IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
CASE NO. J1584/05
In the matter between:
SOUTH AFRICAN POLICE UNION First Applicant
POLICE AND PRISON’S CIVIL RIGHTS UNION Second Applicant
and
THE NATIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICE First Respondent
THE MINISTER FOR SAFETY AND SECURITY Second Respondent
J U D G M E N T
MURPHY A J:
1. This case raises the important question of whether the Commissioner of
Police, when acting as an employer, is under a constitutional, statutory or
contractual duty to consult with members of the South African Police
Service, or their representatives, about the amendment or alteration of
their terms of employment or labour practices. It is a matter of some
importance and one which might have profited from a fuller examination of
the case law and academic writings touching upon the issues involved.
Unfortunately the need to render a quick decision has denied me the
opportunity to do the review I would have preferred. So be it. One can only
express the hope that the line of reasoning which follows has not been
impoverished as a result.
2. The applicants, the South African Police Union (SAPU) and the Police and
Prisons Civil Rights Union (POPCRU), to whom I will refer jointly as “the
unions”, seek urgent interim relief in the form of an order interdicting the
first respondent, the National Commissioner of the South African Police
Services, (“the Commissioner”), from introducing a new 8hour shift
system in respect of members of the SAPS engaged in line activity duties
across the entire country. The interim interdict is sought pending either the
final determination by the Labour Court of a review of the Commissioner’s
decision in terms of section 158(1)(h) of the Labour Relations Act (“the
LRA”), which confers upon the Labour Court the power to review decisions
or acts of the State in its capacity as employer on such grounds as are
permissible in law, or the resolution of the dispute through the procedures
of the Safety and Security Sectoral Bargaining Council (“the SSSBC”),
whichever is the sooner.
3. In terms of section 24(1) of the South African Police Service Act of 1995
the Minister of Safety and Security is empowered to make regulations
regarding the exercising of policing powers and the performance by
members of their duties and functions; conditions of service of members;
the general management, control and maintenance of the service; and
labour relations. On 14 April 2000 the Minister, acting in terms of the
provision, enacted GNR389 of GG21088 containing the “South African
Police Service Employment Regulations” (“the regulations”), which
regulate the working conditions of employees of the SAPS. Chapter VI of
the regulations deals with the “Working Environment.” Regulations 30 and
31 are of particular importance and provide as follows:
30. Principles
Working hours of the service and conditions must support effective and
efficient service delivery while, as far as reasonably possible , taking into
account the personal circumstances of employees including those of
account the personal circumstances of employees including those of
employees with disabilities.
31 Working Hours
The National Commissioner must 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 and the service delivery
improvement programme of the service; and
(ii) the needs and circumstances of employees,
including family obligations and transport
arrangements.
4. Before the adoption of a fundamental constitution in 1994, and also prior
to the making of the regulations, the SAPS implemented an 8hour shift
system, consisting of three 8hour shifts, namely morning (06h0014h00),
afternoon (14h0022h00) and night (22h0006h00), that were worked in
various cycles by all employees engaged in line activity duties. The SAPS
has approximately 140 000 employees, of whom approximately 115 000 to
120 000 are engaged in line activity duties in Community Service Centres,
Crime Prevention Units, Crime Investigations Units and Protection
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Services Units.
5. During 1994 employees in the SAPS began working 12hour shifts as a
means of compensating for staff shortages. As far as I am able to
ascertain from the papers, this entailed employees rendering services for
12 hours per shift, on average three or four times per eightday cycle. By
far the majority of employees performing line activity duties began to
render services in accordance with the 12hour shift system and continued
to do so until mid 2005. Hence, a survey conducted by SAPU of 121
police stations in Free State Province revealed that 107 utilized 12hour
shifts. Employees apparently prefer the 12hour shift system because it
provides them with a balance between their work and family duties. By
2002 more than 90% of employees worked a 12hour shift.
6. Before the promulgation of the regulations in 2000 the terms and practices
of employment in the SAPS were regulated by legislation, standing orders
and various collective agreements. With the enactment of regulation 31
the Commissioner acquired the duty to determine working weeks and
hours as well as the opening and closing times of places of work under his
control.
7. On 8 May 2002, acting as parties to the SSSBC, and after extensive
negotiations, the Commissioner and the unions concluded collective
agreement 5/2002. The purpose of agreement 5/2002 was to delineate the
work week and daily hours of work for employees of the SAPS and to set
the opening and closing times of their places of work. The agreement
commences by noting that the provisions of Chapter 2 of the Basic
Conditions of Employment Act 1997 regulate working time and that
regulation 31 obliges the Commissioner to determine the work week and
daily hours of work, as well as the opening and closing times of the places
of work.
daily hours of work, as well as the opening and closing times of the places
of work.
8. Clause 1 of agreement 5/2002 governs the ordinary hours of work. It
reads:
The ordinary hours of work of any employee shall not be more than 40 hours per
week. The daily hours of work shall not be more than 8 hours per day for those
employees who render administrative duties. Shifts duties will be performed in
either 8 hour or 12 hour shifts.
9. Clause 2.2 regulates the shift system applicable to offices that render line
activity duties on the basis that such offices as far as possible be
operative on a 24 hour a day/7 days a week basis. The relevant part of
this clause states:
For this purpose the following operating hours can be utilized:
2.2.1 Eight hour shift system
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Employees render services for eight hours per shift, on avarege five times per week.
2.2.2 Twelve hour shift system
Employees render services for twelve hours per shift, on average three or four times per eight
day cycle.
2.2.3 Forty hour flexi system
In order to enhance service delivery it will be necessary for
certain work stations not to operate within a fixed shift system,
but rather according to service delivery needs. Employees may
be utilized to render services for a period of between eight and
twelve hours per day (normal working hours) provided that:
any flexi system must solely be based on enhanced service
delivery;
any service arrangement must first meaningfully be consulted
with the employees and their recognized employee organizations
of a particular workstation before the introduction thereof. A
written record of the said consultation must be kept;
the daily hours of work do not exceed twelve hours (excluding
overtime);
the weekly hours of work do not exceed forty hours (excluding
overtime);
the employee must perform those duties on not less than four
occasions per week and not more than five occasions per week;
a daily rest period of at least six consecutive hours between
ending and recommencing work and a weekly rest period of at
least 24 consecutive hours, which does not necessarily include a
Sunday, are granted;
these services be rendered uninterruptedly until completion of
the shift .
10. Clause 7 of agreement 5/2002 provides for dispute resolution as follows:
If there is a dispute about the interpretation or application of this agreement any
party may refer the matter to the Council (SSSBC) for resolution in terms of the
dispute resolution procedure of the Council.
11. On 31 May 2002 the Commissioner issued a circular addressed to all
senior officers and functionaries throughout the SAPS across the country
senior officers and functionaries throughout the SAPS across the country
explaining the context and purpose of agreement 5/2002. In it the
agreement is described as “a groundbreaking agreement regarding
working hours” in the SAPS. The circular offers a justification for the
change in the system in the following terms:
The arrangement regarding working hours that has been in existence for the past
number of years has been found to neither enhance current service delivery
needs, nor take the personal needs of employees into account. The framework
agreement that has been entered into makes it possible for customised working
hours to be implemented at every workplace, based on the demands and needs
experienced at the particular workplace.
