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[2015] ZALCJHB 326
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Public Servants Association and Others v National Union of Home Affairs and Others (JR657/2015) [2015] ZALCJHB 326 (22 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable / not
Reportable
Case no: JR657/2015
PUBLIC
SERVANTS ASSOCIATION
First
Applicant
NATIONAL
UNION OF PUBLIC SERVICE
AND
ALLIED WORKERS
NATIONAL
EDUCATION HEALTH
AND
ALLIED WORKERS UNION
Second
Applicant
Third
Applicant
and
DEPARTMENT OF HOME
AFFAIRS
First Respondent
GENERAL PUBLIC
SERVICE SECTORAL
BARGAINING
COUNCIL
Second Respondent
PM NGAKO
N.O.
Third Respondent
Heard:
7
August 2015
Delivered:
22
September 2015
Summary:
Review
– commissioner incorrectly finding that bargaining council
lacked jurisdiction because the dispute did not involve
a matter of
mutual interest – ruling set aside
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
This
is an application to review and set aside a jurisdictional ruling
issued by the third respondent (“the commissioner”).
In
his ruling, the commissioner found that the dispute referred to the
second respondent (“the GPSSBC”) by the first
applicant
(“the PSA”), the second applicant (“the NUPSAW”)
and the third applicant (“the NEHAWU”)
“is not a
matter of mutual interest”, and “consequently [that the]
GPSSBC lacks jurisdiction in this matter”.
[2]
As
dealt with further below, the alleged dispute of mutual interest
referred by the applicant unions to the GPSSBC involved a change
to
the scheduling of working hours by the first respondent (“the
department”).
Statutory
provisions
[3]
There
are two statutory provisions that were relied on by the department
and the commissioner, which can be conveniently quoted
at the outset.
The first is section 7 of the BCEA,
[1]
which provides (under the heading “regulation of working time”)
as follows:
“
Every
employer must regulate the working time of each employee-
(a)
in accordance with the provisions of any Act governing occupational
health and safety;
(b)
with due regard to the health and safety of employees;
(c)
with due regard to the Code of Good Practice on the Regulation of
Working Time issued
under section 87 (1) (a); and
(d)
with due regard to the family responsibilities of employees.”
[4]
The
second is regulation B of part VI of the Public Service
Regulations,
[2]
which provides
(under the heading “working hours”) as follows:
“
A
head of department shall determine-
(a)
the work week and daily hours of work for employees; and
(b)
the opening and closing times of places of work under her or his
control, taking into
account-
(i) the
needs of the public in the context of the department's service
delivery improvement programme;
and
(ii) the
needs and circumstances of employees, including family obligations
and transport arrangements.”
Background
to the jurisdictional ruling
[5]
The
background leading to the commissioner’s jurisdictional ruling
is not in dispute, and can be summarised as follows.
[6]
On
6 February 2015, at a special Departmental Bargaining Chamber (“DBC”)
meeting, the department proposed certain changes
to the scheduling of
working hours (“the new model”). In the process, it
adopted the position that the new model was
up for consultation, but
not collective bargaining. The unions were afforded an opportunity to
consult with their members before
responding.
[7]
On
27 February 2015, at another special DBC meeting, the unions recorded
their opposition to the new model, and adopted the position
that the
changes should form the subject of collective bargaining, and
ultimately a collective agreement. The department, in turn,
stuck to
its position, and notified that it intended implementing the new
model on 1 March 2015 – this in circumstances where
it
considered that it had duly consulted on the matter.
[8]
A
circular was subsequently issued by the department confirming that
the new model would come into effect from 23 March 2015 (“the
circular”).
[9]
On
13 March 2015, the PSA referred a dispute of mutual interest to the
GPSSBC for conciliation. The PSA demanded in the referral
that the
circular be withdrawn, agreement be reached that changes to working
hours would be the subject of negotiation between
the parties, and
that working hours be structured in such a fashion that every
employee gets two days a week off.
