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[2010] ZALCJHB 363
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POPCRU v Minister of Correctional Services (J1794/2010) [2010] ZALCJHB 363 (10 September 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: J1794/2010
In
the matter between:
POPCRU
Applicant
and
THE
MINISTER OF CORRECTIONAL
SERVICES Respondent
JUDGMENT
FRANCIS
J
1.
The applicant, the Police and Prisons Civil Rights Union (POPCRU), on
behalf of and in the interest of all its affected members
in Kwa-Zulu
Natal (KZN), brought an urgent application to interdict and restrain
the Department of Correctional Services (the department)
from
continuing to implement a shift system that requires employees to
work a 10 hour a day, 10 continuous work shift system, after
which
employees are granted 4 days off, pending the outcome of a dispute
that has been referred to the General Public Service Sectoral
Bargaining Council (the GPSSBC).
2.
The application was opposed by the respondent, the Minister of
Correctional Services.
3. On 24 June 2009 the
State as employer concluded a collective agreement - GPSSBC
Resolution 2 of 2009 (resolution 2 of 2009) with
trade unions in the
GPSSBC on the implementation of an occupational specific dispensation
(OSD) for correctional services officials.
One of the
objectives of resolution 2 of 2009 is the introduction of a 45-hour
work week for the implementation of the OSD and
the implementation of
a 7-day establishment shift system for centre based correctional
officials. Clause 13 of resolution 2 of
2009 provides as follows:
“
13.
Introduction of 45 hour week and 7-day establishment
13.1
All Centre Based Correctional Officials shall be translated to the 45
hour work week, with effect from
1 July 2009.
13.2
The Department shall introduce a 7-day establishment for correctional
facilities with effect from 1
July 2009.
13.3
The Department shall develop 7-day establishment models taking into
consideration institution-specific
needs”.
4.
Since the commencement of resolution 2 of 2009 on 1 July 2009, the
department has been unable to implement a practical and lawful
duty
roster in all provinces in accordance with the principle of a 45-hour
work week. On 25 August 2010 the regional commissioner
of the
department in Kwa-Zulu Natal issued an instruction to all area
commissioners to implement a new shift system from 1 September
2010.
On Friday 27 August 2010 the area commissioner for the Durban
management area sent the instruction received from the
regional
commissioner to the head of the correctional centres in the Durban
management area under cover of an internal memorandum.
It
appears that the decision to implement the new system was taken on 4
August 2010 after which the area commissioners informed
all the
relevant parties including the applicant on 31 August 2010. The
applicants and correctional officials became aware
about the new duty
rosters on 1 September 2010 and raised their dissatisfaction with
their local shop stewards, which dissatisfaction
was communicated
through the structures of POPCRU to national level.
5.
On 3 September 2010 the applicant’s attorney on behalf of the
applicant referred a dispute relating to the interpretation
and/or
application of a collective agreement to the GPSSBC. The
dispute is stated to have arisen on 1 September 2010 in KZN
-
Pietermaritzburg. The outcome required is “the setting
aside of the shift system in terms of which correctional officers
are
required to work 10 hours a day for 109 consecutive days”.
The nature of the dispute was also set out.
6.
The applicant instructed its attorney to bring this application.
The application was filed with this Court on 6 September
2010 and was
enroled for a hearing on 7 September 2010. This Court is
satisfied that the application is urgent and complies
with the
provisions of rule 8 of the rules of this court. Arguments were
heard on 7 September 2010. An application
to amend the notice
of motion was granted and the respondent was granted leave to file a
supplementary affidavit which it duly
did. The application was
postponed to 9 September 2010.
7.
According to the document setting out the new shift system,
correctional officials are categorised according to the functions
performed by them. They are divided into two groups, namely
those who are required to work 40 hours per week and those required
to work 45 hours per week. The group of correctional officials
required to work 45 hours per week is divided into two shift
systems,
namely those required to work 10 hour shifts for 10 continuous days
(including a 1 hour lunch break), after which they
are granted 4 days
off and those required to work 10 hour shifts for 5 days (including a
1 hour lunch break), after which they
are granted 2 days off.
The department averages the number of hours worked by correctional
officials over two weeks and then
comes to an average of 45 hours per
week.
8. The following disputes
arose as a result of the new shift system implemented by the
department:
8.1
Firstly, about the maximum hours correctional officials may be
permitted to work per week
without a rest period;
8.2
Secondly, about the maximum hours correctional officials may be
permitted to work overtime
per week; and
8.3
Thirdly, about the averaging of working hours.
9.
Clause 9.5 of the GPSSBC resolution 1 of 2007 provides that the
mechanisms and conditions for the averaging of working hours
shall,
where required, be determined in the respective sectoral bargaining
councils. It is common cause that no agreement
has been
concluded in respect of the averaging of working hours. The
provisions of chapter 2 of the BCEA do not apply to
employees earning
in excess of an amount determined by the Minister, which amount has
been determined as R115 572.00 per annum.
10.