12. This collective agreement has governed working hours in the SAPS since
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its conclusion. From February 2005 to May 2005, the unions and the
Commissioner participated in a process for the rationalization, review and
consolidation of the various collective agreements concluded in the SAPS
during the period 1994 to 2004, which process yielded another collective
agreement repealing some agreements and retaining others. It is clear
from the provisions of this latter agreement that agreement 5/2002 was
retained and is accordingly current and of full force and effect.
13. On 29 June 2005 the Commissioner issued a second circular, addressed
to the same persons as that issued on 31 May 2002, also concerning
working hours in the SAPS. In it the Commissioner communicated that he
had decided “to terminate the use of the current twelve hour system” and
to introduce a new shift system known as the “adapted eight hour shift
system”
14. Clause 6.2 of the second circular deals with the proposed new shift
regime with regard to the offices that render line activity duties. It is re
iterated that such offices must, as far as possible, be operative 24 hours a
day, seven days a week. In order to achieve this, two operating systems
are available: the adapted 8hour shift system and the 40hour flexi
system. The latter system is in most respects the same as that set out in
agreement 5/2002. The adapted 8hour shift comprises four reliefs
working two morning, two night and two afternoon shifts, with three rest
days granted between shift cycles.
15. Clause 3 of the second circular repeals and replaces the circular of 31
May 2002. Clause 12 proclaims that the circular will be implemented with
immediate effect but allows a grace period for the introduction of the
adapted 8hour shift system until 1 September 2005. In this regard it
states:
states:
The contents of this circular will be implemented with immediate effect. However,
the adapted eight hour shift system for all shift workers may be implemented
immediately but by no later than the 1 st September 2005.
16. The Commissioner contends that the reason the adapted 8hour shift
system was to be phased in over a period of two months was in order to
allow the employees and the union time to raise concerns and give their
inputs which could be taken into consideration.
17. It is clear from the circular that the Commissioner considered the abolition
of the 12hour shift and the introduction of the adapted 8hour shift as
being in the best interests of service delivery. Thus, by 2005 it had
become apparent to the management of the SAPS that the 12hour shift
was not optimal, efficient or effective. It is felt that employees do not
perform optimally after 8 hours because of the deleterious physical effects
of working 12 hours resulting in a less efficient and effective workforce
more prone to mistakes and accidents. The unions dispute this.
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18. On 8 July 2005 SAPU addressed a letter to the management of the SAPS
submitting that implementation of the changes to working hours
contemplated in the second circular would be in breach of section 23(4) of
the LRA, clause 16.9 of the SSSBC constitution, an order of the Labour
Court dated 28 March 2005 and agreement 5/2002. The union demanded
withdrawal of the circular failing which it would take “the necessary legal
action to protect its member’s rights”.
19. On the same day the SSBC addressed a letter to the management of the
SAPS including a letter from POPCRU dated 7 July 2005 setting out its
position that the second circular amounted to “a unilateral change to terms
and conditions of employment because the SAPS have never consulted
organized labour with regard to the changes”. POPCRU requested the
SSSBC “to write a letter to management in this regard and request them
not to implement the change until the matter has been discussed in the
council”.
20. Management responded to SAPU in a letter dated 13 July 2005 in which
it argued that agreement 5/2002 provided for shift duties to be performed
in either 8 hour or 12 hour shifts and that a decision had been taken to opt
exclusively for 8 hour shifts in the interests of optimal efficiency. It further
contended:
The implementation of the 8 hour shift system does not impact on the hours of
work that may be performed by employees, neither does it deviate from
Agreement 5/2002; either the 8 or 12 hour shift system may be applied.
21. Without any elaboration, management went on to say that the SAPS was
of the opinion that the circular was not in the breach of any provisions of
the LRA, the SSBC constitution or the order of the Labour Court. It
accordingly refused to withdraw the circular.
22. In response to POPCRU’s letter of 7 July 2005, management wrote a
22. In response to POPCRU’s letter of 7 July 2005, management wrote a
letter dated 18 July 2005 in which it repeated the comments it had made
to SAPU, but additionally specifically denied that the circular amounted to
a unilateral change to terms and conditions of employment.
23. Thereafter the management of the SAPS made a proposal that a
workshop be convened under the auspices of the SSSBC to enable it to
deal with the unions’ concerns about the implementation of the new shift
system. However, it held consistently to the view that the decision to
introduce the new system fell within the scope of the managerial
prerogative permitted by agreement 5/2002.
24. Some time in early July 2005, SAPU referred a dispute to the SSSBC. In the
referral form the dispute is identified as one about a unilateral change to terms and
conditions of employment. Under the paragraph headed “outcome required” the
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union recorded that it wanted the SAPS to be interdicted from implementing the
8hour shift system. In the pro forma space provided, it recorded (with
reference to section 64(4) of the LRA) that it required the employer not to
implement unilaterally the proposed changes for 30 days and demanded
that it restore the terms and conditions of employment that applied before
the change. The particulars of the dispute were set out in an annexure to
the referral form and repeated verbatim the contentions made in SAPU’s
letter dated 8 July 2005 addressed to management.
25. On 12 July 2005 the unions’ attorneys addressed a letter to the management of
the SAPS contending that the SAPS was not entitled to proceed with the
“unilateral implementation of the changed conditions of service pending the
outcome of the referral ”. They sought confirmation before 12h00 on 13 July
2005 that the SAPS would not proceed with the implementation failing
which they would approach the Labour Court for relief. The next day they
wrote another letter including the referral to the SSSBC and requested a
response to the letter of the previous day “on a very urgent basis”.
26. On 25 July 2005 the management of the SAPS addressed a letter to the
unions and the SSSBC recording its view that the change in the shift
system did not amount to a unilateral change to the terms and conditions
of employment because agreement 5/2002 provided for such a shift.
27. Around about this time, attempts were made to convene workshops with the
unions under the auspices of the SSSBC to discuss the implementation of the
adapted 8hour shift system. However, in a letter dated 22 July 2005, addressed to
the Secretary of the SSSBC, SAPU indicated that it was not prepared to engage in
a workshop about implementation of the decision when a dispute process was
a workshop about implementation of the decision when a dispute process was
under way in relation to the validity of the decision itself. It made the point that
the dispute had been set down for “conarb” on 12 August 2005 and that the SAPS
had not restored the status quo pending the determination of the dispute. It
concluded:
The fact of the matter is therefore that as far as the SAPU is concerned SAPS is
still proceeding with the implementation and has not given any undertaking that it
would not proceed with the implementation or restore the status ante quo . In
those circumstances SAPU cannot be expected to attend a workshop to consult
on the issue of implementation if SAPS is not prepared to confirm that it would
not proceed with the unilateral implementation.
