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[2017] ZALCJHB 380
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South African Policing Union v South African Police Service and Another (J2594/17) [2017] ZALCJHB 380 (19 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: J 2594-17
In
the matter between:
SOUTH
AFRICAN POLICING UNION
Applicant
and
SOUTH
AFRICAN POLICE SERVICE
First Respondent
NATIONAL
COMMISSIONER,
SOUTH
AFRICAN POLICE SERVICE
Second Respondent
Heard:
18 October 2017
Delivered:
19 October 2017
JUDGMENT
WHITCHER,
J:
[1]
This
matter concerns the continuous strike by the SAPS call centre
employees who work at the “10111 emergency call centre”.
[2]
SAPU
has approached this court on an urgent basis for orders declaring
that the strike is protected and to interdict the SAPS from
instituting disciplinary action against the strikers.
[3]
In
my view SAPS presented a compelling case that the strike is
unprotected on the basis that the issue in dispute has been settled
by a collective agreement concluded between the SAPS and the majority
union, POPCRU.
[4]
Section
23(1)(d) of the LRA empowers employers and majority unions to make
binding on non-parties a collective agreement they have
concluded.
[5]
It
is also questionable whether the continuation of the strike is
functional to collective bargaining considering that it is common
cause between the parties that the SAPS does not have the power to
determine and upgrade conditions of service and salary levels
of PSA
employees. That power falls within the mandate of the Department of
Public Service and Administration (DPSA) and negotiated
in the Public
Service and Co-Ordination Bargaining Council.
[6]
This
court, however, is not in a position to make a ruling that the strike
is unprotected because, prior to launching this application
in the
Labour Court, SAPU referred a dispute to the SSSBC concerning the
interpretation and application of the collective agreement.
This
dispute is still pending before the SSSBC and is of material
relevance to whether the strike is protected or not.
[7]
I
turn now to SAPU’s prayer for this court to interdict the SAPS
from instituting disciplinary proceedings against the strikers.
[8]
What
SAPU is effectively asking this court to do is to intervene in
internal disciplinary proceedings as a forum of first instance
and
decide internal disciplinary matters. This, the court is not inclined
to do.
[9]
In
the case of
Lesiba
v
Department of Justice
[1]
Van
Niekerk J held that for courts t
o
intervene in internal workplace disciplinary proceedings would
undermine the statutory purpose underlying dispute resolution under
the LRA. Challenges to disciplinary action are to be dealt with in
the ordinary course of the exercise of workplace discipline.
If the
rulings made in these internal disciplinary processes become the
subject of dispute, these are matters that ought to be
dealt with
during the course of an arbitration under the auspices of the CCMA or
bargaining council having jurisdiction. This court
exercises a
supervisory jurisdiction by way of its power to review rulings and
awards made by arbitrators. That system is entirely
undermined when
parties seek this court’s intervention, as a forum of first
instance, effectively to micro-manage workplace
disciplinary
hearings.
[2]
Order
[10]
In the
premises, the following order is made:
1.
The
application is dismissed with costs.
______________________
B. Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
A Gerber
Instructed
by:
For
the Respondents:
J Bhima,
Instructed
by:
The State Attorney, Johannesburg
[1]
(J2262/17) [2017] ZALCJHB 365 (4
October 2017)
[2]
See paragraphs 5
to 8.