In the previous article we discussed recent developments is case law relating to disputes about ‘benefits’. We pointed out that such disputes that would previously have been referred to the Labour Court because it related to remuneration, may now be referred to the CCMA on the basis that the employer has exercised its discretion unfairly. But there is another potential obstacle that needs to be considered – this is the argument that the CCMA does not have the jurisdiction to arbitrate on so-called ‘disputes of interest’.
Our labour law dispensation makes a distinction between a ‘disputes of right’ and ‘disputes of interest’. In the case of a dispute of right, the basis of an employee’s claim is vested in a legal or contractual right. Such a right can be enforced through the civil courts, the Labour Court or the CCMA (in some instances). A dispute of interest, on the other hand, is not based on any existing right – here employees or their unions approach the employer in order to establish a new right. If the employer does not want to give employees what they want and the matter remains unresolved, then the employees may exercise their right to strike after following the appropriate procedures. They cannot have their wishes enforced through the CCMA or Labour Court. A single employee would have no recourse whatsoever, because only two or more employees can strike.
So, where an employee alleges that he/she has been unfairly deprived of a ‘benefit’, is this not a dispute of interest? In other words, where the employee’s claim is not based on an existing right, could the employer argue that the CCMA and Labour Court lack jurisdiction?
In the Labour Court case of Trans-Caledon Tunnel Authority v CCMA & others the court made an important distinction. The judge pointed out that disputes of interest are limited to situations where employees want to establish a new right or benefit. The unfair labour practice provisions cannot be used to assert an entitlement to new benefits, new forms of remuneration or new policies not previously provided by the employer. However, where there is a claim about the unfair conduct of the employer in relation to the existing employment structure or conditions of employment, existing policies or past practice, it could be referred to the CCMA as an unfair labour practice relating to benefits.
In the Trans-Caledon case the employee succeeded with a claim in respect of a performance bonus scheme that had been more favourable to existing employees than new employees. Employees could likewise succeed with claims in respect of other benefits (such as a travel allowance, housing allowance, education allowance, access to social benefit funds or other schemes) on the basis that the employer has exercised its discretion unfairly in not awarding them those benefits. The fact that they do not have a legal right to the benefit, would not be a bar to such a claim. Employees would have access to the CCMA as long as they can show that that the benefit they allege they have been unfairly deprived of, is based on an existing employment structure or condition of employment, existing policy or practice of the employer.
While the removal of barriers and the broader interpretation of the definition of ‘benefits’ has brought about more clarity, it is likely to lead to a significant increase in unfair labour practice disputes being referred to the CCMA.
Jan Truter of www.labourwise.co.za
Labourwise is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or email@example.com