[10]
On
19 March 2015, the NEHAWU both withdrew an earlier section 64(4)
dispute and referred a mutual interest dispute instead to the
GPSSBC
for conciliation. In its referral, the NEHAWU demanded the withdrawal
of the circular, and that any changes to working hours
be the subject
of negotiation between the parties.
[11]
The
NUPSAW did not make a referral of its own, but appears to have made
application to join as a party to the dispute before the
GPSSBC,
making common cause with the other unions.
[12]
The
dispute was set down for conciliation by the GPSSBC on 2 April 2015.
On that day, the department raised a challenge to the jurisdiction
of
the GPSSBC – this on the basis that the dispute (allegedly) did
not involve a matter of mutual interest. The commissioner
determined
this issue in his jurisdictional ruling (dated 8 April 2015) that
forms the subject of this review application.
The
jurisdictional ruling
[13]
The
key part of the commissioner’s
ratio
decidendi
are paragraphs 15 and 16 of the jurisdictional ruling. They read as
follows:
“
I
also agree with the respondent that in terms of the above provisions,
the employer has
prerogative
to regulate working hours
.
I was referred to
SA Police
Union v National Commissioner of the SA Police Service & another
[2006] 1 BLLR 42
(LC) [“
SAPU
’].
Murphy [AJ] … (as he then was) stated [at para 84]:
[3]
‘
In
short, it was not a term of the contract of employment that employees
working twelve-hour shifts would always be entitled to
do so. Without
express, implied or tacit contractual rights to such effect, the
employees do not have a vested right to preserve
their working times
unchanged for all time. The alteration of shifts does not result in
the employees being required to perform
a different job thereby
entitling them to claim a material breach or alteration in the
supposition of the contract. The change
in timing does not amount to
a change in the nature of the job. The shift system was accordingly
merely
a work practice
,
not a term of employment.’
According
to Acting Judge Murphy as he then was in
SAPU
above, shift
changes is
merely a work practice
. In the matter before me the
Minister has bestowed
the prerogative
on the head of
department to determine working hours, which prerogative he may
exercise in terms of the Public Service Regulation[s]
Part VI
(B) [‘the regulation’]. As a result taking into
consideration Section 7 of the [BCEA], [the regulation]
and the
decision of Judge Murphy in
SAPU
… [t]he changes by the
respondent in opening and closing [hours] are a
work practice
being subject to the employer’s prerogative
.” (Own
emphasis.)
[14]
In
the result, the commissioner ruled that the dispute referred to the
GPSSBC “is not a matter of mutual interest”,
and
“consequently [that the] GPSSBC lacks jurisdiction in this
matter”.
Grounds
of review: evaluation and analysis
[15]
To
begin with, one might question the utility of this review application
– this in the light of at least one judgment which
held (in
virtually identical circumstances) that, despite the existence of the
jurisdictional ruling, the applicant unions would
be entitled to
strike after referring a dispute to conciliation and waiting out the
30-day conciliation period.
[4]
However, given that the applicant unions appear desirous of actually
engaging in conciliation under the auspices of the GPSSBC
with a view
to resolving the dispute, I am persuaded that some purpose is served
by this review application.
[16]
Turning
to the review test, it is well established that, when it comes to
jurisdiction, the review test is correctness (not reasonableness
or
anything else).
[5]
It follows
that the single issue in this matter is whether or not the
commissioner was correct in finding that the dispute did
not involve
a matter of mutual interest – it being on this basis (and this
basis alone) that he ruled that the GPSSBC lacked
jurisdiction to
conciliate the dispute.
[17]
A
matter of mutual interest is not defined in the LRA.
[6]
In the present matter, the controversy regarding the reach of the
term stems from the fact that in the referrals for conciliation,
the
unions ticked the “matters of mutual interest” box, when
asked to describe the nature of the dispute. In labour
law parlance,
what this means in practical terms is that the unions consider the
dispute to be one over which a protected strike
can be called. This
in circumstances where one of the defining elements of a “strike”
in section 213 of the LRA is
that its purpose must be the remedying
of a grievance or resolving a dispute in respect of “any
matter
of mutual interest
between employer and employee” (own emphasis).