The respondent has in its answering affidavit admitted that the
aforesaid disputes arising from the implementation of the new
shift
system are disputes about the interpretation and application of a
collective agreement, which disputes are arbitrable by
the GPSSBC and
that such a dispute has been referred to the GPSSBC. However in
its supplementary affidavit it contends that
the applicant is not
alleging in its papers that there is a dispute between the parties
about the interpretation and/or applicability
of resolution 2 of 2009
but rather that the respondent has unilaterally and without
consultation, implemented a new shift system
on 1 September 2010.
Accordingly, so it was contended that where there is no dispute
between the parties about the interpretation
and/or applicability of
a provision of a collective agreement, the GPSSBC will have no
jurisdiction in terms of section 24(2) of
the LRA. It was
contended that the applicant is seeking relief in the GPSSBC in terms
of which the shift system is set aside.
The GPSSBC has no power
to set aside a shift system that has been implemented as its
jurisdiction is restricted solely to circumstances
where the parties
are not agreeable or have a dispute relating to the applicability
and/or interpretation of a collective agreement.
It was
contended that there is no basis to grant the interim relief since
the GPSSBC has neither jurisdiction to entertain the
dispute referred
to it by the applicant nor the power to grant the outcome as
requested by the applicant. There is no pending
lis
in the GPSSBC and the relief sought is
final relief. The decision taken by the functionary on 4 August 2010
remains valid and enforceable
until such time as it has been set
aside by this Court or the High Court but not the GPSSBC. There
is no such pending proceedings
challenging the aforesaid decision.
11.
There is simply no basis for what the respondent is contending.
It is clear from the referral to the GPSSBC what the nature
of the
dispute is. It is also clear from clause 19 of resolution 2 of
2009 that should there be a dispute about the interpretation
or
application of the collective agreement any party may refer to the
GPSSBC for resolution in terms of the dispute resolution
procedure of
the GPSSBC. As stated above the respondent has admitted
in its answering affidavit that the dispute before
the GPSSBC is a
dispute arising from the implementation of the new shift disputes
which are disputes about the interpretation of
a collective agreement
and are arbitrable by the GPSSBC. There is therefore a
lis
pending before the GPSSBC.
12.
Disputes arising from the implementation of the new shift system are
disputes about the interpretation and application of a
collective
agreement, which disputes are arbitrable by the GPSSBC.
13. This Court has
jurisdiction to grant interim relief on an urgent basis in terms of
section 158(1)(a)(i) of the LRA. The
interim relief sought is
in the form of an interim interdict, pending the resolution at
arbitration. The employees earning
less than R115 572.00 per
annum, have a clear right in terms of section 9 of the Basic
Conditions of Employment act 75 of 1997
(the BCEA), not to work more
than eight hours a day, if they are required to work more than 5 days
a week. The employees
earning less than the prescribed rate per
annum have a clear right in terms of section 15(1)(b) of the BCEA to
a weekly rest period
of at least 36 consecutive hours which, unless
otherwise agreed, must include Sunday.
14.
The new system implemented by the department is unlawful and
infringes the statutory rights of the affected employees in terms
of
section 9, 10 and 15 of the BCEA, which infringement will continue
until the shift system is abolished.
15.
I am satisfied that the balance of convenience favours the affected
employees. The department will not be inconvenienced
if it
implements a shift system that complies with the requirements of the
BCEA pending the outcome of the arbitration. The
affected
employees will, on the other hand, be inconvenienced and prejudiced
if the department is allowed to continue with the
implementation of
the new shift system.
16.
It is clear from the facts provided to this Court that the respondent
has unilaterally and without and agreement introduced
the new shift.
The applicant has referred to section 64(4) of the LRA in its
referral. The respondent was in
terms of section 64(4) of
the LRA required to restore the terms and conditions for 30 days
after it received the referral.
It has not done so. It is
clear from the answering affidavit that the respondent acknowledges
that it did not obtain an agreement
with the applicant in KZN to
implement the new system. It is a pilot project which will be
reassessed at the end of September
2010. POPCRU and the
affected parties were consulted but no agreement was concluded
between the parties about the implementation.
17. I am satisfied that
the applicant has made out a proper case for the relief sought on an
urgent basis.
18.
The application stands to be granted.
19.
Since the parties do have an ongoing relationship I do not believe
that it would be appropriate that costs should follow the
result.
20.
In the circumstances I make the following order:
20.1
The respondent is hereby interdicted and restrained for a period of
30 days from date of the referral
to the GPSSBC (3 September 2010),
from continuing with the implementation of a shift system in KZN in
terms of which employees
are required to work 10 hours shifts
(including a 1 hour lunch break), for 10 consecutive days, after
which the employees are granted
4 days off.
21.2
There is no order as to costs.
_________________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
APPLICANT
: BASSON
INSTRUCTED BY GROSSKOPF ATTORNEYS
FOR
RESPONDENT
: A
RAMAWELE INSTRUCTED BY STATE ATTORNEY PRETORIA
DATE
OF HEARING
: 7 &
9 SEPTEMBER 2010
DATE
OF JUDGMENT
: 10
SEPTEMBER 2010