Saturday workdays at Home Affairs must be referred to conciliation‚ says top court

Source: Times Live, 04/05/2017

The Constitutional Court has dismissed an appeal by the Department of
Home Affairs about whether employees can refer a “mutual interest”
dispute to the bargaining council for conciliation.


The dispute concerned the changing of employees’ work hours to include
Saturday work.


The department felt this was an operational matter that cannot be
referred to conciliation and therefore would not result in a protected
strike.


The employees‚ on the other hand‚ felt this was a dispute of “mutual
interest” and if resolution failed‚ they were entitled to a protected
strike to resolve it.


The court said it was not for the conciliator to pronounce on whether
the dispute was one of “rights” or one of “interest”.


South Africa’s labour law dispensation makes a distinction between
“disputes of rights” and “disputes of interest”.


“Disputes of rights”‚ such as dismissal disputes‚ are finally resolved
by arbitration in the bargaining council‚ or adjudication in the
labour court.


“Disputes of interest”‚ such as wage disputes and working conditions‚
are resolved by the parties and may involve striking or locking out if
the parties cannot agree to settle the dispute.


The matter began in March 2015‚ when two unions in the department
referred a dispute of alleged mutual interest to the General Public
Service Sectoral Bargaining Council for conciliation.


The department had proposed changes in February 2015 to the scheduling
of working hours for employees to introduce Saturday workdays.


The unions opposed the proposed changes. Despite this‚ the employer
issued a circular confirming that the plan would come into effect in
March 2015.


At the bargaining council‚ the department successfully challenged the
council’s jurisdiction to conciliate on the basis that the alleged
dispute did not involve a matter of mutual interest.


The council also held that the dispute was merely about a work
practice that fell within the employer’s prerogative.


The unions took the bargaining council’s decision on review to the
Labour Court. The court held that the dispute involved a matter of
mutual interest and had to be conciliated.


Leave to appeal to the Labour Appeal Court was refused and the
application to the Constitutional Court was a final step in the
process.


In a unanimous judgment‚ Justice Johan Froneman said some might have
harboured the hope that this judgment would clarify the distinction
between the so-called “rights disputes” and “interest disputes” in
labour law and under the Labour Relations Act (LRA)‚ and to what
extent the right to strike depended on that distinction.


“The bottom line here will disappoint. It is this: disputes about
matters of mutual interest referred to conciliation must be
conciliated‚ be they ‘rights’ or ‘interest’ disputes.”


He said it was not the function of the conciliator to pronounce on
whether the dispute was one of “rights” or one of “interest”.


Froneman said “interest” and “rights” disputes were both matters of
mutual interest.


“Whether the matter is a dispute of interest or right‚ and therefore
whether it may legitimately form the subject of a strike‚ is not
relevant for the determination of whether it may trigger conciliation
under the LRA.”


Froneman said work practices and their alteration by management lay at
the heart of employment relationships and a dispute about them would
qualify as matters of mutual interest capable of being referred to
conciliation under the LRA