This is not a fairy tale. Once upon a time there were 13 secretaries working for the government in Bloemfontein. Although employed by the State they each reported to a Judge of the SCA. But the Judges only stayed in Bloemfontein during ‘terms’ and were not there during ‘recesses’. So the SCA secretaries were allowed ‘recess leave’. But this arrangement did not apply to other secretaries reporting to other high court judges. The SCA secretaries justified the extra privilege on the basis that their Judges made extra demands on their time during the terms. This involved paying rent, ‘making sure the Judge’s accommodation is in order, organizing and payment of domestic help, buying groceries, organizing laundry and dry cleaning, payment of utility accounts, personal errands, and even assisting the Judge’s family with personal requirements’.
But the State decided to enforce uniform leave arrangements for all secretaries. So a collective agreement was signed. But the register of the SCA in Bloemfontein did not enforce this arrangement because he feared the wrath of the Judges. Bear in mind that the Judges were not line managers and could not discipline the SCA secretaries. In a real sense they only had sapiential authority over the SCA secretaries. So nothing was done in Bloemfontein until one of the SCA Judges took action to enforce the arrangement.
Forfeiting a benefit
The SCA secretaries referred an unfair labour practice dispute relating to the State’s alleged unfair conduct in depriving them of a ‘benefit’. An SCA Judge who retired in 2002 gave evidence for the SCA secretaries about the practices in Bloemfontein. The arbiter was so star-struck by this witness that he ignored most of the other evidence and decided the SCA secretaries had been unfairly deprived of the recess leave benefit.
In the meantime all secretaries working for judges were transferred to the Office of the Chief Justice (OCJ) and it was decided to apply to the labour court (LC) to review and set aside the award. The LC set aside the award because there was a binding collective agreement that had the effect of scrapping all earlier practices. As no discretion had been exercised the arbiter did not have the right to find against the State.
Differentiation or discrimination
But what about discrimination and a breach of the Employment Equity Act (EEA)? The SCA secretaries argued that their inherent job requirements were not the same as other secretaries who did not work in Bloemfontein. Did this mean that the collective agreement discriminated against them on an arbitrary ground? Assume the inherent job requirements of the SCA secretaries did involve extra personal tasks. Was the value of their work the same as other secretaries? If not this could mean that ‘equal pay’ included the special ‘recess leave’. So this could be regarded as acceptable differentiation and would amount to discrimination on an arbitrary ground. So having failed to prove unfair conduct they might win under the EEA and it is possible that their recess leave will be restored.