A CRITICAL DISCUSSION OF UNFAIR LABOUR PRACTICES CONCERNING

BENEFITS WITH REFERENCE TO THE LATEST CASE LAW

by

SARVESH NAIR

ASSIGNMENT

Submitted in partial fulfilment of the requirements for the subject

Individual Employment Law (JML 501)

for the degree

MAGISTER LEGUM

in

LABOUR LAW

in the

FACULTY OF LAW

at the

NELSON MANDELA METROPOLITAN UNIVERSITY

March 2015

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Declaration by student:

I hereby declare the following:

This is my own work and I have not copied any parts thereof from anyone else;

I have referenced all direct quotations and paraphrased explanations of another’s work

I understand that plagiarism is a violation of the university disciplinary code and that should I be guilty thereof that I will be subject to any disciplinary steps that the university may institute against me,

Student’s name: Sarvesh Nair

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Table of contents

1 Introduction……………………………………………………...….…………….....4

2 An unfair labour practice....................…………....................................……..4-6

2 1 Scope of protection...........................................................................6-7

3 Defining a benefit……………….……………...……….….…….........…..........7-9

4 Recent case law..........................................................................................9-12

4 1 Analysis of Judgment....................................................................12-14

5 Conclusion…….…….……………………….….…………...….............….…14-15

6 Bibliography…….………………………………......………………......……..15-17

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1 Introduction

The definition of the word benefit has been the subject of at least three Labour

Appeal Court (LAC) decisions.1 The expression “as clear as mud” comes to mind

when one wishes to definitively define the term benefit. Unsurprisingly, we now

have a fourth decision defining the term in Apollo Tyres South Africa (Pty) Ltd v

CCMA2 delivered on 21 February 2013. Needless to say, for justiciability3 involving

benefits, the dispute must be about the interpretation or application of pre-existing

benefits while, at the same time, the benefit in question must fall within the

somewhat muddled meaning ascribed by the courts to the word benefit.4 It is

writer’s humble opinion that in order to critically discuss unfair labour practices

concerning benefits, the concept of ‘unfair labour practice’ must be unpacked in

order to appreciate the terms etymology.5 Thereafter, a concise discussion on the

relevant provisions relating to benefits will be discussed. Finally, an in-depth case

analysis of current case law from the LAC will also be analysed.

2 An unfair labour practice

A definition of unfair labour practices as propounded by the industrial court has

been used to develop the whole system of unfair dismissals since the late 1950’s. 6

The concept of unfair labour practice was introduced by the 1979 amendments to

the previous Labour Relations Act 28 of 19567 and was initially defined as including

any conduct by employers, employees or their organisations which the Industrial

Court regarded as falling within the definition of the term.8 In developing unfair

labour practice jurisprudence, a distinction was drawn between a dispute of right

1 HOSPERSA and Another v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC), Gauteng Provinsiale Administrasie v Scheepers and Others (2000) 7 BLLR 756 (LAC) and GS4 Security Services (SA) (Pty) Ltd v NASGAWU and Others (unreported case no DA3/08).2 (2013) 5 BLLR 434 (LAC)3 Capable of being settled by law or by the action of a court.4 Basson, Christianson, Dekker, Garbers, le Roux, Mischeke and Strydom Essential Labour Law 5ed (2009) ch 10; See also Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) ch 5.5 The study of the origin of words and the way in which their meanings have changed throughout history.6 Basson et al Essential Labour Law ch 10; See also Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context ch 5.7 Labour Relations Act 28 of 1956.8 Du Doit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law 6ed (2015) 539; This also marked the beginning of equity based labour jurisprudence.