28. Despite this a special meeting of the SSSBC was held on 26 July 2005
attended by POPCRU and the representatives of the SAPS management,
but not by SAPU. POPCRU took the position that SAPS had amended
agreement 5/2002 without following the proper procedures of the SSSBC
and without consulting labour. Management took the view that it had not
amended agreement 5/2002 but had acted in terms of it. Management
further expressed a willingness for workshops to be held at both provincial
and area levels to engage in discussions over the implementation of the
adapted 8hour shift. POPCRU indicated its intention not to engage unless
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the circular of 29 June 2005 was withdrawn. SAPS said that the refusal to
engage over implementation was unjustified.
29. Having reached deadlock, SAPS then went ahead and by the time papers
were filed had phased in the adapted 8 hour shift throughout the country.
It is presently operating in the majority of areas in the country.
30. On 27 July 2005 POPCRU referred a dispute to the SSSBC for conciliation. It
too categorized the dispute as a unilateral change to terms and conditions of
employment and sought to invoke the provisions of section 64(4) of the LRA to
restore the status quo ante pending the conciliation process.
31. A conciliation hearing evidently consolidating the dispute referred by both
unions was held on 12 August 2005. The dispute could not be resolved
and the SSSBC issued a certificate of outcome confirming that a dispute
concerning an “alleged unilateral change to conditions of employment”
remained unresolved.
32. In his founding affidavit in these proceedings, the general secretary of
SAPU averred that the Commissioner’s attitude necessitated urgent relief.
He stated:
The conciliation meeting was the applicants’ final attempt to avoid resorting to
litigation against the Commissioner over these issues. The Commissioner’s
obstinate refusal to comply with his legal obligations has necessitated this
application.
33. Ten days after the conciliation hearing, on 22 August 2005, the applicants
filed their urgent application seeking an interim interdict pending the
review of the Commissioner’s decision by this court or the resolution of the
dispute by the SSSBC. The parties are in dispute about whether the
matter is indeed urgent. For reasons which will become apparent I do not
propose to deal with the question of urgency now, but will do so later in
this judgment.
propose to deal with the question of urgency now, but will do so later in
this judgment.
34. At different stages in the dispute process the unions have challenged the
Commissioner’s decision on various grounds. As we have seen, in the
conciliation process the unions categorised the decision to introduce the
adapted 8hour shift as a unilateral amendment of the terms and
conditions of their member’s employment contracts. SAPS, on the other
hand, saw the change as an alteration of a work practice, permitted in
terms of the collective agreement. The full significance of the different
interpretations will appear later. For the purposes of the immediately
ensuing discussions I allow for either possibility when speaking of the
change by referring generically to “the decision” of the Commissioner.
35. It is common cause that the decision of the Commissioner was made
without any prior consultation with the unions or the employees. The
Commissioner, we have seen, is of the opinion that he was under no duty
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to consult in regard to the taking of the decision, but remained willing to do
so in relation to the issues of implementation. His final position is clearly
articulated in a letter written on his behalf to senior officials in the SAPS on
16 August 2005 where he states:
This directive of the National Commissioner is in line with all the relevant
legislation and agreements. Rumours are doing the rounds that the
implementation of the adapted 8 hour shift system constitutes a unilateral change
in the conditions of service of employees. The changing of work hours constitutes
a change in the work practice rather than a change in conditions of service. The
National Commissioner is within his rights to change any work practice.
36. In these proceedings the unions have challenged the decision on three
grounds, namely: that it is in violation of an order of this court; that it
breaches the collective agreement; and that it should be set aside under
the Promotion of Administrative Justice Act of 2000 (“ PAJA) as
procedurally unfair, unreasonable or irrational administrative action.
37. Turning first to deal with the court order: On 18 March 2005 my colleague
Broster AJ made a settlement agreement concluded by the SAPS,
Western Cape and SAPU an order of court. The agreement arose out of
an urgent application for an order to stay the enforcement of the
instructions issued by the Area Commissioner: Southern Cape dated 17
February 2004 and 9 March 2005 pertaining to flexihours and weekend
duties. Paragraph 3 of the settlement agreement reads:
Any new service arrangement regarding working hours of employees will only be
introduced after meaningful consultation with the employees and their recognized
employee organizations in accordance with Agreement SSSBC 5 of 2002.
The applicants contend that the Commissioner agreed in terms of this
The applicants contend that the Commissioner agreed in terms of this
clause not to introduce any new service arrangements regarding working
hours without meaningful consultation and hence that the decision of 29
June 2005 contravenes the court order.
38. The submission is unsustainable when assessed against a proper reading
of the entire agreement. Paragraphs 1 and 2 of the settlement agreement
make it clear that the order relates to an instruction introducing the flexi
40hour shifts in support services in a limited geographical area. It has no
application to the switch from the 12hour shift to the adapted 8hour shift
in respect of employees rendering line activity duties throughout the
country. By virtue of its limited scope and application the court order
imposed no duty on the Commissioner to consult with the unions before
taking the decision of 29 June 2005.
39. The principal thrust of the unions’ challenge before this court was that
based on the right to just administrative action. It was contended that
because the SAPS is an organ of state, the decision to scrap the 12 hour
shift system in favour of the adapted 8 hour shift constituted administrative
action. Consequently, the action was reviewable under section 6 of PAJA
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because relevant considerations were not taken into account, it was
procedurally unfair, arbitrary or capricious and irrational. The allegation of
procedural unfairness flows from the Commissioner’s admitted failure to
consult, whereas the allegations of unreasonableness and irrationality
arise from the contention that the Commissioner neglected to give proper
and sufficient consideration to the needs and circumstances of the
employees including their family obligations and transport arrangements,
as he was required to do in terms of regulations 30 and 31 of GNR389 of
GG21088 of April 2000.
40. In order for the unions to succeed on this ground they require to show
that their complaint falls within the purview of protection afforded by the
right to just administrative action.
41. Since the introduction of a fundamental constitution in 1994 there is no
longer any doubt that judicial review of administrative action is part of our
constitutional law. Section 33 of the Constitution enshrines the
fundamental right to just administrative action. It reads:
(1) Everyone has the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action
has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must
(a) provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b) impose a duty on the State to give effect to the rights in subsections
(1) and (2), and
(c) promote an efficient administration.
42. PAJA is the legislation referred to in section 33(3) of the Constitution.
43. In Pharmaceutical Manufacturers Association of SA and Another: In re Ex
Parte President of the Republic of South Africa and Others 2000 (2) SA
Parte President of the Republic of South Africa and Others 2000 (2) SA
674 (CC) the Constitutional Court held that under our new constitutional
order the control of public power is always a constitutional matter. The
implications of that finding were usefully and succinctly explained by the
court in Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs
2004 (4) SA 490 (CC) @ para 22 as follows:
There are not two systems of law regulating administrative action the common
law and the Constitution. The courts’ power to review administrative action no
longer flows directly from the common law but from PAJA and the Constitution
itself. The grundnorm of administrative law is now to be found in the first place
not in the doctrine of ultra vires, nor in the doctrine of parliamentary sovereignty,
nor in the common law itself, but in the principles of our Constitution. The
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common law informs the provisions of PAJA and the Constitution, and derives its
force from the latter. The extent to which the common law remains relevant to
administrative review will have to be developed on a casebycase basis as the
courts interpret and apply the provisions of PAJA and the Constitution.
