IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case No. J 519/97
In the matter between:
Alpha Limited t/a Alpha Limited Lime Applicant
AND
South African Workers Union 1st Respondent
Building Allied Mining & Construction
Workers Union 2nd Respondent
JUDGMENT
MLAMBO J.
1. The Applicant had for some time prior to 1992 maintained a practice where its
foremen enjoyed the usage of bakkies for personal and official purposes. It was
accepted and must have been approved by the applicant that the foreman traveled
with artisans as and when the latter so desired. This occurred in the mornings and
afternoons to and from work. It also occurred during lunch time breaks when the
foreman drove to their homes to have their meals and then return to work.
2. Sometime towards the end of 1991 and the beginning of 1992 the Applicant took
the bakkies away from the foremen. The Applicant assisted the foremen to
purchase their own vehicles before it took the bakkies away from them. The
artisans who had till then traveled with the foremen in the bakkies started using
them for standby duties. During a meeting on 03 March 1992 between
representatives of the Applicant and the First Respondent (Sawu) (at the time
known as Yster and Staal) the following was minuted in relation to the usage of
the bakkies by the artisans:
“Daar is tans ‘n hele klomp bakkies wat ‘n groot koste faktor is.
Daar is
nou ‘n 16 sitplek kombi gekoop wat vir bystand gebruik sal word
en alle
bakkies salop perseel bly.
Ambagsmanne sal in die oggende en middae met kombis gehaal
en
weggeneem word. Met etenstyd sal ambagsmanne nog met
bakkies kan
huistoe gaan.”
3. The artisans then in keeping with the “arrangement” referred to above started to
use the bakkies to go to their homes for lunch. I use the term “arrangement”
advisedly since the parties are at loggerheads on the true interpretation of that
“arrangement”. No problems are mentioned relating to the usage of the bakkies by
the artisans until September 1993. On 15 September 1993 a meeting took place
between representatives of the Applicant and those of the Second Respondent
(BAMCWU). The issue discussed at that meeting centred around a complaint by
BAMCWU that employees apparently wanted the same lunch time arrangement as
that of the artisans. The minute of that meeting reflects the following:
“UNION: Workers feel that they do not have the same privilege as
the artisans. Artisans go home in the bakkies, but MA’s
cannot go home for lunch. Feel this is discriminatory.
“MGMT: Will investigate and report back.”
4. A number of meetings followed between the Applicant and Sawu as well as
BAMCWU during the period 1993 to 1997 in a bid to resolve the lunchtime
transport issue. At some stage during this period it was agreed that three bakkies
per residential area be availed for lunch time transport purposes. The idea was that
three bakkies would serve the traditionally black residential area, three bakkies for
the socalled coloured area and three bakkies for the white settlement.
5. This arrangement did not prove to be the solution everyone had hoped for.
Apparently the bakkies were not available at lunch time to attend to normal
breakdowns. It appears that there were other problems such as accidents caused
breakdowns. It appears that there were other problems such as accidents caused
with the bakkies, overloading and a general deterioration of safety standards.
Despite Sawu’s denial is appears that there is merit in the Applicant’s version to
the effect that the bakkies allocated per residential area were hopelessly
inadequate. It appears that not all employees who wished to use the bakkies could
do so either because there was no space available or because they were shown off
the bakkies. The applicant also had a problem relating to the operational costs
involved in this arrangement.
6. The Applicant tried to renegotiate the arrangement with BAMCWU and Sawu.
This didn’t help as BAMCWU was happy with the equal distribution of the
bakkies whereas Sawu wanted additional vehicles or wanted the previous
arrangement to prevail whereby only artisans were entitled to lunch time transport.
Sawu’s alternative was that all the bakkies by withdrawn and a shorter lunch time
be introduced. Eventually it was agreed that a referendum be held amongst all
affected employees regarding the proposal to shorten the lunch time. A majority of
employees voted against shortening of the lunch hour.
7. In view of the referendum results and in view of problems and costs involved in
the lunchtime transport arrangement the Applicant wanted to withdraw the bakkies
completely. This prompted Sawu to lodge a dispute with the Commission for
Conciliation Mediation and Arbitration on 22 January 1997. The nature of the
dispute is described as the Applicant’s decision to stop the lunch time transport
which was allocated to artisans on job level PG 11 on 3 March 1992. Sawu
described the result sought as conciliation as follows:
“1. The original arrangement as on 03 March 1992, that is nine
bakkies
available as lunch time transport only for artisans on a PG 11 job
level.