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and disputes of interest.9 The former concerns an infringement, application or

interpretation of existing rights embodied in a contract of employment, collective

agreement or statute.10 The later concerned the ‘creation of fresh rights’ such as

higher wages or modifying existing collective agreements.11 Disputes of right were

seen as falling within the court’s jurisdiction and therefore justiciable, while disputes

of interest were left to negotiation and the power play skills of the parties.12

Prior to 1995 the definition of unfair labour practices was open ended.13 The 1995

legislation however provides for a definition.14 The Labour Relations Act 66 of 1995

(LRA) moved away from the open-ended notion of unfair labour practice and set out

to give effect to the constitutional right to fair labour practices15 by codifying the

main kinds of unfair labour practices distilled from the body of case law that

preceded it.16 In 2002 a list was incorporated into the LRA as section186 (2).17 By

virtue of the fact that the word ‘involving’ is used, unfair labour practices are limited

to those mentioned in the list and arbitrators or the Labour Court must therefore

apply these provisions to disputes.18 The consequence is that the definition is no

longer open-ended or in other words is now a numerus clausus.19

9 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context ch 5; see also Doit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law 6ed (2015) 539; Basson et al Essential Labour Law 193-194.10 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context ch 5; see also Doit et al Labour Relations Law 6ed (2015) 539; Basson et al Essential Labour Law 193-194.11 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context ch 5; see also Doit et al Labour Relations Law 6ed (2015) 539; Basson, et al Essential Labour Law 193-194; these are but two examples.12 Rycroft and Jordaan A Guide to South African Labour Law 1992 2nd ed (Juta & Co) at 168-169.13 Du Doit et al Labour Relations Law 539; See also Basson et al Essential Labour Law 5ed (2009) ch 10.14 S 186(2) of the Labour Relations Act 66 of 1995 (hereafter the LRA)15 S 23(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution).16 Du Doit, Godfrey et al Labour Relations Law 539.17 The Labour Relations Act 66 of 1995.18 Provisions such as the transfer of employment contracts are not included in the list.19 Basson et al Essential Labour Law 191; Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context ch 5.

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Section 23(1) of the Constitution provides for an open ended right and states that

“[e]veryone has the right to fair labour practices.”20 One of the purposes of the

LRA21 is to give effect to the right to fair labour practices.22 The LRA established a

new specialised regime for the resolution of labour disputes of all employees. 23 The

legislature specifically created tailor-made rules and structures to act as a

mechanism or one stop shop for all matters employment related.24

Section 186 (2) of the LRA states the following:‘Unfair labour practice’ means any unfair act or omission that arises between an

employer and an employee involving—

(a) unfair conduct by the employer relating to the promotion, demotion,

probation (excluding disputes about dismissals for a reason relating to

probation) or training of an employee or relating to the provision of benefits

to an employee;

(b) the unfair suspension of an employee or any other unfair disciplinary action

short of dismissal in respect of an employee;

(c) a failure or refusal by an employer to reinstate or re-employ a former

employee in terms of any agreement; and

(d) an occupational detriment, other than dismissal, in contravention of the

Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the

employee having made a protected disclosure defined in that Act.’

2 1 Scope of protectionThe act or omission must be perpetrated by an employer.25 The employer must

have done something or failed to do something which he ought to do.26 By

implication in the provision, it is clear that only persons who are already in

employment as opposed to job seekers, enjoy protection against unfair labour

20 The Constitution; The Bill of Rights also contain other rights which apply in the field of labour relations, such as the right to equality, privacy, freedom of trade, occupation and profession and just administrative action.21 Labour Relations Act 66 of 1995 (hereafter referred to as the LRA).22 See both the Preamble and s 1(a) of the LRA.23 There are exclusions to the scope of protection contained in section 2 of the LRA. The LRA does not apply to the National Defence Force and the State Security Agency.24 See s 1 of the LRA.25 S 186 (2) of the LRA.26 NEWU v CCMA (2003) 24 ILJ 2335 (LC); NEWU v CCMA (2007) 28 ILJ 1223 (LAC).