[18]
There
are many judgments in the strike context which have interpreted what
a matter of mutual interest entails. For present purposes,
there is
no need to traverse them all. Recently, in
Vanachem
Vanadium Products (Pty) Ltd v National Union of Metalworkers of SA &
others
(2014) 35
ILJ
3241 (LC) (“
Vanachem
”)
at para 17, Van Niekerk J provided this description of the reach of
the phrase (which is consistent with a long line of
authorities):
“
But
the use of the term 'mutual interest' in the LRA is very different –
it ultimately
serves to define the
legitimate scope of matters that may form the subject of collective
agreements, matters which may be referred
to the statutory
dispute-resolution mechanisms, and matters which may legitimately
form the subject of a strike or lock-out
.
In this sense, 'matters of mutual interest' serves to distinguish
those disputes that concern the
socio-economic
interests
of workers (see s 77, which
permits protest action in support of such disputes) and what might be
termed purely
political disputes
,
for which the LRA does not afford any right to strike or lock-out. It
is not necessary for present purposes to define the term
'matters of
mutual interest' with any precision, but it seems to me that
it
requires, in broad terms, no more than that the issue that is the
subject of any term of any collective agreement, referral for
conciliation or the subject of any strike or lock-out be work
related, or as the court put it in the
De
Beers
[7]
decision, it must concern the employment
relationship
.” (Own emphasis.)
[19]
In
short, leaving aside purely political disputes and socio-economic
disputes, all disputes that arise on the shop floor that concern
the
employment relationship constitute matters of mutual interest. This
wide interpretation of the phrase is, of course, in keeping
with the
fact that constitutional rights (in this case, the right to strike)
must be construed broadly.
[8]
[20]
As
Vanachem
also
makes clear, included in the phrase “a matter of mutual
interest” are
both
disputes of right and interest.
[9]
This is important because there is sometimes a misconception that a
matter of mutual interest excludes disputes of right. This
is wrong
and conflates the meaning of a strike and the substantive limitations
on the right to strike. A strike over a dispute
of right (being a
matter of mutual interest) is still a strike as defined in the LRA,
but it is prohibited because it is hit by
the substantive limitation
on the right to strike in section 65(1)(c) of the LRA.
[21]
On
the face of it, as Mr Orr (who appeared for the applicants)
submitted, apart from wages, it is difficult to imagine a better
example of a matter of mutual interest than a dispute about hours of
work, and a change in the scheduling thereof.
[22]
On
what basis then did the commissioner find that the dispute is not
about a matter of mutual interest? As appears from the quotation
in
paragraphs 13 and 14 above, this came about principally as a
consequence of the commissioner’s reliance on the judgment
of
Murphy AJ in
SAPU
in
the present context – it having caused the commissioner to find
that, in the present matter, a change in hours of work
constitutes
simply a change in “a work practice” which fell within
the department’s “prerogative”,
and thus did not
constitute a matter of mutual interest.
[23]
In
our labour law, the relevance of something being a work practice is
that the status
quo
provisions provided for in section 64(4) of the LRA (which sanctions
an immediate retaliatory strike if the employer does not restore
the
status
quo
),
are only applicable if the employer unilaterally effected a change to
“terms and conditions of employment”, as opposed
to a
non-contractual work practice.
[10]
Put differently, as a non-contractual work practice does not
constitute a term and condition of employment and falls within the
prerogative of management, changes to them do not trigger section
64(4).
[24]
But
in the present matter, reliance was not placed on section 64(4), with
the result that whether the new model simply involved
a change in a
work practice, which the department had the prerogative to effect,
had no bearing on whether the dispute involved
a matter of mutual
interest. Work practices, and the exercise of management prerogative
in their alteration, certainly concern
the employment relationship,
and fall within the wide definition of a matter of mutual interest
espoused in
Vanachem.