44. Section 6 of PAJA identifies the circumstances in which the review of
administrative action may take place. In this regard the Constitutional Court stated
that the provisions of section 6 divulge a clear purpose to codify the grounds of
judicial review and that a cause of action for the judicial review of administration
action now ordinarily arises from PAJA, not from the common law as in the past.
The causes of action prescribed in PAJA are in the main those derived from the
common law doctrine of ultra vires , natural justice, legality and rationality.
45. Judicial review under PAJA and the Constitution is dependent upon the action
qualifying as “administrative action”. In giving meaning to that term under
section 33 of the Constitution the court has distinguished between it and other
forms of governmental or state action, such as action of a constitutionally
empowered legislature ( Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA
374 (CC)) or judicial action (Nel v Le Roux NO and Others 1996 (3) SA
562 (CC)).
46. In President of the RSA and Others v SARFU and Others 1999 (10)
BCLR 1059 (CC) the court emphasised that not all conduct of state
functionaries entrusted with public authority will fall to be classified as
“administrative action”. In that instance it drew a distinction between the
constitutional responsibility of cabinet ministers to ensure the
implementation of legislation and their responsibility to develop policy and
implementation of legislation and their responsibility to develop policy and
to initiate legislation, the former being justiciable administrative action, the
latter not. The court concluded:
It follows that some acts of members of the executive in both the national and
provincial spheres of government will constitute “administrative action” as
contemplated by section 33, but not all acts by such members will do so.
Determining whether an action should be characterised as the implementation of legislation on
the formulation of policy may be difficult. It will…. depend primarily upon the nature of the power.
A series of considerations may be relevant to deciding on which side of the line a particular action
falls. The source of the power, though not necessarily decisive, is a relevant factor. So too is the
nature of the power, its subject matter, whether it involves the excise of a public duty, and how
closely it is related on the one hand to policy matters, which are not administrative, and on the
other to the implementation of legislation which is. While the subject matter of a power is not
relevant to determine whether constitutional review is appropriate, it is relevant to determine
whether the exercise of the power constitutes administrative action for the purpose of section 33.
Difficult boundaries may have to be drawn in deciding what should and what should not be
characterised as administrative action for the purposes of section 33. These will need to be drawn
carefully in the light of the provisions of the Constitution and the overall constitutional purpose of
an efficient, equitable and ethical public administration. This can best be done on a case by case
basis.
47. In relation to determining the meaning of “administrative action” under
PAJA the requirements of the task have acquired a more specific focus,
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though I doubt have been made much easier, by the inclusion of a
definition of “administrative action” in section 1(i) of PAJA.It reads:
any decision taken or any failure to take a decision, by
a) an organ of state, when
(i) exercising a power in terms of the Constitution or a
provincial constitution, or
(ii) exercising a public power or performing a public function
in terms of any legislation, or
b) a natural or juristic person, other than an organ of state, when
exercising a public power a performing a public junction in terms of
an empowering provision,
which adversely affects the rights of any person and which has a direct, external legal effect.
Thereafter follow various specific exclusions including inter alia legislative,
judicial and prosecutorial decisions.
48. As I have said, the primary question in this case is whether the decision
of the Commissioner to introduce the adapted 8hour shift constituted
administrative action. This must be determined with reference to the
directions of the Constitutional Court and the provisions of PAJA.
49. It is common cause that the SAPS is an organ of state within the meaning
of section 237 of the Constitution. Mr. WattPringle, who appeared on
behalf of the applicants, submitted that the Commissioner’s decision was
taken when “exercising a public power or performing a public function” in
terms of the regulations enacted under section 24(1) of the South African
Police Service Act of 1995 and hence fell within the ambit of paragraph (a)
(ii) of the definition of administrative action.
50. Mr Bruinders, who appeared on behalf of the respondents, countered that
when the Commissioner made the decision he did not exercise a public
power or perform a public function. Regulation 31, he argued, has dual
purposes. Regulation 31(a) empowers the Commissioner to determine the
purposes. Regulation 31(a) empowers the Commissioner to determine the
work week and daily hours of work for employees. Regulation 31(b)
empowers him to determine the opening and closing times of the places of
work under his control. Mr Bruinders submitted that the determination of
the opening and closing times of police stations is clearly the exercise of a
public power or the performance of a public function, while the
determination of daily hours of work or shift times is not, primarily because
it derives from the managerial prerogative in the conduct of labour
relations, and, as he saw it, an authority seated in the collective
agreement.
51. I agree with Mr.Bruinders, but for reasons somewhat at variance with the
submissions he made. Unlike Mr Bruinders, I do not see the source of the
Commissioner’s powers as vested in agreement 5/2002. I agree rather
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with Mr. WattPringle that the source of the Commissioner’s powers in
regard to labour relations is in the express terms of section 24(1) of the
South African Police Service Act of 1995, which empowers the Minister to
make regulations in relation to the conditions of service of members and
labour relations. Acting in terms of these powers, the Minister has
bestowed the prerogative upon the Commissioner to determine working
hours, which prerogative he may exercise unilaterally, or bilaterally, in
terms of existing contracts of employment or collective agreements,
depending on the circumstances. Hence the power is indeed derived from
a public source, but, as the Constitutional Court has indicated, the source
of the power, while relevant, is not necessarily decisive. Equally, if not
more, important are the nature of the power, its subject matter and
whether it involves the exercise of public duty. There is nothing inherently
public about setting the working hours of police officers. Nor is there any
public law concern here, the matter falls more readily within the domain of
contractual regulation of private employment relations. The nature of the
power exercised and the function performed in the setting or agreeing of
shift times does not relate to the government’s conduct in its relationship
with its citizenry to which it is accountable in accordance with the precepts
of representative democracy and governance. The powers and functions
concerned derive from employment law and are circumscribed by the
constitutional rights to fair labour practices and to engage in collective
bargaining. One is instinctively drawn to the conclusion that the concept of
administrative action is not intended to embrace acts properly regulated by
private law. To render every contractual act of an organ of state a species
private law. To render every contractual act of an organ of state a species
of administrative action carries the risk of imposing burdens upon the
State not normally encountered by other actors in the private sphere.
52. In reaching this conclusion I appreciate that the distinction between
administrative action and acts regulated by private law will be difficult to sustain
in practice not least because organs of state frequently contract out public
functions to private actors. Additionally, the Supreme Court of Appeal recently
has held that the consideration and award of tenders constitutes administrative
action, and although the rights involved in the tendering process are essentially
contractual in nature, administrative action in the tendering process must be
procedurally fair, reasonable and rational Logbro Properties CC v Bedderson
N.O. and Others 2003 (2) SA 460 (SCA). However, to my mind, there is
considerable contextual difference between tendering and employment.
Tendering serves the public interst in promoting competition in the
provision of services to government and advances equality in business
development. Decisionmaking in this area impacts upon the rights,
interests and expectations of parties external to government. Employment
relationships, on the other hand, are conducted internally in service of the
immediate objectives of the organ of state and are premised upon a
contractual relationship of trust and good faith.