2. Or a 20 min lunch hour, where the days work, will be stopped 20
minutes earlier, as than usual, a financial compensation will be
negotiated for artisans because of the lost of lunch time
transport.”
8. The CCMA was unable to resolve the dispute and issued a certificate as envisaged
in section 135(5)(a), stating that the dispute was unresolved. The certificate also
records that the dispute related to the unilateral change to terms and conditions of
employment. Sawu however did not prosecute the dispute further. On 12 May
1997 the Applicant referred the dispute to the CCMA. The nature of that dispute is
described as:
described as:
“The unfair insistence by Sawu and certain Sawu members that the
company should continue granting artisans at the company a
privilege
that cannot be justified on operational grounds. Such insistence
and the
contention that it is an irrevocable condition of employment on the
part
of Sawu and certain Sawu members is discriminatory and has the
effect
that the company would, in breach of the provisions of the Act, be
promoting unfair discrimination on the basis of status and/or job
category.”
The Applicant stated that the result required at conciliation was “to be able
to stop
a discriminatory practice.” This dispute could also not be resolved by the
CCMA
and it was then referred to this court for adjudication.
9. In its statement of claim the Applicant seeks the following relief:
“28.1 Declaring that the provision of transport to an exclusive
group of
employees constitutes unfair discrimination and an unfair
labour
practice;
28.2 Permitting the Applicant to withdraw the privilege without
further
ado.
28.3 Costs of suit as against first respondent.”
The Applicant in a sense, also requests the court to fund that the provision
of
lunch time transport to a specific group of employees (artisans) is a
privilege and
not a condition of employment. Sawu takes issue with the Applicant’s
stance. It
denies that the provision of lunch time transport to artisans is
discriminatory and
insists in its response to the statement of claim, that the provision of lunch
time
transport to artisans is a condition of employment which cannot be
changed
unilaterally.
Condition of employment or privilege
10. The Applicant’s contention is that the provision of lunch time transport to Sawu’s
members is a privilege and not a condition of employment as contended on behalf
of Sawu. Sawu’s stance is based on an allegation that at a meeting with the
Applicant on 3 March 1992 it was agreed that its members in the Engineering
Department (artisans) would be entitled to use bakkies as lunch time transport.
11. Terms and conditions of employment are determined by the parties themselves
and by legislation. Legislation such as the Basic Conditions of Employment Act
no 75 of 1997 sets minimum terms and conditions of employment such as working
hours, meal intervals, overtime, work on Sundays and public holidays, annual and
sick leaves etc. Parties can and always agree on other or better conditions on the
negotiating table. It is a norm that terms and conditions of employment are agreed
and regulated through collective bargaining. In a unionized environment such as in
the present matter those terms and conditions of employment agreed between the
parties are set out in a collective agreement between the union and the employer.
Terms and conditions of employment agreed collectively are in most instances an
improvement on and/or additional to standard ones usually set out in a letter of
appointment or employment contract. Terms and conditions of employment found
in a collective agreement are normally negotiated and agreed periodically, usually
annually. Annual collective bargaining negotiation meetings are specially called
for that purpose. I cannot however exclude the possibility that on occasion, terms
and conditions of employment can be negotiated and agreed at monthly meeting.
Monthly meetings are there to discuss operational issues that arise form time to
time.
12. The term “privilege” is described in the New Shorter Oxford English Dictionary
as “prerogative”; “a right, advantage, or immunity granted to or enjoyed by a
person or class of people”; “a special right”. A privilege or “vooreeg” in
Afrikaans, is something that need not be negotiated nor is it established by statute.
Its withdrawal cannot give rise to any claim such as in the case of a term or
condition of employment.
13. It is common cause in this matter that the lunch time transport issue was dealt with
for the first time, between Sawu and the Applicant at a monthly meeting on 3
for the first time, between Sawu and the Applicant at a monthly meeting on 3
March 1992. This issue did not find its way into the agenda of that meeting via a
demand by Sawu. It became an issue simply because artisans had become
accustomed to using the transport with foremen. When the Applicant rearranged
the foreman’s transport it became necessary to formalize the artisans situation. It
appears that the Applicant agreed to allow artisans to continue enjoying that
“benefit” rather than withdraw it.