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practices.27 Even though section 186(2)28 only mentions employee in the singular,

this does not prevent employees from seeking remedies as a group with or without

the assistance of their trade union.29

Unfair labour practices operate only in one direction and is effectively confined to

employer conduct.30 It does not offer any remedy to employers against employees

or trade unions.31 By implication, it also means that a trade union cannot commit an

unfair labour practice as against an employer.32 Former employees are also

excluded from protection except in cases relating to “a failure or refusal by an

employer to reinstate or re-employ a former employee.”33

3 Defining a benefit

The term benefit is not defined in the Labour Relations Act (LRA) and has plagued

courts since 1995.34 Section 186(2)(a) of the LRA, does not appear to be

problematic, but much ink has been spilt on the interpretation of the term.35 An

employer is guilty of an unfair labour practice if it commits any form of unfair

conduct relating to a provision of benefits to an employee.36 As mentioned supra,

unfair labour practices are disputes of rights rather than interests. The need to

clarify the term benefit is important in determining the correct avenue to resolve a

dispute. Particularly so, as section 65(1)(c) of the LRA provides that employees

may not strike over issues that may be referred to arbitration. A dispute over

benefits may be referred to arbitration. By implication, if benefits is given a wide

27 Du Doit et al Labour Relations Law 541; Job seekers do not enjoy protection as none of the forms of employer conduct included in the definition is relevant to their situation.28 Labour Relations Act 66 of 1995 (hereafter the LRA)29 Basson et al Essential Labour Law ch 10.30 Basson et al Essential Labour Law 192; See also Bhorat and van der Westhuizen “A Synthesis of Current Issues in the Labour Regulatory Environment” 2008 DRPU 1-36.31 Basson et al Essential Labour Law 192.32 Basson et al at 192 states that a trade union is also an employer, in this capacity they are also, in principle, in a position to commit unfair labour practices.33 S 186(2)(c) of the Labour Relations Act 66 of 1995.34 Patel “The Benefit Saga: Is it Finally Resolved?” (undated) http://www.labourguide.co.za/most-recent/1607-the-benefits-saga-is-it-finally-resolved# (accessed 2015-15-04)35 Basson et al Essential Labour Law 203; A benefit means a non wage or non salary benefit. A benefit is something extra, apart from remuneration. It is a supplement to remuneration which is received for no additional work done. Examples of benefits include: Subsidies, leave, medical aid contribution, motor vehicle allowances, security allowances, transport allowancesEtc.36 S 186(2)(a) of the LRA; See also Du Doit et al Labour Relations Law 558.

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meaning and taken to include remuneration,37 it would mean that employees may

not strike by virtue of section 65(1)(c) over wages and salaries.38

In Schoeman & Another v Samsung Electronics SA (Pty) Ltd39 (hereafter referred to

as Samsung) the Labour Court determined that a benefit was something extra,

apart from remuneration.40 The court went on to say that a benefit “is often a term

and condition in a contract and often not”41 while “remuneration is always a term

and condition of the employment contract.”42 The court concluded that benefits do

not include remuneration and an employee’s commission for instance, is part of

remuneration, and therefore not a benefit.43

Similarly, in the Northern Cape Provincial Administration v Hambridge NO44 and

later in HOSPERSA v Northern Cape Provincial Administration45 (hereafter referred

to as HOSPERSA) the Labour Court and the LAC held that an acting allowance

could not be said to concern a benefit even if it was beneficial to the employee.46 An

acting allowance was a wage claim as opposed to a claim relating to a benefit.47

Moreover, it was held that the term benefit in the definition of an unfair labour

practice only includes benefits ex contractu and ex lege (benefits that already exist

in contract or in law) but does not include the hope of creating new benefits. 48

Therefore although the term benefit is not defined in the LRA there was consensus

that the term benefits exclude remuneration.49 This approach was adopted in order

to maintain the separation between a dispute of interest and one of mutual interest,