53. Moreover, the categorization of tendering as administrative action is
justified by its public nature. The eventual conclusion of the tender
13
contract is preceded by purely administrative acts and decisions by
officials in the sphere of the spending of public money by public bodies in
the public interest Logbro @ para 19. By contrast, the adjustment of
shifts in terms of a collective agreement ought not to be considered as
administrative action, for, amongst other reasons, in this instance it was
done under a contract concluded on equal terms between equal parties
”without any element of superiority or authority” deriving from SAPS’s
public position. The organized power of the unions, bestowed upon them
by the constitutional labour rights in section 23 of the Constitution and the
Labour Relations Act, puts them on an equal contractual footing to the
SAPS Logbro @ para 10. The present matter does not involve a situation
where the state is enforcing a contract on another party on a “take it or
leave it” basis, where consensus is more apparent than real. The very
purpose of collective bargaining is to bring equality to the relationship.
Collective bargaining organizes and distributes contractual power by
means of the power play inherent in the process.
54. Allowing that such a distinction may be seen by some to be a fine one,
even strained or artificial, it must be kept in mind that our Constitution
draws an explicit distinction between administrative action and labour
practices as two distinct species of juridical acts, and subjects them to
different forms of regulation, review and enforcement. Labour relations in
our system are regulated primarily through collective bargaining, minimum
standards legislation and contextually sensitive dispute resolution which
takes account of the policy prescriptions and values of a constitutionally
sanctioned pluralist model, underpinned by organizational rights,
sanctioned pluralist model, underpinned by organizational rights,
majoritarianism and a preference for negotiated solutions and outcomes.
55. Many might be inclined to discount such reasoning as formalistic.
However, the analysis cannot be said to comprise pigeonholing the issue,
for the sake of it, with reference to its superficial or outward
characteristics. On the contrary, there are important underlying
substantive principles or policy concerns at play here, namely that the
resolution of employment disputes in the public sector should be
accomplished by identical mechanisms and in accordance with the same
values as in the private sector: that is, through collective bargaining and
the adjudication of unfair labour practices, as opposed to judicial review of
administrative action. And additionally that our constitutional prescriptions
in that regard ought to be consistently maintained.
56. On that basis alone I agree with Mr Bruinders that the powers and
functions involved in switching the shift arrangements are not of a public
nature. They reside within the commercial or private domain of labour
relations.
57. What is more, before a decision can fall within the definition of administrative
action it has to be one “which adversely affects the rights of any person and which
has direct, external legal effect.” An argument might be made that the SAPS
14
employees at most had an expectation of procedural fairness and no right to work
a 12hour shift and were thus not adversely affected in their rights. So narrow a
construction of the term “rights” in this context would not accord with the balance
of authority favouring a more extensive interpretation see JR de Ville: Judicial
Review of Administrative Action in South Africa (Butterworth, 2003) @
5154. More difficult for the applicants though is getting past the threshold
requirement of a “direct, external legal effect”. A decision has direct legal
effect when it is a legally binding determination of someone’s rights,
possessed of the quality of finality. In order to have an “external” effect it
must affect outsiders and should not be a purely internal matter of
departmental administration or organization De Ville @ 58. The person
affected must be someone other than a person in government Greys
Marine Hout Bay (Pty) Ltd v Minister of Public Works 2004 (3) All SA 446
(C) @ 458. The members of the South African Police Service are not
persons outside of the organ of state. They are insiders. And the
Commissioner’s decision is an internal matter of departmental
organization. On this ground too, then, the decision is not administrative
action.
58. Not being administrative action, the applicants are not entitled to seek
review of the Commissioner’s decision in terms of section 6 of PAJA or
directly under section 33 of the Constitution. PAJA has been enacted to
give effect to the rights in section 33 of the Constitution and hence there is
no difference between the administrative action within contemplation of
both provisions.
59. My conclusions on this point are at odds with decisions of other courts of equal
standing. In Mbayeka and Another v MEC for Welfare, Eastern Cape [2001]
standing. In Mbayeka and Another v MEC for Welfare, Eastern Cape [2001]
1 All SA 567 (Tk) an urgent application was brought by the applicants for
an order declaring their suspension from duty without emoluments to be
unconstitutional. The respondent argued that the High Court had no
jurisdiction to hear the matter as the dispute concerned an alleged unfair
labour practice falling within the exclusive jurisdiction of Labour Court in
terms of the then applicable provisions of the LRA. The applicants argued
that the dispute fell within the ambit of section 157(2) of the LRA, which
provides that the Labour Court and the High Court have concurrent
jurisdiction in respect of alleged violations of constitutionality guaranteed
rights arising from employment and from labour relations or any dispute
over the constitutionality of an executive or administrative act or conduct
by the State in its capacity as an employer. Section 157(2) of the LRA
reads:
The Labour Court has concurrent jurisdiction with the High Court in respect of
any alleged or threatened violation of any fundamental right entrenched in
Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising
from
a) employment and from labour relations;
b) in respect of any dispute over the constitutionality of any executive or
15
administrative act or conduct by the State in its capacity as an employer;
c) the application of any law for the administration of which the Minister is
responsible”.
Jafta J (as he then was) held that the High Court had jurisdiction in
respect of any alleged violation of the constitutional right to fair labour
practices. The learned judge held further that when the MEC suspended
the applicants she exercised a public power derived from section 22(7) of
the Public Service Act and that the failure to afford the applicants a
hearing prior to doing so constituted unconstitutional administrative action
falling under the jurisdiction of the High Court. Similarly, in Simela and
Others v MEC for Education Eastern Cape and Another [2001] 9 BLLR
1685 9 (LC) Francis AJ (as he then was) held that a decision to transfer
an employee without prior consultation amounted to both unjust
administrative action and an unfair labour practice.
60. To the extent that these judgements confirm the proposition that transfers or
suspensions in contravention of the audi alteram principle violate the
constitutional right to fair labour practices I am in respectful agreement
with them. Where I differ is with the conclusion that a transfer or a
suspension constitutes administrative action. Neither judgement gives full
consideration to the definition of “administrative action” in PAJA. Both, it
would seem, assume that because the power to suspend or transfer is
sourced in legislation it axiomatically follows that the power or function
involved is a public one. For the reasons elaborated above, the source of
the power though relevant is not decisive. Equally important is the nature
of the power and the subject matter. Disciplinary or operational transfers
of the power and the subject matter. Disciplinary or operational transfers
and suspensions are employment or labour relations matters, not
administrative acts.
61. Moreover, section 157(2) of the LRA, which confers constitutional
jurisdiction on the Labour Court, and which was discussed by Jafta J in
Mbayeka, explicitly draws a distinction between conduct viloating
fundamental rights “arising from employment and from labour relations”
and the violation of any fundamental right arising from “any dispute over
the constitutionality of an executive or administrative act….by the State in
its capacity as an employer.” The delineation leads to an ambiguity. Either
the classification contemplated is broadly one between the private sector
and the public sector in which private sector employer conduct towards
employees is considered to be employment or labour relations conduct,
while all conduct by the State in the public sector towards its employees is
deemed to be administrative action. Or, alternatively, more narrowly, that
all conduct in the employment sphere in both the private and public sector
is either employment and labour relations conduct or administrative acts or
conduct.
