Department of Home Affairs v Public Servants Association and Others

In February 2015, the Department of Home Affairs (DHA) proposed changes to work scheduling to introduce Saturday workdays. The DHA maintained that the proposal was open to consultation but not collective bargaining. Three public sector unions (Public Servants Association, National Union of Public Service and Allied Workers, and National Education Health and Allied Workers Union) opposed the changes and contended they should be subject to collective bargaining. When no agreement was reached, the DHA issued a circular confirming the new proposal would take effect on 23 March 2015. The unions referred the dispute as a matter of mutual interest to the General Public Service Sectoral Bargaining Council for conciliation in March 2015. At the conciliation hearing on 2 April 2015, the DHA challenged the Bargaining Council's jurisdiction, arguing the dispute did not involve a matter of mutual interest. The panellist upheld the objection and found the Bargaining Council lacked jurisdiction. The unions took this decision on review to the Labour Court, which was successful. The Labour Court directed the Bargaining Council to enroll the dispute for conciliation by a different conciliator. Leave to appeal to the Labour Appeal Court was refused, and the DHA then applied for leave to appeal to the Constitutional Court.

• Whether a dispute about changes to work scheduling constitutes a 'matter of mutual interest' capable of being referred to conciliation under the Labour Relations Act
• Whether a conciliator has jurisdiction to conciliate disputes about work practices and their alteration by management
• Whether the efficacy of conciliation depends on a prior characterisation of the dispute as a 'rights dispute' or 'interest dispute'
• Whether the matter raises important issues of principle warranting leave to appeal to the Constitutional Court
• Whether the Department of Public Service and Administration should be granted leave to intervene at a late stage

The application for leave to appeal was dismissed. The application by the Department of Public Service and Administration to intervene as second applicant was dismissed with costs.

Disputes about matters of mutual interest referred to conciliation must be conciliated, regardless of whether they are characterized as 'rights disputes' or 'interest disputes'. It is not the function of a conciliator under the Labour Relations Act to pronounce on whether a dispute is one of 'rights' or one of 'interest'. Work practices and their alteration by management lie at the heart of employment relationships and disputes about them qualify as matters of mutual interest capable of being referred to conciliation under the LRA. The distinction between 'rights' and 'interest' disputes is relevant for determining whether strike action may be protected, but this is not relevant for determining whether a matter may trigger conciliation under the LRA. A conciliator's function under the LRA is to attempt conciliation and, if that fails, to certify that the dispute has not been resolved.

The Court noted that to say simply that a 'dispute of right' cannot be the subject of a protected strike may be misdirected, indicating that the proscription on strikes is contained in section 64(4) of the LRA rather than in a broad categorization of disputes. The Court observed that after the expiry of the statutory conciliation period, unions would have been entitled to strike even if certification was not forthcoming. The Court commented that the term 'mutual interest' serves to define the legitimate scope of matters that may form the subject of collective agreements, matters which may be referred to the statutory dispute-resolution mechanisms, and matters which may legitimately form the subject of a strike or lock-out. The Court noted that normally each party pays its own costs in a labour matter.

This case clarifies important principles regarding the conciliation process under the Labour Relations Act. It establishes that the distinction between 'rights disputes' and 'interest disputes' is not relevant for determining whether a dispute about a matter of mutual interest may be referred to conciliation. The judgment emphasizes that disputes about work practices and their alteration by management constitute matters of mutual interest that must be conciliated under the LRA. It reinforces the functional role of conciliators under the LRA, which is to attempt conciliation rather than to make preliminary jurisdictional determinations about the nature of the dispute as a 'rights' or 'interest' dispute. The case provides clarity on the scope of conciliation in the South African labour law framework and prevents employers from avoiding the conciliation process by characterizing disputes in a particular manner.