LAC summary: Demarcation disputes- NEDLAC empowered by the LRA to be consulted in demarcation disputes- s 62(9) of the LRA requires a commissioner to consult with NEDLAC before making an award- commissioner sending draft award to NEDLAC- Commissioner revising final award in light with NEDLAC comments- no obligation on the commissioner to have parties to comment on NEDLAC views- Commissioner not abdicating his function by accepting NEDLAC comments.  Commissioner finding that first respondent not falling within the jurisdiction of the SALGBC.  Commissioner applying his mind to the evidence before him.

South African Municipal Workers Union v Syntell (Pty) Ltd and Others (CA 3/2013) [2014] ZALAC 18 (27 May 2014)

Coram: Davis JA, Molemela and Sutherland AJJA

Heard: 12 March 2014    Delivered: 27 May 2014

Appeal disallowed with costs and award reasonable and Labour Court judgment upheld.

Introduction

[1] This case originated in a dispute about whether or not the activities of the first respondent (Syntell) render it subject to the jurisdiction of the South African Local Government Bargaining Council (SALGBC) on account of it being allegedly associated with its employees in a Local Government Undertaking (LGU).  The appellant (SAMWU) caused a hearing to be held in terms of section 62 of the Labour Relations Act 66 of 1995 (LRA), which section regulates demarcation disputes, in order to determine the controversy.  The proceedings were conducted before the third respondent (The Commissioner).

[2] The Commissioner consulted the National Economic Development and Labour Council (NEDLAC), as he was obliged to do, sending to it a draft award declaring Syntell to fall within a LGU, but after the consultation, he changed the award to declare that Syntell was not engaged in a LGU.  That decision was taken on review.  The review application was dismissed.  This appeal is against that decision.

[3] Ultimately the critical question is whether the Commissioner rendered an award that was reasonable in relation to the evidence before him.

The review was conducted pursuant to the powers of the Labour Court in terms of Section 158 of the LRA.  (Coin Security v CCMA (2005) 26 ILJ 849 (LC) at [40])

[4] The following issues anterior to that question were posed both before the court a quo and this Court:

4.1.  Did the Commissioner commit a process-related error by failing to give the parties the benefit of a hearing on the views expressed by NEDLAC to the Commissioner, which views were solicited after the conclusion of the proceedings, pursuant to the obligation on the Commissioner to consult with NEDLAC as contemplated in section 62(9) of the LRA?

4.2.  Did the Commissioner commit a process-related error by changing his initial view and adopting a contrary view to conform with the view as expressed by NEDLAC, thereby delegating his function to NEDLAC?

4.3.  Did the Commissioner, in deciding that Syntell was not engaged with its employees in the Local Government Undertaking, fail to properly apply his mind to all the relevant evidence and to the relevant law?

The answer to these questions depends on an examination of the facts of this dispute.