62. There seems to me to be no logical, legitimate or justifiable basis upon
which to categorise all employment conduct in the public sector as
16
administrative action, if only because of the principle of equality, and
especially in the light of the express provisions of the definition of
administrative action in PAJA. Besides, a distinction can and should be
drawn between contractual and labour practices of an employer, on the
one hand, and administrative acts or conduct of an employer on the other.
Administrative acts of an employer include: the collection and payment of
PAYE and SITE taxes; the appointment of employer representatives to the
board of an occuptional pension fund; the distribution of a pension or
group life benefits to the dependants or beneficiaries of deceased
employees; the administrative functions associated with unemployment
and occupational disease and injury social insurance schemes; and so on.
It is in respect of constitutional issues arising from such acts that section
157(2)(b) of the LRA confers constitutional jurisdiction upon the Labour
Court in relation to the State in its capacity as employer and for the
purposes of which jurisdiction the power of review is granted to the Labour
Court in terms of section 158(1)(h) of the LRA. This interpretation, as
intimated earlier, is supported by the structural demarcation drawn by the
Constitution between administrative action and labour practices, as well as
prudential or costbenefit arguments preferring voluntarist collective
bargaining and appropriate dispute resolution to judicial review as the
means of regulating employer conduct. Accordingly, the constitutional
framework favours the narrower interpretation of section 157(2)(b) of the
LRA.
63. However, it must be conceded, the narrower interpretation suffers two
defects: the one logical, the other historical and doctrinal. The narrower
defects: the one logical, the other historical and doctrinal. The narrower
interpretation of section 157(2)(b) means that the Labour Court will have
jurisdiction over employer administrative acts violating constitutional rights
only where the employer is the State. Administrative acts of employers in
the private sector violating constitutional rights will be reviewable by the
High Court. There is no apparent good reason for this anomaly. However,
the dichotomy is not resolved by adopting the broader interpretation that
all State employer conduct is administrative action. Private employer
administrative acts, unlike unconstitutional employer conduct arising from
employment and labour relations reviewable under section 157(2)(a),
would still fall outside the Labour Court’s jurisdiction. The fact that, under
either interpretation, section 157(2) confers extensive jurisdiction upon the
Labour Court to review on constitutional grounds both the employment
practices and employer administrative acts of the State, but only the
employment practices of private employers does not justify the conclusion
that all employer conduct in the public sector constitutes administrative
action. A badly crafted jurisdictional structure does not permit the
collapsing of the constitutional differentiation between labour practices and
administrative action.
64. The second and perhaps more challenging difficulty in accepting the
narrow interpretation of section 157(2) of the LRA is that our courts in the
fairly recent past have held that employment relationships in the public
17
sector cannot be viewed as purely contractual or private. Prior to the
extension of the protection in the Labour Relations Act to State employees
in 1995, our courts began to develop the common law to grant protection
to State employees against unfair employer conduct. In order to do so, it
became necessary to regard the State’s conduct as an employer as being
administrative action. In Administrator, Transvaal and Others v Zenzile
and Others 1991(1) SA 532 (A) the then Appellate Division held that the
existence of a contractual relationship does not make the relationship
between the State and its employees a purely contractual one. The court
held that the power to dismiss was disciplinary or punitive in nature, had
been exercised by a public authority in terms of a statute, adversely
affected the rights of employees and thus attracted the rules of natural
justice, irrespective of the contractual nature of the relationship. Having
accepted such employer conduct to be administrative action the courts
soon extended the scope of protection to decisions to retrench, suspend,
transfer, promote and deprive of benefits Administrator, Natal and
Another v Sibiya and Another 1992 (4) SA 532 (A); Bula v Minister of
Education 1992 (4) SA 716 (TkA); Hlongwa v Minister of Justice, Kwazulu
1993 (2) SA 269 (A); and Foster v Chairman, Commissioner for
Administration and Another 1991 (4) SA 403(C).
65. All these decisions were handed down before the adoption of a
fundamental constitution in 1994 and the subsequent codification of our
administrative law and labour law respectively in PAJA and the LRA
consciously to give effect and content to the constitutional rights to just
administrative action and fair labour practices. I accordingly agree with the
administrative action and fair labour practices. I accordingly agree with the
sentiment expressed by Pillay J in Public Servants Association obo
Haschke v MEC for Agriculture and Others (2004) 25 ILJ 1750 (LC)
@1775 DH when she observed :
Labour law is not administrative law. They may share many common
characteristics. However, administrative law falls exclusively in the category of
public law, whereas labour law has elements of administrative law, procedural
law, private law and commercial law. Historically, recourse has been had to
administrative law to advance labour rights where labour laws were
inadequate….However, pursuant to the affirmation of the interim Constitution and
the final Constitution that everyone has a right to fair labour practices, the LRA,
the EEA ( Employment Equity Act) and the Basic Conditions of Employment Act
75 of 1997 ( the BCEA) codified labour and employment rights…….”
66. It follows from this line of thought that the progressive decisions of our
courts, extending labour rights to public sector employees by categorising
employer conduct as administrative action, have lost their force following
the codification of our administrative law and labour law, and the extension
of full labour rights to public sector employees by the LRA,. Courts might
therefore justifiably be expected to reconsider previous doctrine in the light
of the new constitutional and statutory framework. This much was clearly
stated by the Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister
of Environmental Affairs and Tourism and Others (supra) when it directed
18
that the grundnorm of administrative law is not to be found in erstwhile
common law doctrine but in the principles of our Constitution, requiring the
relevance of previous doctrine to be reevaluated on a case by case basis.
67. In so far as the decisions in Mbayeka and Simela were handed down by
courts of equal status subsequent to the adoption of the Constitution and
the codification of our administrative and labour laws, the doctrine of
judicial precedent obliges me to follow them unless I am convinced that
they were incorrectly decided. As I have mentioned, neither gave overt or
direct consideration to the definition of administrative action in PAJA, both
appear to have preferred an interpretation of section 157(2) of the LRA
categorising all public sector employer conduct as administrative action
and both were premised upon the doctrinal underpinnings of the Zenzile
line of cases now no longer relevant or authoritative. For such reasons, I
respectfully disagree with them and do not consider myself bound by the
ratio decidendi of both that all State employer conduct constitutes
administrative action.
68. Therefore, to repeat the finding made earlier, the Commissioner’s
decision determining daily hours of work and shift times does not in my
view involve the exercise of a public power or the performance of a public
function having an external effect and is therefore not administrative action
inviting review under PAJA or section 33 of the Constitution.
69. This leads me to a consideration of the dispute within the paradigm of the
contractually constituted employment relationship and the constitutional
right to fair labour practices.
70. The Commissioner correctly points out that at no stage in the dispute have
the unions sourced the alleged obligation to observe the principles of
the unions sourced the alleged obligation to observe the principles of
natural justice in the unfair labour practice jurisdiction, constitutional or
statutory. They limited themselves to a claim under PAJA. He accordingly
submits that the primary source of the rights and duties of the parties
should be the collective agreements governing their relationship, and in
particular agreement 5/2002.
