Court dismisses application on RFM allowances

MBABANE – The Industrial Court has dismissed MAWU’s application to stop the RFM Hospital from capping medical staff’s on-call allowances at 108 hours per month.

Judge Mzikayise Motsa said the matter was improperly before the court and consequently dismissed the application that was filed by the Medical and Allied Workers Union (MAWU).

The union also wanted the court to order the hospital to consult its members genuinely about the implementation of the policy to cap the on-call allowances at 108 hours and compensate for the excess hours by taking days off.

The implementation of the policy, according to the Raleigh Fitkin Memorial (RFM) Hospital, was to deal with the financial crisis faced by the Eswatini Nazarene Health Institutions (ENHI) and to find optimal solutions.

During the matter, the Acting Chief Executive Officer of the hospital, Dr Raymond Bitchong, told the court that the RFM Hospital was technically insolvent.

Judge Motsa stated that while preparing the judgment, he learnt that MAWU’s attorney, Sipho ‘SC’ Simelane had passed away. “May his soul rest in peace,” said the judge.

According to Judge Motsa, the dispute before the court did not go through the full throttle of the peremptory requirements of Section 82 (7) of the Industrial Relations Act (IRA), 2000.

The judge said it followed, therefore, that in the context of the provisions of Section 82 (7) of the IRA, it did not lie within the powers of the commissioner of Labour to recommend in his report, as he had purported to do, that MAWU could petition the court for the determination of the dispute.

Intervene

This matter, according to the court, was, therefore, not properly before the court.

Section 82 (2) of the IRA provides that: “The commissioner of Labour may intervene at any time before a dispute is reported under Section 76.” Section 76 refers to disputes reported under the auspices of CMAC and not to the commissioner of Labour.

Judge Motsa stated that having opted for the intervention of the commissioner of Labour in terms of Section 82 of the Act, MAWU ought to have fully complied with the dispute regulatory framework laid down under Section 76, read in conjunction with Section 82 (7) of the Industrial Relations Act of 2000 (as amended) before approaching the court.

It was contended for MAWU that Section 82 (7) of the IRA applied only if a dispute had been reported under Section 76 of the same Act.

The union argued that the powers of the commissioner of Labour in terms of the provisions of Section 82 (7) of the IRA only kicked in where there had been a dispute reported in terms of Section 76 of the Act.

It was submitted for MAWU that since the commissioner of Labour’s intervention came before a dispute was reported under Section 76, when he failed to resolve the dispute it was deemed to be unresolved and it may then be reported under Section 76 of the IRA.

MAWU also submitted that the present dispute was not reported under Section 76 and in the absence of a report of dispute in terms of Section 76; the provisions of Section 82(7) did not apply to this dispute.

The union also argued that there was nothing wrong with the commissioner of Labour’s recommendation that it (the union) may report the dispute at CMAC for the determination of the matter.

The court agreed with the submissions of MAWU’s counsel that there was nothing wrong with the commissioner of Labour’s recommendation that the union may report the dispute at CMAC for the determination of the matter.

“However, we completely disagree with counsel’s submission that the powers of the commissioner of Labour in terms of the provisions of Section 82 (7) of the IRA only kick in where there has been a dispute reported in terms of Section 76 of the Act,” said the judge.

He also said it was not in dispute that the commissioner of Labour intervened in the present dispute before it was reported to CMAC in accordance with the provisions of Section 76.

Agree

Further, Judge Motsa pointed out that the court could not agree more with the hospital’s counsel that MAWU had inappropriately steamrolled this dispute into the court. Judge Motsa said this was done to circumvent the processes and procedures as laid down in Section 82 (7) of the IRA.

“It is indeed inescapable in the context of Section 82 that when the commissioner of Labour intervenes and fails to find a resolution to the dispute, he can only recommend that the dispute be reported to CMAC at the instance of any of the parties. That did not happen in this case.

“We do not agree with the applicant’s counsel that in the context of a matter emanating from the provisions of Section 82 of the IRA, it remains within a party’s right to willy-nilly approach the Industrial Court for the determination of the dispute if the dispute remains unresolved after the completion of Commissioner of Labour’s intervention.

“Section 82 (7) spells out the procedure, to wit; that a party must report a dispute in terms of Section 76 and CMAC will make the appropriate determination regarding the need for conciliation of the matter or otherwise issue a certificate, if need be.

“It is, therefore, incorrect as contended for the applicant that there are no proper procedures spelt out in Section 82 of the IRA on how to deal with a matter after the commissioner of Labour has failed to resolve a dispute,” explained the judge.

Judge Motsa said the hospital’s counsel could not be faulted and was spot-on in his submission that the commissioner of Labour had no power within his mandate in the context of Section 82 to make the recommendation that the union may petition the court for the determination of the matter.