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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which looks at the new Employment Equity Regulations, noting what they say about Equal Pay for Equal Work. We also look at three new cases: The first looks at the highly publicised, recent Constitutional Court ruling on affirmative action in the Barnard case. The second looks at when an employee can interdict retrenchment.The third case looks at when a lock-out survives a strike, in the context of the current NEASA/ SEIFSA/ NUMSA wage dispute in the metal industry.
This public newsletter is a free edited version of the subscriber newsletter.
Can merit ever trump an affirmative action policy?
Nine years after applying for promotion - and four major court battles later - Renate Barnard has been given a final answer by the Constitutional Court: the failure to promote her was a rational decision in accordance with a constitutionally sound affirmative action policy.
This decision was contested first in the Labour Court in Solidarity obo Barnard v SA Police Services (LC case no. JS455/07 dated 24/02/2010). The Labour Court held that she had been unfairly discriminated against, and that the provisions of the Employment Equity Act and an employment equity plan must be applied in accordance with the principles of fairness and with due regard to the affected individual's constitutional right to equality and the need for operational efficiency. It is not appropriate, the court said, to apply numerical goals set out in an employment equity plan without considering all relevant factors. That approach is too rigid. Due consideration must be given to the particular circumstances of individuals potentially adversely affected.
This decision was appealed to the LAC in South African Police Services v Solidarity obo Barnard (JA24/2010)  ZALAC 31 (2 November 2012), and the LAC reversed the LC's decision. It held that it is misconstrued to implement restitutionary measures contained in the EEA and an employment equity plan, as being subject to an individual's right to equality. The employer is the only party answerable regarding service delivery matters, and it is not open to a court to 'second guess' a decision that not filling a post will or will not compromise service delivery.
The LAC's decision was then appealed to the SCA in Solidarity obo Barnard v SAPS (165/2013)  ZASCA 177 (28 November 2013). The SCA - in a unanimous judgment of 5 judges -overturned the LAC' view and found that there had been unfair discrimination. It held that the mechanical application of targets falls foul of the EEA; a flexible and 'situation sensitive' approach is required. The SCA held that the fact that no appointment is made does not necessarily mean no discrimination took place.
And so finally, the Constitutional Court considered the matter in South African Police Service v Solidarity obo Barnard  ZACC 23. The majority judgment supported by 7 judges (5 other judges wrote minority judgments) started with the constitutional requirements for an affirmative action measure: The measure must-
- target a particular class of people who have been susceptible to unfair discrimination;
- be designed to protect or advance those classes of persons; and
- promote the achievement of equality.
The CC found that the SAPS affirmative action policy complied with these requirements. Further, the National Commissioner exercised his discretion not to appoint Ms Barnard rationally and reasonably and in accordance with the criteria in the affirmative action measure, in pursuit of employment equity targets envisaged in section 6(2) of the Act.
Interdicting the employer from dismissing
The prescribed dispute resolution procedure in the LRA is that an employee faced with a disciplinary hearing should make use of the dispute procedures prescribed by the Act. That is to continue with the hearing and, should he or she be dismissed, to refer an unfair dismissal dispute to the CCMA or to the relevant bargaining council. That is the prescribed route. The Labour Appeal Court has stated clearly in Booysen v Minister of Safety and Security and others (LAC 09/08, judgment date 1 October 2010) (2011) 32 ILJ 112 (LC) at paragraph  that while the Labour Court has jurisdiction to interdict any unfair conduct, including intervening in disciplinary action, such an intervention should only be exercised in exceptional cases. The Labour Court in De Klerk v Project Freight Group CC (C647/2014)  ZALCCT 44 (14 August 2014) was faced with an unusual case. The parties embarked on a retrenchment consultation process in terms of section 189 of the LRA. In the course of that consultation process the employee, who was legally represented, made a written request for information. The employer, represented by an employers' organisation (ESOSA) refused to provide the information. The employee then sought legal advice, which was that he should refer a 'disclosure of information' dispute to the CCMA in terms of section 16 of the LRA. He did so, and at the same time again wrote to the employer and to the employers' association, asking for an undertaking that, pending the resolution of that dispute by the CCMA, the employer should not take any further steps.