71. Collective agreements are a unique and special kind of agreement.
Section 213 of the LRA defines a collective agreement as a written
agreement concerning terms and conditions of employment or any other
matter of mutual interest concluded between trade unions and employers.
Section 23 of the LRA gives statutory force to such agreements including
the variation of preexisting contracts of employment, even those of a non
unionised minority of the workforce.
72. Clause 1 of agreement 5/2002 makes it a term and condition of
employment that the ordinary hours of an employee’s work “will be
performed in either 8 or 12 hour shifts”. According to the Commissioner,
the unions have agreed, thereby binding both members and non
19
members, that employees may work either shift. The choice of which shift
should apply is a matter of work practice falling within the Commissioner’s
managerial prerogative. Moreover, it is further submitted, that neither the
unfair labour practice jurisdiction nor agreement 5/2002 confer a right
upon the unions to be consulted prior for the Commissioner excising his
prerogative to apply the adapted 8 hour shift across the board.
73. The unions argue on the other hand that the decision to switch shifts
amounted to a unilateral variation of the employment contracts of the
employees, because employees had a right in terms of their contracts to
opt to work a twelvehour shift. There was also a modest suggestion made
from the bar in argument that the amendment of a work practice without
prior consultation might constitute an unfair labour practice.
74. Once again, the analysis will best be served by commencing with
reference to the Constitution. Section 23 of the Constitution entrenches
labour relations rights including besides the rights to fair labour practices
and collective bargaining, the rights to freedom of association, to strike
and various organisational and participatory rights. For present purpose
only the rights to fair labour practices (section 23(1)) and collective
bargaining (section 23(5)) are of relevance. They are expressed as
follows:
(1) Everyone has the right to fair labour practices.
(5) Every trade union, employers’ organization and employer has the right to engage in collective
bargaining. National legislation may be enacted to regulate collective bargaining. To the extent
that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).
75. The effect of the last sentence of section 23(5), simply put, is that the
75. The effect of the last sentence of section 23(5), simply put, is that the
reasonable and justifiable instruments and products of collective
bargaining may limit the right to fair labour practices, equality, freedom of
movement and perhaps even the right to just administrative action. Such
is in keeping with the voluntarist and pluralist scheme of industrial
relations contemplated by section 23 as a whole and enacted into effect
by the LRA.
76. The structure and content of the LRA confirm the primacy given to
collective bargaining as the preferred instrument of labour relations policy.
Chapter VIII of the LRA affords protection against unfair dismissal and
unfair labour practices. Unlike previous legislative schemes the
protections are specific and detailed, amounting in effect to a codification.
The specific protections provide minima, leaving the balance of
substantive topics arising in the employment relationship to regulation,
resolution and governance by means of collective agreements
accomplished through bargaining, and, if need be, protected industrial
action.
20
77. Before the 1995 legislation there was room for bargains to be struck and
rights to be conferred through the adjudication of unfair labour practices
which were defined broadly to embrace: “any act or omission which in an
unfair manner infringes or impairs the labour relations between an
employer and employee.” Unfair unilateral variations of the terms and
conditions of contracts of employment, given their potential to impact
negatively upon labour relations, could therefore have been stigmatised as
an unfair labour practice, depending also on the circumstances. The 1995
legislation, particularly in its amended form after 2002, dramatically
reduced the scope of the unfair labour practice jurisdiction by codifying the
concept in section 186(2) of the LRA, restricting its application to unfair
conduct related to the provision of benefits, promotion, demotion,
probation, training, suspension, disciplinary action short of dismissal,
contractual rights to reengagement and the detrimental treatment of
whistleblowers. Consequently, the current LRA offers no specific
protection against unilateral variations of terms and conditions of
employment under the unfair labour practice jurisdiction.
78. The outcome of the legislative change is that protection against unilateral
variation must be found either in the common law or in the Constitution.
There is also a measure of procedural protection afforded by section 64(4)
of the LRA, to which I will return presently.
79. Under the common law an employer who unilaterally amends the terms of
the contract of employment will be in breach of contract entitling the
employees to cancel, seek damages or sue for specific performance.
Likewise, disregard by an employer of the terms of a collective agreement
Likewise, disregard by an employer of the terms of a collective agreement
which govern terms and conditions of employment can amount to a
unilateral breach.
80. More difficult is the question of whether a unilateral variation, though falling
outside the statutory code of unfair labour practices, may invite redress under the
constitutional right to fair labour practices. In Mzimnii and Another v
Municipality of Umtata [1998] 7 BLLR 780 (Tk) the High Court held that
the upgrading of posts, while not relating to promotion, demotion or the
provision of benefits, could entail conduct actionable in the High Court in
terms of the constitutional right to fair labour practices. Other courts have
taken the approach that the doctrine of avoidance provides that once a
constitutional right is regulated in detail by statute, persons seeking to
enforce that right are confined to the statutory remedies and may no
longer rely directly on the constitutional provision. In other words, there is
no residual category of constitutionally proscribed unfair labour practices –
see Du Toit et al: Labour Relations Law (4 th Edition, Butterworths, 2003)
@ page 461462 and especially the authorities cited in fn26. This explains
perhaps why the unions have not sought relief on the basis that the
Commissioner’s decision constituted a constitutional unfair labour
practice. And hence I need not decide the issue finally.
21
81. The sole reference to unilateral variation in the LRA, as indicated earlier,
is found in section 64(4), which provides an important clue that the
constitutional and legislative scheme treats contractual variations as
subjects for collective bargaining. The section permits employers or trade
unions who refer disputes over unilateral amendments to a bargaining
council or the CCMA to require the employer not to implement or to
reverse the unilateral variation for the duration of the period mandated by
section 64(1)(a) of the LRA for the purposes of conciliation. If the
employer refuses to comply, or the conciliation period lapses, the
employer may resort without further ado to industrial action as the means
of resisting the unilateral change.
82. The statutory rights to strike and to require a status quo order do not preclude
employees or unions enforcing their contractual rights for damages or
specific performance in the High Court or in the Labour Court in terms of
section 77(3) of the BCEA, read with section 158(a)(iii) and (vi) of the
LRA. The right to specific performance would also entitle parties to seek
urgent relief pendente lite under section 158(1)(a)(i) of the LRA Monyela
and Others v Bruce Jacobs t/a L V Construction (1998) 19 ILJ 75 (LC);
and Grogan: Workplace Law (8 th Edition, Jutas 2004) @ 274. The
difficulty on this score for the applicants in this case is that they seek an
interim interdict pending a review of alleged administrative action or the
resolution of a dispute referred in terms of section 64(4) of the LRA to the
SSSBC. Whereas for the reasons stated they are nonsuited in respect of
the former cause of action, the SSSBC is indeed likely to have statutory or
contractual powers to resolve not only unfair dismissals and unfair labour
contractual powers to resolve not only unfair dismissals and unfair labour
practices but also disputes about the interpretation and application of
collective agreements through arbitration. I do not accept the submission
made by Mr Bruinders that this court lacks jurisdiction to issue an interdict
because the dispute concerns the interpretation or application of a
collective agreement which in terms of section 24 of the LRA is required to
be referred to arbitration. While there may indeed be a dispute about the
interpretation and application of agreement 5/2002, the terms of the
collective agreement are incorporated into the employees’ contracts of
employment, and hence an alleged breach thereof is also justiciable under
section 77(3) of the BCEA. The difficulty though is that in the present
instance no such dispute is pendente lite before this court. And it is not
immediately clear whether one was referred to the SSSBC in terms of
section 24 of the LRA. Assuming though for the purposes of argument that
such was the case, the enquiry moves to a determination of whether there
has indeed been a breach of the employees’ contracts as supplemented
by agreement 5/2002.
