Home | News | CTA WINS TRADING ACCOUNT CASE

CTA WINS TRADING ACCOUNT CASE

24/09/2020 01:27:00 BY MBONGISENI NDZIMANDZE

Font size:

MBABANE - Employees of CTA yesterday emerged victorious in their battle against government.

This is because the Industrial Court yesterday delivered a judgment wherein it, among other things, stayed the operation of Circular No. 1 of 2020/21, pending consultation with the union representing the workers.

The circular was issued by the Principal Secretary (PS) in the Ministry of Public Works and Transport, Khangeziwe Mabuza, allegedly without prior consultation with the union as per the Recognition Agreement.

Acting Industrial Court Judge Velaphi Dlamini also ordered government to consult with the workers within 14 days on the proposed changes that the circular sought to introduce.

“The parties are directed to consult on the CTA Transformation Road map and such consultation should commence within three months,” ordered the court.

In essence, this means that pending consultations with the CTA workers through their union, the Trading Account which government sought to close through the circular is expected to continue being operational.

The court found that the union or workers were not consulted before the circular was issued and, therefore, the directive was unlawful.

Through their union NAPSAWU, the employees had filed an urgent application seeking orders staying the operation of Circular No.1 of 2020/21 which was issued by government. The Circular closed the Trading Account and introduced new work practices at the Central Transport Administration (CTA).

Failure

The basis of the application was government’s failure to consult the union before implementing the circular and its contravention of the Central Transport Organisation Act of 2013.

NAPSAWU is the National Public Service and Allied Workers Union.

The respondents in the matter are PS Mabuza, PS in the Ministry of Public Service, PS in the Ministry of Finance, the accountant general, Treasury and Store Department, Under Secretary in the Civil Service Commission and the attorney general. Government had argued that the closure of the Trading Account and reorganisation of the workplace constituted administrative action and a management prerogative which did not require consultation of the union or workers.

The court said in its view, consultation ensured the smooth compliance with the changes proposed, which resulted in harmonious industrial relations.

“There is no doubt that the changes introduced by the circular were quite significant. The court also holds that the dominant reason for the introduction of the circular was to reorganise the workplace to ensure that costs were contained; consequently a policy decision was taken by government,” said the acting judge.

He said in as much as the applicant (union) submitted that the closure of the Trading Account had resulted in the accounts, fuel and maintenance section at CTA being deprived of working tools, this was refuted by government.

“In the court’s view, the applicant’s members have been deprived of working tools or are not the decisive factor.

Answered

“The question that has to be answered is whether the reorganisation and work practices that were introduced are sufficiently significant to warrant consultation,” stated Acting Judge Dlamini.

He highlighted that in terms of the circular, the CTA’s independent status was revoked; it was now a fully fledged department with principal secretary in the Ministry of Public Works and Transport assuming control of its operations.

According to the court, new methods of offering its (CTA) services to the other government ministries and departments had been introduced.

“The circular also contemplates introducing more operational guidelines and a new fuel system, for example,” observed the court. The court said while it agreed with government that the introduction and implementation of the circular was an administrative act to the extent that it was a decision implemented by public authority, it held the view that it was not an exclusively administrative act. Acting Judge Dlamini found that it was also a policy issue arising between an employer and its employees or their directly recognised representatives. “In any event, when respondents concluded the Recognition Agreement, it derogated the exercise of its administrative authority,” reads part of the judgment.

Acting Judge Dlamini said the contention that the respondents had the right to disregard the provisions of the Recognition Agreement because its enforcement had the effect of resuscitating a repealed law, which created inroads into the executive’s prerogative and undermined the separation of powers, was untenable.

Swiftly

It was the court’s finding that government did not move swiftly or within a reasonable time to close down the Trading Account after the enactment of the CTOA. The court’s view was that, the repeal of the Regulations of 1975 was an ancillary reason in the introduction of the circular.

However, government, through the office of the attorney general, yesterday filed a notice to appeal the judgment. The State feels that the court misdirected itself in its findings as NAPSAWU allegedly approached the court with dirty hands.

The genesis of the matter is that in August 2013, the Central Transport Organisation Act 13/2013 (CTOA) was promulgated. The CTOA established an organisation known as the Central Transport Organisation (CTO), a body corporate and a category A public enterprise. The CTOA repealed the Regulations of 1975. Notwithstanding the promulgation of the CTOA and repeal of the Regulations of 1975, the CTA had not been transformed into a parastatal, but continued to operate a Trading Account, seven years after the repeal of the regulations.

The union contended the respondents failure to consult it prior to issuing the circular breached Clause 15 of the Recognition Agreement, which provided for its consultation. The union alleged that in November 2019, the respondents commenced informal engagements with its shop stewards on the transformation of the CTA, in contravention of the parties’ Recognition Agreement.

The Industrial Court previously issued an interim order and government swiftly moved an application for the stay of execution.

In the application, Minister of Finance Neal Rijkenberg submitted that government had moved an application which was to be heard on August 18, 2020.

According to the minister, the matter could not proceed as the court informed the parties that it did not form a quorum since one member was engaged on another matter for seven working days. He averred that the applicant (government) was of the view that the stay of execution order was unnecessary considering that the rescission application ought to have been dealt with and disposed of on an urgent basis.

Minister Rijkenberg narrated that when the matter was called on August 18, 2020, the court informed government’s legal representatives of the unfortunate situation of not proceeding with the application. According to the minister, the court informed the applicant that the matter was being postponed to August 26, 2020 for a hearing of both the rescission and the main application. He pointed out that the court further directed that government should comply with the interim order, the same order which it (government) sought to be rescinded.

“It is on this strength of the unlikely events that government now seeks the stay of the execution of the interim order issued on August 14, 2020,” submitted the minister.

He contended that government had a clear right to be granted the stay of execution of the order in that it had direct and substantial interest in the outcome of the matter.

The minister further argued that the balance of convenience clearly favoured government to be granted the stay of execution of the interim order as it filed a rescission application on August 17, 2020. He went on to tell the court that if the order for the stay of execution was not granted, it would basically mean the rescission application would be academic.

Suffer

“Thirdly, I state that government will suffer irreparable harm if it is not granted the stay of execution order thus grave justice will result more so because the interim order was erroneously granted,” argued Rijkenberg.

NAPSAWU had submitted that it wanted the court to declare the circular as unlawful and contrary to the Central Transport Organisation (CTO) Act No.13 of 2013 and to be of no force or effect from the date of the order of the court.

Appearing for the union was Meluleki Ndlangmandla of MLK Ndlangamandla Attorneys while representing the respondents was Assistant Attorney General Mndeni Vilkati and Senior Crown Counsel Vikinduku Manana.