37 S 213 of the LRA defines remuneration as “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the state and remunerate has a corresponding meaning.”38 The more we include within the scope of ‘benefits’, the less employees would be able to strike about because those matters may be referred to arbitration; see also Basson et al Essential Labour Law 203.39 1997 10 BLLR 1364 (LC) 1368.40 ibid.41 Schoeman & Another v Samsung Electronics SA (Pty) Ltd 1997 10 BLLR 1364 (LC) 1368.42 Schoeman & Another v Samsung Electronics SA (Pty) Ltd 1997 10 BLLR 1364 (LC) 1368.43 Ibid.44 (1997) 7 BLLR 698 (LC).45 (2000) 21 ILJ 1066.46 Northern Cape Provincial Administration v Hambridge NO(1997) 7 BLLR 698 (LC) par 17.47 HOSPERSA v Northern Cape Provincial Administration(2000) 21 ILJ 1066. 48 HOSPERSA v Northern Cape Provincial Administration(2000) 21 ILJ 1066 par 8-9.49 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 597.

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the latter being subject to arbitration whilst the former is subject to the collective

bargaining process or in other words, strike action.50

An alternative approach to distinguish a benefit from remuneration is to assess

whether there is “any economical advantage...that positively affects the employee’s

actual cash take-home pay...”51 If it does, then it “will constitute remuneration rather

than a benefit.”52

In Protekon (Pty) Ltd v Commission for Conciliation Mediation and Arbitrations53

(hereafter referred to as Protekon) the Labour Court took a different view to

Samsung and stated that to call a benefit something extra than remuneration goes

too far.54 The court held that the right to strike need not be curtailed as disputes

concerning a demand by employees that certain benefits be granted is a matter for

the collective bargaining process while disputes concerning the fairness of an

employer’s conduct is subject to arbitration.55

Our courts have generally held that the term benefit in the definition in unfair labour

practice only includes benefits ‘ex contractu and ex lege’ therefore only disputes of

right about already existing benefits can be heard by the Commission for

Conciliation Mediation and Arbitrations (CCMA).56 If the dispute is about the

application of a pre-existing policy or right (such as a right to leave or the right to an

acting allowance or a transport allowance) it is clear that it is a dispute of right and

50 Ibid.51 Du Doit et al Labour Relations Law 561; The basis for the distinction is that remuneration should be seen as compensation or work done regardless of whether it takes the form of wages or other elements if the package, such as medical aid provisions. 52 Du Doit et al Labour Relations Law 561.53 Protekon (Pty) Ltd v CCMA (2005) JOL 14544 (LC); Where the employee challenged the employer’s decision to withdraw travel concessions and substitute them with a disproportionate increase in remuneration. The court disagreed that the employee only had recourse to s 186(2) where the cause of action was in contract law and concluded that where employers enjoy discretion in terms of a benefit scheme or policy, the CCMA was not deprived of jurisdiction to scrutinise such conduct.54 Protekon (Pty) Ltd v CCMA (2005) JOL 14544 (LC) par 19-22.55 Protekon (Pty) Ltd v CCMA (2005) JOL 14544 (LC) par 19-22; See also Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 597.56 Basson et al Essential Labour Law 204; See also Bhorat and van der Westhuizen “A Synthesis of Current Issues in the Labour Regulatory Environment” 1 – 36.

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would fall within the scope of benefit.57 If the dispute relates to the creation of a new

right and therefore amounts to a dispute of interest, it will not be a benefit, and the

parties may strike or lock-out over the matter.58

4 Recent case Law

The latest contribution from the Labour Appeal Court (LAC) regarding the

interpretation of the term benefits can be found in Apollo Tyres South Africa (Pty)