83. As I see it, a breach of contract could possibly have occurred in one or two
ways. The first would arise if it were found that agreement 5/2002
expressly or impliedly conferred a right upon the employees to work a 12
22
hour shift. Put differently, an option to work a 12hour shift at his or her
discretion might be a term and condition of each employee’s employment.
The second possibility is that agreement 5/2002 expressly or impliedly
conferred a right upon the employees to be consulted prior to any change
in work practices related to the shift system.
84. I agree with Mr. Bruinders that clause 1 of agreement 5/2002 expressly grants a
right to work 8 hour or 12 hour shifts at the discretion and convenience of the
Commissioner. There is no evidence before me, nor has any argument to such
effect been made, to support a claim that a tacit term exists conferring the right to
work a 12 hour shift. Nor do the regulations imply any such term into the
contract. In short, it was not a term of the contract of employment that employees
working 12hour 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. That this is so is borne out by the description of the shift system as
such in an earlier collective agreement. Clause 3 of agreement 2/2000 provides:
“the employees who currently perform twelvehour shifts will continue with this
work practice ”. Hence, a change in that work practice was not per se a
breach of contract.
85. The next question is whether there was a contractual duty to consult with
the employees or the unions prior to changing the work practice. It will be
the employees or the unions prior to changing the work practice. It will be
recalled that clause 2.2.3 of agreement 5/2002 specifically included a right
to meaningful consultation in relation to the adjustment of arrangements
under the 40 hour flexisystem. Clause 2 generally though is silent on the
duty to consult when implementing the 12 or 8hour shift. Clause 2.2
provides simply that in respect of line activity duties any of the shifts can
be utilized. The Commissioner contends that the complexity around the
flexisystem makes consultation a practical necessity, but that such
constraints do not operate in the context of the 12 or 8 hour shifts and
hence there was no need to agree to meaningful consultation in relation to
them. The structure and text of clause 2 of agreement 5/2002 sustain this
interpretation. Accordingly, I again accept that there was no express
contractual duty to consult before taking the decision to implement the 8
hour shift across the board.
86. When debating the reasonableness or rationality of the Commissioner’s conduct
from the perspective of it being administrative action, Mr WattPringle submitted
that fulfilment of the Commissioner’s duties to take account of the needs and
circumstances of employees, in terms of regulation 31(b), by the very nature of
the duty necessitated consultation before taking the decision to change the shift
system. From this it might also be argued that it would follow that the right to
consultation was an implied term. I however do not believe that the obligation to
23
take account of the needs of employees necessarily requires consultation before
scrapping the 12hour shift. The Commissioner has legitimately subjected his
discretion or prerogative in this regard to the constraints and outcomes of
collective bargaining, which confer on him the right to change the shift system
and to restrict consultation to the practicalities of implementation. It is clear from
the papers that very real practical problems and irrationalities are likely to be
encountered during implementation. Yet, it is equally evident that the
management of SAPS are open to consulting about them and ironing them out.
Moreover, the Commissioner’s conduct aligns with accepted principle and
practice that there is no duty to consult over changes to work practices, which in
itself further supports a finding that no implied or tacit term existed obliging
consultation – A Mauchle (Pty) Ltd t/a Precision Tools v National Union of
Metalworkers of SA and Others (1995) 16 ILJ 349 (LAC).
87. In the premises, I am constrained to conclude that the applicants have failed to
establish the existence of any clear or prima facie established right which the
decision of the Commissioner infringes or interferes with. To recap:
because the Commissioner’s decision is not administrative action, no right
or legitimate expectation to procedural fairness arises, nor has any
contractual, statutory or constitutional right to a fair process been violated.
And, furthermore, there has been no breach of the substantive term of the
contract of employment. As a result, absent a clear or prima facie right the
requirements for an interim interdict have not been met and the application
must be dismissed.
88. I have been persuaded to this conclusion with a measure of reluctance.
88. I have been persuaded to this conclusion with a measure of reluctance.
My decision goes not only against the grain of past progressive
developments in our law of due process, but against compelling policy and
value based arguments, even if superficial, favouring a requirement of
consultation prior to changing work practices affecting employees. The
solution, it would seem to me, lies in conscientious collective bargaining or
the amendment of the statutory code of unfair labour practices to provide
for such. It does not lie in straining the concept of administrative action by
extending it into the domain of private and internal employment
arrangements, collapsing in the process the valid constitutional distinction
between administrative action and labour relations on the basis of a social
expediency no longer necessary or desirable or, for that matter, doctrinally
or textually justified.
89. The idea moreover is not to minimize needlessly the application of the
rules of natural justice in the realm of employment law. Rather it is to
assert, in the interests of orderly, effective government and
entrepreneurship, that the circumscription of the managerial prerogative
by the principles of fairness, in the arrangement sanctioned by the LRA,
the National Economic Development and Labour Council Act 1994 and the
Constitution, is a matter for corporatist regulation and collective
bargaining. The debate about a purely contractual or public law approach
to state contracts is accordingly of less relevance see C. Hoexter:
24
Contracts in Administrative Law (2004) 121(3) SALJ 595. The point is that
the organization of social power is not the exclusive preserve of
administrative law. No matter how one might perceive the limits of
classical contract law, our labour law is constructed upon a voluntarist
premise, leaving statutory compulsion as an exception. And even then,
statutory intervention is itself a product of corporatist negotiations under
the auspices of NEDLAC. There are substantive reasons of policy and
principle that oblige maintaining the integrity of that arrangement, which
might not be best served by judges incorporating into it (effectively by
compulsion) evolving administrative law principles and doctrine.
90. The urgency of the matter was brought into question on account of the
union’s prevarication. My findings, however, allow for some liberality and I
am prepared to regard the matter as semiurgent and to condone non
compliance with the ordinary rules.
91. Taking into account the national importance and complexity of the matter,
as well as the relationship between the parties, I do not consider a costs
order to be justified.
92. Accordingly, I make the following orders:
92.1 The application for urgent relief is dismissed.
92.2 There is no order as to costs.
____________________
J R Murphy
ACTING JUDGE OF THE LABOUR COURT
FOR THE APPLICANT: Adv CE WattPringle and Adv J Joyner
Instructed by Mmoledi Malokane &
Assciates
FOR THIRD RESPONDENT: Adv T Bruinders instructed by the
State Attorney
DATE OF HEARING: 5 September 2005
DATE OF JUDGMENT: 5 October 2005
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