No such undertaking was forthcoming from the employer. Instead, the employers' organisation sent the employee's attorney an email refusing to give the undertaking. The employee, faced with retrenchment, then launched this application, asking the court to suspend the consultation process pending the resolution of the 'disclosure of information' dispute that he had referred to the CCMA.
ESOSA had expressed the view that the financial information requested was not relevant in the light of the reasons it had given for the retrenchment. ESOSA also argued that the employee was not entitled to the information and that the CCMA did not have jurisdiction to entertain that referral. It was argued that Section 16(2) of the LRA (which states that an "an employer must disclose to a trade union representative all relevant information that will allow the trade union representative to perform effectively the functions referred to in section 14(4))" meant that disclosure did not have to be made to an individual employee.
The court rejected this argument. It said that section 16 has to be read in the light of s 189(1)(d) (which requires consultation with an individual employee if there is no trade union) - those changes require that the words "trade union" should be replaced with the word "employee" in the context of the operational requirements consultation.
The court was satisfied that the employee had followed the prescribed route in referring the dispute to the CCMA. If the relief he was seeking pending the resolution of that dispute was not granted, the whole consultation process would be rendered meaningless. The court said "it cannot be said that the parties are engaged in a meaningful joint problem-solving exercise when the employer simply refuses to provide information that may be relevant."
The lessons of this case: An individual employee who is not represented by a trade union in retrenchment consultations is entitled to information that will make those consultations a meaningful, joint problem-solving exercise. If the employer refuses to disclose this information, the employee should refer the matter to the CCMA. Having followed the correct procedure, the Labour Court will be willing to interdict the employer from continuing with the retrenchments until the CCMA dispute is resolved.
When a lock-out survives a strike
An urgent interdict was applied for to stop the continuing lockout of NUMSA members by certain members of NEASA (National Employers Association of South Africa), in order to compel them to accept the employers' demands regarding a new wage agreement, as opposed to the agreement concluded in the Metal and Engineering Industries Bargaining Council ('the MEIBC') between SEIFSA and NUMSA. The case is reported as National Union of Metalworkers ("NUMSA") obo Members v NEASA & others (J2082-14)  ZALCJHB 340 (8 September 2014).
Both NEASA and NUMSA are parties to the MEIBC. Negotiations to amend the main agreement for the industry commenced in March and on 30 May 2014 NUMSA referred a dispute to the council. NEASA was a party to those negotiations. The dispute could not be resolved and NUMSA issued a notice of its intention to commence protected strike action on 1 July 2014. The following day NEASA issued a notice of its intention to lockout employees participating in the action until such time as the unions agreed to its demands.
On 29 July - after a violent 4-week strike - a three-year agreement settling the dispute was concluded between all the unions participating in the negotiations, including NUMSA, and all the employer organisations in the negotiations, except for NEASA and the Border Industries Employers' Association ('BEIA'). NUMSA's view was that the settlement agreement ended the dispute which it had referred. However, NEASA, which was not a party to the settlement, denied that the agreement settled its dispute with NUMSA, because NEASA's demands remained on the table. The day before the settlement agreement was concluded, NEASA gave notice of its intention to continue to lockout NUMSA members employed by its members.
After the conclusion of the settlement agreement, steps were taken to formally adopt it as a collective agreement concluded under the auspices of the MEIBC. This required a ballot, and following the ballot result, NUMSA advised NEASA that the continued lockout by its members was unlawful and sought an undertaking from NEASA that it would be lifted so that its members could tender their services. The refusal to end the lock-out resulted in NUMSA's application for an interdict.
The Labour Court could find no support for the proposition that the bargaining council's constitution makes provision for automatically binding the parties to the council to a collective agreement they were not a party to. The court concluded by saying that until such time as the collective agreement is extended to non-parties by the Minister in terms of section 32 of the LRA or unless NEASA accedes to the agreement, neither it nor its members are bound by the provisions of the agreement. Consequently, NUMSA could not insist, for the time being, that NEASA is not entitled to pursue a protected lockout in support of its own demands.
The lesson of this case is that a settlement agreement reached by a bargaining council does not automatically end the dispute one of its members has with the union. A lock-out to end that dispute is legal. More than this, a settlement agreement, until extended by the Minister to non-parties in terms of s 32 of the LRA, allows non-parties to lock-out the union's members despite the agreement being reached in the bargaining council.
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