Wage differential: Mutual interest dispute or a dispute about benefits?

In other words, is a differential in wages granted to members of a recognised minority trade union (NEHAWU) but not to members of another, albeit unrecognised minority  trade union (PWU), a dispute in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA] i.e. does it constitute a benefit?  Or is it a mutual interest dispute? If it was as couched then the CCMA has jurisdiction. If not, then the CCMA does not have jurisdiction vis-a vis dispute as framed.

The point whether or not the dispute was about a benefit, and in turn, whether the CCMA had jurisdiction, was pertinently raised in the CCMA hearing.

A CCMA commissioner held that jurisdiction existed whilst  on review, the Labour Court found the opposite. The matter went on appeal to the LAC.

The controversy fell to be determined what was the true character of the dispute because the critical contestation between the two parties was simply whether the dispute is really about a benefit.

If it is, the CCMA has jurisdiction, if not, the CCMA does not have  jurisdiction. This was the sum of the dispute before the LAC in the matter between PELINDABA WORKERS UNION v SA NUCLEAR ENERGY CORPORATION and others decided on the 25th June 2020 ( neutral citation pending)

A unanimous court held that  a dispute over a wage increase cannot be anything other than a dispute of interest.and quite rightly the CCMA lacked jurisdiction.

Failure on the part of commissioner to determine the nature of the dispute

I will preface this section with a note that the full banch made scathing remarks about the conduct and reasoning of the commissioner who held that the CCMA had jurisdiction.

The test for the true dispute is well established. For example in Coin Security Group (Pty) Ltd v Adams & others (2000) 21 ILJ 924 (LAC ) it was held at   para[16] that “in conducting that enquiry, a court looks at the substance of the dispute and not at the form in which it is presented, and that the characterization of a dispute by a party is not necessarily conclusive.”

The facts in brief: following the conclusion of collective bargaining ( no collective bargaining took place in respect of band D).which resulted ina collective agreement between SANEC and NEHAWU, acting for the majority, granting  its members a 7.5% increase in respect of bargaining unit A, which consisted of workers in bands A up to C3. Bargaining unit “B” included bands C4 and D. SANEC ‘extended’ the 7.5 % to C4 band, but not to band D made up of PWU members. D band employees got the lesser increase of 5.5%. The PWU invoked section 186(2)(a) in order to bring the grievance about this differentiation within the jurisdiction of the CCMA, and the allegation was made that the conduct of SANEC was an unfair labour practice.

It is trite that the law on what constitutes benefits as contemplated by section 186(2)(a) of the LRA was crystalised in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (Apollo),    (2013) 34 ILJ 1120 (LAC), relevantly at para   [50] – [51] , namely it had to be an existing entitlement or advantage or privilege that an employee is entitled to as  

‘[50] “ as a right or granted in terms of a policy or practice subject to the employer’s discretion.

[51]  Where an employee wants to use the same remedy in relation to the provision of benefits such an employee has to show that he or she has a right or entitlement sourced in contract or statute to such benefit.”  

Saber Ahmed Jazbhay

1st July 2020

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