14. In my view the meeting of 3 March 1992 cannot be regarded as a negotiating
meeting where terms and conditions were the subject matter. It was a normal
monthly meeting between Sawu and the Applicant which was used sometimes to
discuss problems. The lunch time transport had become a problem with had to be
resolved. The fact that the Applicant agreed to let the artisans continue enjoying
the lunch time transport did not give rise to a condition of employment. This was a
simple extension of a privilege or benefit that was hitherto enjoyed formally by
foremen.
15. The only justification for extending this benefit to artisans is that they had
indirectly been enjoying it with the foremen. This was the only factor taken into
account when the agreement was reached in March 1992. it is therefore incorrect
to regard the lunch time benefit as a condition of employment. It is simply not a
condition of employment because a new employee graded on the same grade as
artisans but doing other work cannot claim entitlement thereto.
16. The background relating to this benefit also demonstrates that it is not a condition
of employment. It is common cause that when BAMCWU’s members started
complaining about the lunch time transport it was agreed to allocate three vehicles
per residential area. This also gave rise to other problems as the three vehicles
allocated to the black residential area were hopelessly inadequate. The reasoning
being the agreement to allocate three bakkies per residential area was to equalize
the enjoyment of a benefit. A Bamcwu member cannot claim this benefit as a
condition of employment simply because three vehicles were availed. This is the
only basis on which Sawu’s members claim it because it arose that way. It is
equally not open to Sawu’s members to claim it as a condition of employment
simply because it gave rise to no rights or entitlement. It did not come about as a
result of collective bargaining nor was it a conditions of employment at the time of
engagement of the artisans.
17. Sawu’s about turn in the case also reinforces my view on the matter. Throughout
Sawu made out a case that the lunch time transport was a condition of
employment of its members who were artisans. This appears in the dispute Sawu
declared but did not pursue. This is also apparent from the statement of defence in
this matter. It was in evidence that Sawu suggested that all employees were
entitled to use the bakkies at lunch time. This fillies in the face of the transport
entitled to use the bakkies at lunch time. This fillies in the face of the transport
arrangement being a condition of employment to which only Sawu members who
were artisans are entitled to. Sawu’s evidence in this regard confirms the view that
it is a benefit or privilege presently enjoyed by an exclusive group as opposed to
all.
Discrimination
18. The Applicant contends that the extension of the lunch time transport is unfairly
discriminatory as it is enjoyed by an “exclusive” group of employees.
Andre Van Niekerk in “ Current Labour Law 1995” at page 77 says:
“To discriminate is to fail to treat fellow human beings as individuals. It is to
assign to them characteristics which are generalized assumptions about
groups of people (Bourn & Whitmore Race and Sex Discrimination ). The
point is well illustrated by Hurley v Mustoe [1981] ICR 490, where the
employer took the attitude, one commonly encountered, that mothers with
small children are unreliable. The court held that the employer’s attitude
contravened the provisions of the Sex Discrimination Act. The import of the
case is not that employers should recruit women irrespective of their
reliability – rather, employers must assess all candidates on the grounds of
their own potential reliability. The relevant factor is reliability, not sex or
motherhood (Bourn & Whitmore 45).”
He further states at page 78 that:
“It is important to appreciate that it is not necessary to show any intention to
discriminate for direct discrimination to be established. A good example is
provided by the case of R v Birmingham City Council ex parte EOC [1989]
IRLR 172 (HL). In that case the City Council had acquired a school which
provided more places for boys than girls in the local grammar school, but
raised as a defence its lack of intention to place girls at a disadvantage. The
House of Lords said the following:
‘There is discrimination under the statute if there is less favourable treatment
on grounds of sex, in other words if the relevant girl or girls would have
received the same treatment as the boys but for their sex. The intention or
motive of the defendant to discriminate, though it may be relevant so far as
the remedies are concerned….is not a necessary condition of liability: it is
perfectly possible to envisage cases where the defendant had no such motive,
and yet did in fact discriminate on grounds of sex.. In the present case,
whatever may have been the intention or motive of the Council, nevertheless
it is because of their sex that the girls in question receive less favourable
treatment that the boys and are the subject of discrimination under the Act of
1975.’
