2 March 2020 by and Employment Alert

Reviewing a collective agreement?

It is always interesting to find a case where different areas of law collide, bond and diverge. One such matter is Mampane N.O and Others v National Union of Public Service and Allied Workers and Another [2020] 2 BLLR 115 (LAC). In 2011, where the National Lotteries Board (NLC), in response to the Lotteries Act, sought to deploy new staff members to their different provincial offices. This resulted in some employees having to be transferred to different locations. The NLC consulted with the relevant trade unions such as NUPSAW about the deployment of staff and new job

The trade unions involved, including NUPSAW, were satisfied with the methodology, which gave employees three preferential locations of which they could only get one; and most employees chose Gauteng. It was common cause that not all employees could be placed at their preferred locations. A collective agreement to this effect was entered into with the trade unions.

Mokgatlha was one of the employees who could not get her preferred location. She was chosen to be deployed to Kwa-Zulu Natal. Because she was unhappy with her deployment, she appealed the decision of her relocation to the Commissioner (CEO). On 7 December 2015, her appeal was considered and rejected by both the Commissioner and the Human Capital Manager. On 26 January 2016, Mokgathla submitted a memo complaining to the NLC’s Human Resources Assistant about the decision to relocate her to Kwa-Zulu Natal. A further meeting was held by the Commissioner and the Human Capital Manager where it was reaffirmed that her relocation could not be deviated. On the same day a letter was then sent by the Human Capital Manager instructing Mokgatlha to report to the Kwa-Zulu Natal offices on 1 April 2016. She subsequently failed to appear at the offices on 1 April 2016, resulting in the Commissioner on 5 April 2016 instructing her that should she fail to report for duty at the Kwa-Zulu Natal offices on 11 April 2016 it will be taken that she has repudiated her contract of employment and that the NLC will therefore be within its rights to terminate her contract of employment.

NUPSAW, on behalf of Mokgatlha, challenged the decision taken by the Commissioner and the Human Capital Manager under section 158(1)(h) of the LRA on the basis that the NLC is an organ of state and that its decisions could be reviewed under not only the LRA but also in terms of PAJA. Because disputes over the transfer of employees are not specifically dealt with in the LRA, they cannot be arbitrated under the LRA by the CCMA unless the transfer constitutes unfair labour practice thus the only course of action for Mokgathla was to seek a legality review. The Labour Court found in favour of Mokgatlha on the basis that the Commissioner had delegated her decision making power to the Human Resources Manager.

Aggrieved by the Labour Court’s findings, the Commissioner appealed to the Labour Appeal Court (LAC). The LAC found that the Commissioner’s decision was lawful and legal as she had personally reconsidered the appeal and was nonetheless empowered by statute to delegate her powers. Further, it found that Mokgatlha was bound by the transfer collective agreement. The LAC’s reasoning was that the collective agreement was valid in terms of section 213 of the LRA and therefore was binding on Mokgatlha under section 23(1)(b) of the LRA. Further, the LAC found that this was a consequence of one belonging to a trade union in which one willingly transfers their rights and entrusts that union to enter into beneficial agreements on their behalf. Thus, a collective agreement cannot be reviewable because it is taken that the union has received a mandate from all its members to enter into the agreement. However, the LAC raised the point that had Mokgatlha been a non-party member she could have challenged the transfer on the basis that she was not bound by the collective agreement.

In conclusion, what the LAC effectively found is that a collective agreement entered into by a union is binding upon all its members and cannot be reviewed and set aside by an employee who is a member of the trade union which is a party to the collective agreement. If an employee fails to act within the terms of the agreement, be it a transfer or the like, it will be well within the employer’s rights to terminate the employees’ contract of employment. Employees should be careful as to how and what their trade unions agree to.

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