[25]
In
argument, in addition to defending the commissioner’s reliance
on
SAPU,
Mr Mokhari SC (who appeared for the department) also submitted that
the applicants’ members “cannot strike over the
determination of working hours which is statutorily permissible”
– this being a reference to the fact that the department
(through its Director General) is permitted by both the BCEA and the
Public Service Regulations to set working hours (see paragraphs
3 and
4 above). Mr Mokhari further submitted that the dispute “is a
rights dispute that is subject to arbitration”.
[26]
To
my mind, there is no merit in these submissions. Insofar as the
department is permitted and has the prerogative to introduce
the new
model, this does not detract from the fact that it involves a matter
of mutual interest. By way of analogy, in
Pikitup
(SOC) Ltd v SAMWU obo members and others
[2014] 3 BLLR 217
(LAC), the LAC accepted that the employer was
permitted to introduce breathalyser testing, but at the same time
found that the
dispute relating thereto involved a matter of mutual
interest, over which a strike was permissible. In relation to the
dispute
of right contention, reference is made to paragraph 20 above.
Even if the strike would be unprotected, this does not mean that it
does not involve a matter of mutual interest, with the result that
the GPSSBC’s jurisdiction to conciliate would be unaffected
by
the protected nature (or otherwise) of the strike. Although I can
find no basis upon which a strike over the new model would
be
unprotected,
[11]
it is thus
strictly speaking unnecessary for me to decide the issue for present
purposes, and I accordingly decline to do so.
[27]
In
the result, I conclude that the commissioner was wrong in finding
that the GPSSBC lacked jurisdiction to conciliate the dispute,
with
it flowing from this that the ruling is reviewable.
[28]
Before
turning to my order, I should mention that I do not consider an order
as to costs to be appropriate in the circumstances
of this matter.
The parties have an ongoing relationship, and the department should
not be held to blame for the fact that the
commissioner’s
ruling is wrong and thus reviewable.
Order
[29]
In
the premises, the following order is made:
1.
The
jurisdictional ruling made by the third respondent is reviewed and
set aside;
2.
The
second respondent is directed to enrol the dispute of mutual interest
for conciliation by a commissioner other than the third
respondent;
3.
There
is no order as to costs.
________________________________
Myburgh,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the applicants: Adv C Orr (instructed by Bowman Gilfillan)
On
behalf of the first respondent: Adv W Mokhari SC (instructed by the
State Attorney)
[1]
Basic Conditions
of Employment Act 75 of 1997
.
[2]
Public Service
Regulations 2001, published under GN R1 in
GG
21951 of 5 January 2001.
[3]
I have corrected
the quotation in line with the text of the BLLR.
[4]
City of
Johannesburg Metropolitan Municipality & another v SAMWU &
others
[2011] 7 BLLR 663 (LC).
[5]
The LAC has handed
down a long line of judgments to this effect, which can be traced
back to
SA
Rugby Players’ Association (SARPA) & others v SA Rugby
(Pty) Ltd & others; SA Rugby Pty Ltd v SARPU & another
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at para 41.
[6]
Labour Relations
Act 66 of 1995
.
[7]
De Beers
Consolidated Mines Ltd v CCMA & others
[2000] 5 BLLR 578 (LC).
[8]
Vanachem
at para 18.
[9]
See the quotation
in para 18 above read with
Vanachem
at para 16.
[10]
See, for example,
Johannesburg
Metropolitan Bus Services (Pty) Ltd v SAMWU & others
[2011] 3 BLLR 231
(LC);
Unitrans
Supply Chain Solutions (Pty) Ltd v SA Transport & Allied Workers
Union & others
(2014)
35
ILJ
265 (LC).
[11]
On the face of it,
none of the limitations on the rights to strike provided for in
section 65(1)
and
section 65(3)
of the LRA are applicable.