19. The issue was also considered by Seady AJ in Leonard Dingler Employee
Representative Council v Leonard Dingler (Pty) Ltd and Others (1998) 19
Representative Council v Leonard Dingler (Pty) Ltd and Others (1998) 19
ILJ 285 (LC). She also makes the point that to establish direct discrimination it is
not necessary to show any intention to discriminate. Unfair discrimination is
outlawed by section 9(3) of the Constitution Act no 108 of 1996 and in the LRA
by item 2(1)(a). As to what constitute unfair discrimination has been a subject of a
number of Constitutional court decisions. In Harksen v Lane NO & Others 1998
(1) SA 300 Goldstone J said at page 323H that the determining factor regarding
unfairness (of the discrimination) is the impact of the discrimination of the victim.
Du Toit and others “The Labour Relations Act of 1995 2 nd edition state at page
432:
“An intention to discriminate need to be proved for discrimination to be
established. In respect of the forms of discrimination listed in item 2(1)(a), a
complaint does not need to prove that such discrimination is arbitrary but
only that it was unfair in the circumstances. As regards forms of
discrimination other than those listed it will be necessary to prove that they
were arbitrary also.
The Act does not define “unfair” or “arbitrary”. It is trite that
discrimination, in the sense of differentiation, is not necessarily unfair. If it
were, we would have no differential tax rates, no social security legislation
and no state housing. “Unfair” in this context appears to refer to the effect of
the discrimination of the employee. “Arbitrary” by contrast, implies a test
whether the reason for the discrimination is sufficiently related to the
protectable interests of the employer.”
The enquiry in the present case
20. There can be no doubt that the provision of lunch time transport to an exclusive
group of employees in itself is discriminatory. It is discriminatory because it seeks
to differentiate the employees of the Applicant. It is common cause that this
privilege was only enjoyed by Sawu members who wee artisans. The situation
changed when the employees who had no access thereto started complaining. The
decision to provide three bakkies per residential area was doomed to fail. Fro
starters it did not take account of the number of employees per residential area. In
fact it is clear from the evidence led that the three bakkies provided for the
traditionally black residential area were disproportionate to the number of
employees who stayed there. This means that the white and coloured employees
who were significantly lesser, comparatively, had better enjoyment of the
privilege. That arrangement can also be labeled as discriminatory on this basis
alone.
21. To the extent that it might be so that other employees have utilized the lunch time
21. To the extent that it might be so that other employees have utilized the lunch time
transport has no effect on the situation. The fact remains that as long as Sawu
members claim the privilege as theirs only gives them control over the bakkies. It
means that other employees can only enjoy the benefit as and when Sawu
members allow them to. It does not assist Sawu therefore that other employees
might have access to the bakkies occasionally.
22. The question remains whether such discriminatory practice is unfair and therefore
outlawed. In my view the provision of lunch time transport to Sawu members only
is arbitrary. It is arbitrary because it cannot be justified on any basis. It is arbitrary
because it takes no account of the grading of employees. Employees on the same
grade as artisans in other departments who might which to have access thereto are
denied such access. I accept the Applicant’s evidence that other employees have
complained that they were shown off the bakkies when they tried to use them. It is
not difficult to fathom that Sawu members having control of the bakkies would
deny access to the bakkies to others wishing to use them. After all Sawu and its
members defended the practice with conviction claiming it as theirs only until of
course when Muller and Bezuidenhout took the stand.
23. I therefore find that the provision of lunch time transport to artisans only, being an
exclusive group, discriminates unfairly against other employees and is therefore
outlawed. Even if my finding was that the practice is not discriminatory because
other employees might have access to the bakkies, I cannot see how the Applicant
can, fairly, be expected to continue with it. The Applicant has demonstrated,
satisfactorily, that operationally the practice cannot be sustained. The Applicant
can simply not be expected to maintain a privilege that is an operational
nightmare. After all is said and done it appears justified for the Applicant to
withdraw the privilege.
24. The order of the court is therefore”
1. The provision of lunch time transport as a privilege to artisans as an exclusive
group of employees constitutes unfair discrimination.
2. The Applicant is ordered to withdraw the privilege.
3. Sawu is ordered to pay the Applicant’s legal costs.
MLAMBO J.
Date of judgment: 16 March 1999
For the Applicant: S.C. Pretorius instructed by Webber Wentzel Bowens.
For the Respondent: Mr. H. Haykock instructed by Tim du Toit & Co.