Limited v CCMA59 (hereafter referred to as Apollo). Apollo is worthy of note as it is

of binding force for the Commission for Conciliation, Mediation and Arbitration

(CCMA) and Labour Courts (LC) in terms of the principle of stare decisis.60

The salient facts commence with the employer, Apollo Tyres (Pty) Ltd, initiating an

early retirement scheme with entry into the scheme being subject to the discretion

of management. The notice informing employees of the scheme stated that the

successful applicant would receive two months additional pay and an ex-gratia

payment. An employee named Hoosen, aged 49 at the time, applied for entry but

her application was refused as she was informed that she needed to be 55 years

old in order to apply. Hoosen resigned and whilst serving her notice, she referred

an unfair labour practice dispute to the CCMA. The second respondent, acting

under the auspices of the CCMA, ruled in her favour.61 Apollo's case came before

the LAC as an appeal from the Labour Court.62

57 Basson et al Essential Labour Law 204.58 Basson et al Essential Labour Law 204; Basson et al further states that in practice one should expect commissioners to adopt a combination of the two approaches mentioned supra i.e to focus on the meaning of benefit and to bear in mind the distinction between a rights dispute (a dispute about the contents of an existing right) and an interest dispute (where there is no existing right or one party wants to establish a new right, which the other party wants to oppose).59 (2013) 5 BLLR 434 (LAC); See also Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 597.60 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 597; Stare decisis translates to “stand by a previous decision” and is the doctrine that a lower courts are bound by higher court decisions (precedents).61 Apollo Tyres South Africa (Pty) Limited v CCMA (2013) 5 BLLR 434 (LAC) par 1-8 (hereafter referred to as Apollo).62 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 597.

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The crisp issue before the court was whether an employee who alleges that his or

her employer committed an unfair labour practice in relation to the provision of

benefits will only have a remedy if such employee can prove that she has a right or

entitlement to the benefits ex contractus or ex lege. Put differently, does an

employee have a remedy in terms of section 186(2)(a) of the LRA if the benefit is to

be granted subject to the discretion of the employer.63

The ratio decidendi64 of the court was as follows: The LAC overturned previous

decisions such as HOSPERSA65 which distinguished between remuneration and a

benefit66 and which required a benefit to exist ex contractu or ex lege.67 The court

held that the distinction postulated by the previous approach was artificial and

unsustainable because the definition of remuneration in terms of section 213 of the

LRA is wide enough to include benefits.68 The court noted that while in many

instances employers enjoy a range of discretionary powers in terms of their policies

and rules, section 186(2)(a) is the legislature’s way of regulating employer conduct

by super imposing a duty of fairness irrespective whether that duty exists expressly

or implicitly in the contractual provisions that establishes the benefit.69 Moreover,

the court gave credence to authorities which steered away from HOSPERSA and

held that item 2(1)(b) of Schedule 770 created a statutory right, an ex lege right, not

to be subjected to an unfair labour practice relating inter alia to the provision of

benefits.71 The court continued and stated that the existence of an employer’s

discretion does not by itself deprive the CCMA of jurisdiction to scrutinise employer

conduct. 72

63 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 598.64 The ratio decidendi is the point in a case which determines the judgment or the principle which the case establishes or the reason or the rationale for the decision.65 HOSPERSA v Northern Cape Provincial Administration(2000) 21 ILJ 1066.66 Cases such as Schoeman & Another v Samsung Electronics SA (Pty) Ltd 1997 10 BLLR 1364 (LC) and Northern Cape Provincial Administration v Hambridge NO (1997) 7 BLLR 698 (LC) drew a distinction between remuneration and a benefit.67 Apollo at par 20.68 Apollo at par 25.69 Apollo at par 45.70 The LRA.71 Apollo at par 37.72 Apollo at par 45.

