Establishing jurisdiction in respect of unfair labour practices relating to the provision of ‘benefits’
Author K Newaj
Affiliations: Lecturer, Department of Mercantile Law, University of Pretoria, BCom (Law) NMMU HDip (Labour Law) WITS LLB UNISA, LLM University of Pretoria, LLD University of Pretoria. Lecturer, Department of Mercantile Law, University of Pretoria.
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 29 – 53
This article considers the factors to be taken into account by arbitrators in determining whether or not they have jurisdiction to consider disputes referred to the Commission for Conciliation, Mediation and Arbitration as cases of unfair labour practices relating to the provision of benefits. While the Labour Appeal Court’s decision in Apollo Tyres South Africa (Pty) Ltd v CCMA sought to resolve the controversy surrounding benefits disputes, it is opined that the court erred in merging the enquiry into establishing whether the subject matter of the dispute constitutes a ‘benefit’ with the enquiry into fairness of the employer’s conduct. This article delineates these two enquiries, and provides a clear indication of the factors that must be considered by arbitrators in establishing whether the matter at issue constitutes a ‘benefits’ dispute as envisaged by section 186(2)(a) of the Labour Relations Act 66 of 1995. The article further seeks to provide a definition of ‘benefits’. In order to address these objectives, three fundamental principles which have dominated the inquiry by the judiciary in its attempt to resolve the uncertainties surrounding this area of the law, are discussed. These are: whether ‘benefits’ fall within the statutory definition of ‘remuneration’; whether a wide interpretation of the term ‘benefits’ will erode the divide between disputes of right and disputes of interest; and an evaluation of what constitutes a pre-existing benefit.