court dismissed the application, finding that –

  • the LRA did not, directly or indirectly, prevent a bargaining council from varying the time limits set out in the LRA; and
  • the LRA empowered a bargaining council to establish its own procedures in respect of resolving disputes referred to it.

On appeal, the LAC focussed on the tension between, s 191(1)(b)(ii) of the LRA (which stipulates a 90-day period in which to refer an unfair labour practice dispute) and s 51(9)(a) (which empowers a bargaining council to develop procedures to resolve disputes).

The appellant argued that there was a conflict between the ELRC’s constitution and the LRA. This conflict, according to the appellant, should be resolved on the basis that the ELRC’s constitution is subordinate legislation when lined up against the LRA. Therefore, subordinate legislation cannot amend or alter any right as contained in the empowering legislation, that being the LRA in casu. On this understanding, the appellant sought an order declaring clause 9.1.3 of the ELRC’s constitution – which provides for the 30-day period – unlawful.

The ELRC, in opposing the application, sought to distinguish between a right and a procedure to enforce that right. The time periods set out in the LRA are procedural issues and not a substantive right and therefore, in keeping with
s 51(9)(a), the ELRC has a right to determine its own procedures. In explaining the rational for reducing the 90-day
period to 30 days, the ELRC argued that it was in the best interest of learners and the Department of Education that educators’ disputes be resolved expeditiously so that vacancies are not left open pending the finalisation of promotion disputes.

Assessing both arguments, the LAC held:

‘Since subordinate legislation is always subject to empowering legislation, it cannot take away any rights entrenched in the empowering legislation. A distinction must, however, be drawn between a right and the process to enforce that right. The substantive right that is of relevance in this matter that is guaranteed by the LRA and which cannot be compromised by the subordinated legislation is the right not to be a victim of an unfair labour practice. This is guaranteed by the Constitution of the ELRC. The issue of time limits relates to the process. While it is correct that the LRA provides that disputes about unfair labour practice must be referred to a bargaining council which has jurisdiction to entertain the dispute “within 90 days…”, this, in my view, would apply where the bargaining council has not itself provided a procedure which has to be followed to refer the unfair labour practice to be determined by it.

The LRA specifically provides in s 51(9)(a) that the bargaining council may by collective agreement establish the procedure to resolve any dispute. What this section contemplates is that there has to be a collective agreement which sets out the procedure to be followed in resolving a dispute, but more than that, implicit in this section is the recognition that procedures may differ between councils and between the CCMA and councils and that councils must put into place procedures that will best suit the sector it serves while giving effect to the principal objects of the LRA which is to resolve disputes effectively, efficiently and swiftly and do this without compromising the rights enshrined in the LRA’.

The court held further that by reducing the time period as set out in the LRA, the ELRC did not infringe on the appellant’s right to have his dispute heard. The ELRC’s reasons to introduce a 30-day period in which to refer such disputes was in response to a need to expedite the resolution of disputes in the best interest of all stakeholders.

The court found the ELRC had not acted ultra vires and dismissed the appeal with no orders as to costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

 This article was first published in De Rebus in 2019 (Sept) DR 29.