Consenting to jurisdiction: Does not confer power

MEC of the Western Cape Provincial Government Health Department v Coetzee (CA3/2011) [2015] ZALAC 35; [2015] 11 BLLR 1108; (2015) ILJ 3010 (LAC) (24 August 2015) per Coppin JA [Tlaletsi DJP and Ndlovu JA concurring]

The Labour Appeal Court allowed the appeal and set aside the Labour Court orders of Cheadle AJ and Rabkin-Naicker J and replaced them with

“No order is made in respect of the applicants’ claim and no costs order is made.”

LAC Summary:

Main dispute about interpretation and application of collective agreement- Labour Court not empowered to sit as arbitrator in terms of section 158(2)(b) of the Labour Relations Act- where matter had to be referred to conciliation (arbitration) and a party, deliberately and with knowledge of such fact, nevertheless, does not refer the matter to the appropriate forum for arbitration, but brings the claim directly to the Labour Court and requests the court to sit as arbitrator .

The parties’ consent does not give the Labour Court the power or confer on it the jurisdiction to sit as arbitrator in the circumstances – sections 77(3) and 77A of the Basic Conditions of Employment Act do not give the Labour Court the jurisdiction or the power to resolve that dispute.

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GilesFiles on September 4, 2015 at 6:03 pm

Extract from Prof du Toit’s latest Weekly Comment Once again the question of jurisdiction in IR Network published on-line by LexisNexis [subscription required]

Thus, the contractual form in which the respondents might frame their case cannot take away the fact that it was entirely about the interpretation of the underlying collective agreement. Nor can the parties “consent” to turn the actual dispute into an aspect of an otherwise non-existent contractual dispute and thereby empower the Labour Court to resolve it. Put differently, tribunals must always look at substance rather than form and, in cases where the form of a claim is manifestly artificial, it would defeat the purpose of the law to treat it as sacrosanct.

The proper course, therefore, would have been to take the original ruling on review and, based on the outcome, decide on the best course of action. To do so at this stage would involve seeking condonation for some nine years’ delay in making the review application. But that is the course envisaged by the LRA, which once again underlines the importance of thinking through the nature of a claim in order to place it on firm jurisdictional foundations.

Does this elevate procedural requirements unduly or undermine the LRA’s purpose of effective and expedient dispute resolution, and should the relevant provisions be interpreted more broadly rather than strictly in order to avoid delaying an outcome even further? This question will always be considered when issues such as the present one come up. The principle implicit in this judgment is that, where the law is clear, parties who fail to observe jurisdictional rules design[ed] to promote effective dispute resolution do so at their peril. But each case must be decided on its merits.

GilesFiles on October 3, 2015 at 3:08 pm

Reported [2015] 11 BLLR 1108; (2015) ILJ 3010 (LAC)
BLLR headnote:
Collective agreement – Interpretation and application – Employees and employer agreeing that Labour Court should arbitrate dispute concerning interpretation and application of collective agreement under section 158(2)(b) of LRA – Court lacking jurisdiction to interpret and apply collective agreement under LRA or BCEA even with parties’ consent.

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Consenting to jurisdiction: Does not confer power

LAC Summary:

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