PSA obo Members v Minister of Health and Others (J3106/18) [2018] ZALCJHB 345 (12 October 2018)

Principle:

The Labour Court has no jurisdiction as a court of first instance in relation to the enforcement of any obligation under the OHSA. Where a statute such as the OHSA empowers inspectors to make determinations on the extent to which an employer is in compliance with its regulatory obligations, it is not for the court to assume the function of an inspector or perform the functions of an inspector.

Facts:

The Public Servants Association (PSA) initiated proceedings in the Labour Court on behalf of its members employed by the Department of Health in the Civitas Building in Pretoria, contending that the building was unsafe. The PSA brought the application in terms of s 158(1)(b) of the LRA, which empowers the Labour Court to grant orders to compel compliance with the LRA or any other employment law.

In an application to the Labour Court, the PSA sought a final order against the Dept. of Health and the Dept. of Public Works, directing the employer in terms of s 8 of the Occupational Health and Safety Act (OHSA):

  • to provide and maintain a safe and healthy working environment;
  • to comply with recommendations by the National Institute for Occupational Health (NIOH) in respect of air quality and noise;
  • to move employees to a safer working environment free of the risks identified;

The PSA also sought orders declaring that the members' refusal to work in the building did not amount to a strike, and interdicting the employer from disciplining its members for refusing to enter the Civitas building.

The main issue to be decided by the LC was whether it had the jurisdiction to make the orders sought by the PSA. After a close analysis of s157 &158 of the LRA, together with the dispute systems of the OHSA, the LC concluded that it did not have jurisdiction in this matter to grant the order sought.

This case appears to confirm that the Labour Court does not have jurisdiction as a court of first instance to enforce any obligation under the OHSA. Where a statute such as the OHSA empowers inspectors to make determinations on the extent to which an employer is in compliance with its regulatory obligations, it is not for the Court to assume the function of an inspector or perform the functions of an inspector.

Extract from the judgment:

(Van Niekerk J)

[20]   This court has previously held in relation to the enforcement of the Basic Conditions of Employment Act (BCEA), that it should not usurp the functions of labour inspectors by granting orders that directly enforce the provisions of that statute. In Ephraim Moyo v Bull Brand Foods (2010) 31 ILJ 951 (LC), the court held that this court's intervention as a court of first instance to enforce the minimum standard established by the BCEA would undermine the system of enforcement established by chapter 10 of that statute, in particular, the labour inspectorate. The court observed that its general supervisory function would be eroded should it grant what would amount to compliance orders. For the same reasons, in my view, while acknowledging the functional differences between the BCEA and the OHSA, s 158 (1) (b) should not be construed so as to read in jurisdiction to enforce the OHSA in the first instance.

[21]   In short, neither the plain wording of s 158 (1) (b) nor its obvious purpose indicate that it is a jurisdiction-conferring provision. In the words of Merafong, it is a mere empowerment provision rather than a source of jurisdiction.

[22]   The applicant's counsel submitted that if sections 157 and 158 were to be read restrictively, the applicant's members would be left without a remedy to address their urgent concern regarding their work environment. This is not a basis which renders it competent for this court to intervene. The OHSA establishes its own remedies, which are available to the applicant and its members.

[23]   To the extent that the applicant relies on s 157 (2) of the LRA and submits that its complaint implicates a Chapter 2 right in the Constitution, (in the form of a right to an environment that is not harmful to the health or the well-being of its members), this is not a claim foreshadowed by the founding affidavit. The founding affidavit states no more than that the applicant's members have a clear right to work in an environment that is not harmful to their health and well-being, and that compelling them to continue working in an environment that is harmful to their health and well-being is a violation of that right. The applicant does not identify the fundamental right on which it relies with any greater specificity; it is not clear, for example, whether the right relied on is that established by s 24 (Environment), or s 23 (Labour relations), or both. This is not something I need attempt to discern from the founding affidavit - the authorities are clear. An applicant is not entitled to seek the direct enforcement of a fundamental right; its claim must necessarily be brought in terms of the legislation that gives expression to the right (in this case, the OHSA) - see Motor Industry Staff Association v Macun NO & others (supra). To the extent then that the applicant relies on s 157 (2) directly to enforce a fundamental right, the application must fail.

[24]   In the case of the third and fourth respondents, there is a further objection to jurisdiction which, in my view, stands to be upheld. It is not disputed that there is no employment relationship between the applicant's members and either the third or fourth respondents. The third respondent is no more than the owner and landlord of the Civitas building, It is described in the founding affidavit as 'the custodian and manager of national governments' (sic) fixed assets including the determination of accommodation requirements, rendering expert built environment services to other departments, the acquisition, maintenance and disposal of such assets'. The third and fourth respondents have not been joined for convenience - the applicant specifically seek substantial relief against them, based on s 8 of the OHSA. Since the third respondent is not the employer of the applicant's members, it has no obligations to them in terms of s 8 of the OHSA. Those obligations are established as between an employer and its employees. The third and fourth respondents have no relationship whatsoever with the members of the applicant, either in contract or statute. I fail to appreciate how in these circumstances it can be said that this court has jurisdiction to grant the relief sought by the applicant against the third and fourth respondents; they are not an 'employer' for the purposes of s 8 of the OHSA and there is no matter that arises between them and the applicant's members that is required to be determined either by the LRA or any other law.

[25]   The consequence of the findings reflected above is that this court has no jurisdiction to grant the order is contemplated in paragraphs 1.2 to 1.4 of the notice of motion, all of which make specific reference to s 8 of the OHSA or to the reports whose recommendations the applicants seek in effect to enforce. The relief contemplated in prayer as 1.5 and 1.6 (respectively that the applicant's members' refusal to work is not a strike and that the first and second respondents be interdicted from taking any disciplinary action on account of any refusal to enter the Civitas building), is dependent on the court having the necessary jurisdiction to enforce s 8 of the OHSA in the terms sought by the applicant. In summary, the court has no jurisdiction to grant any of the relief sought by the applicant. The application accordingly stands to be dismissed.