Mutual interest: Includes dispute of right

1 Comment

1. 

   GilesFiles on May 3, 2017 at 9:18 pm

   Department of Home Affairs v Public Servants Association and Others

   CCT 148/16 Date of hearing: 28 February 201

   MEDIA SUMMARY

   The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

   On 28 February 2017 at 10h00, the Constitutional Court will hear an application for leave to appeal against the judgment and order of the Labour Court, delivered on 22 September 2015. The applicant’s application for leave to appeal to the Labour Appeal Court was dismissed on 7 June 2016.

   On 6 February 2015, the applicant, the Department of Home Affairs (DHA) proposed changes to the working hour schedule of its employees (new model). In terms of the new model, employees would work one hour less on weekdays, but then be expected to work on Saturdays from 08h00 to 13h00 on a rotational basis (two Saturdays per month). The effect of this was that the total amount of hours worked was left unchanged by the new model, but the workweek was extended to include Saturdays. The DHA adopted the position that the new model was up for consultation with no need for collective bargaining. The respondent unions were indeed afforded an opportunity to consult with their members before responding to this proposal. The unions expressed opposition to the new model, claiming that it should be subject to collective bargaining.

   Pursuant to section 134 of the Labour Relations Act 66 of 1995 (LRA), the unions referred a dispute of mutual interest to the Bargaining Council for conciliation. The unions claimed, amongst other things, that working hours be subject to negotiation between the parties and be structured in such a manner that every employee be given at least two days off per week. The dispute was subsequently set down for conciliation by the Bargaining Council. The DHA raised a preliminary challenge to the jurisdiction of the Bargaining Council on the basis that the dispute did not involve a matter of mutual interest in terms of section 64(1) of the LRA. The Commissioner upheld this challenge. The Commissioner found that the process that was taking place between the DHA and the unions was consultation and that consultation does not mean consensus. Importantly, the Commissioner found that the employer had the prerogative to regulate working hours and shift changes, which was merely a work practice. The matter is therefore not a matter of mutual interest and the Council therefore lacks jurisdiction in this matter.

   The unions applied to the Labour Court to review and set aside the Commissioner’s ruling regarding jurisdiction. On review, the Public Servants Association (PSA) submitted that the jurisdictional ruling of the Commissioner was incorrect because it interpreted the term “mutual interest” narrowly, which is inappropriate. The PSA reasoned as follows: the term “mutual interest’ is not defined in the LRA, but appears in the definition of a strike, in the context of limiting the right to strike to matters of mutual interest. This limits the constitutionally protected right to engage in strike action, which means that the term “mutual interest” should be given the widest possible meaning to best give effect to the constitutional right without unduly limiting it. The Labour Court reviewed and set aside the jurisdictional ruling, and ordered that the dispute of mutual interest be enrolled for conciliation. Leave to appeal to the Labour Appeal Court was denied by the Labour Court and Labour Appeal Court.

   On appeal to the Constitutional Court, the DHA argues that three questions stand to be decided: firstly, the institutional role of a conciliating commissioner in mutual interest disputes where the underlying dispute relates to the protected nature of an intended strike; secondly, the correctness of the ruling given by the Commissioner; and thirdly, the correct approach to the interpretation of the term “matters of mutual interest”. The DHA contends that the Labour Court misconstrued the matter. It submits that the real issue before the Bargaining Council was whether the dispute was a dispute of right or a dispute of interest and that it is self-evident that the dispute was a matter of mutual interest.

   The unions oppose the granting of leave to appeal because there are, in their view, no prospects of success when taking into account that the DHA has conceded that the matter was one of mutual interest. Moreover, the unions argue that the DHA created a “new” case before this Court, which also lacks reasonable prospects of success. The new issue is whether any strike action contemplated in respect of the new model dispute would be unprotected by virtue of the provisions of section 65(1) of the LRA, which provides that employees may not participate in a strike if the issue in dispute can be referred to arbitration or the Labour Court. The unions submit that there is no basis for this argument. Because of the DHA’s conduct the unions are seeking a punitive cost order.

   The Department of Public Service and Administration filed an application for leave to intervene, asserting that it has a direct and substantial interest in the matter by virtue of its overall responsibility for managing employment matters for all national departments. It seeks to give context to the dispute by further information about the background events leading up to the referral of the dispute and, on the basis of this, to argue that the true nature of the dispute is one capable of resolution by adjudication and hence not a matter of “mutual interest” that can be resolved by collective bargaining.