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Musi AJA in the LAC postulated a new approach73 as follows:

“In my view, the better approach would be to interpret the term benefit to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion. In my judgment "benefit" in section 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion. In as far as Hospersa, GS4 Security and Scheepers postulate a different approach they are, with respect, wrong.”74

The court noted that had it followed HOSPERSA, by implication it would mean that

the employer could act with impunity as Hoosen in casu would not have a remedy

in the civil courts due to no contract coming into being.75 Neither would she have a

remedy in terms of section 186(2)(a) of the LRA as she does not have a contractual

right to the benefit, lastly, the court noted, that being a single employee she would

not have the right to strike.76

The LAC then stated that in a case like Hoosen's, the notion that the benefit must

be based on an ex contractu or ex lege entitlement would render section 186(2)(a)

sterile.77 The LAC court concluded that “[i]t is clear that there is no acceptable, fair

or rational reason why she was not allowed to participate in the scheme [and] the

employer did not exercise its discretion fairly.”78 The employer, Apollo Tyres,

“committed an unfair labour practice by not allowing [Hoosen] to go on early

retirement” the resultant being that the employer committed an unfair labour

practice.79 The court rightly so, in writer’s opinion, expressed distain at the manner

73 Own emphasis added; See also Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 601; Ebrahim contends that the labour courts have outlined a new approach, different to that previously used to determine the term benefits as contained in s 186(2) of the LRA.74 Apollo at par 50.75 Apollo at par 48.76 Apollo at par 48.77 Apollo at par 48.78 Apollo at par 59.79 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 601.

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in which the employer treated Hoosen by stating that “[t]he appellant ought to be

mulcted in costs.”80 The appeal was accordingly dismissed.81

4 1 Analysis of the Judgment

Labour Courts are responsible for the interpretation of the Labour Relations Act82

(LRA) and should seek guidance from domestic and international experience.83 On

the question of whether the term benefits includes remuneration, Apollo rightly held

that the distinction drawn by the courts between benefits and remuneration is

artificial and not sustainable, because the definition of remuneration in section 213

of the LRA is wide enough to include benefits.84 This finding by Apollo accords with

international practice even though it does not make reference to the practice in its

finding.85

On the question of whether a benefit needs to exist ex contractu or ex lege to be

justiciable, the court in Apollo rightly rejected the approach in HOSPERSA which

required the benefit to exist in contract or in law.86 In short, Apollo’s reasoning was

that no other remedy would avail itself and being a single employee, strike action

would not be an option.87 The reasoning of the court in Apollo finds support, all be it

in the minority judgment in Department of Justice v CCMA88 where the court held

that 2(1)(b) (now section 186(2)(a) of the LRA) was designed for situations where

neither the employment contract nor the common law provided a remedy to the

80 Apollo at par 62 and 63; The court held that the behaviour of the employee amounted to shifting the goalposts in an attempt to find an acceptable explanation as to why Hoosen’s application was rejected. The employers behaviour inter alia included cancelling a farewell party, intimidating Hoosen if she were to obtain a legal opinion on issues of managerial discretion and telling her to leave when documents were served on Apollo Tyres (Pty)Ltd; The meaning of mulct is to extract money from (someone) by fine or taxation. 81 Apollo at par 63.82 66 of 199583 NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC) par 33-34. 84 Apollo at par 25; S 213 of the LRA defines remuneration as “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State.”85 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 60386 Apollo at par 20.87 Apollo at par 48; See also the courts ratio mentioned supra.88 2004 25 ILJ 248 (LAC).

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employee.89 The requirement that the benefit must exist ex contractu or ex lege

would leave a single employee destitute and without a remedy, this could have

never been the intention of the legislature and it is contrary to the purpose of the

LRA.90

A concern that a claim to a new benefit could be justiciable as an unfair labour

practice is misplaced. According to Apollo the term benefit refers only to existing

rights or entitlements91 and existing advantages or privileges92 that are subject to

the discretion of the employer.93 The definition as revised in Apollo refers only to

existing benefits and not to a claim to new benefits and it is submitted that this

effectively removes that concern.94

Lastly, in Protekon the LC held that employees had an election to engage the

employer in the collective bargaining arena instead of trying to prove unfairness as

required by section 186(2)(a),95 and that the LRA does not preclude an employee

from doing both at the same time.96 According to Ebrahim “the glaring omission in

Apollo is that it did not explain whether or not an employee has that election with

regards to a benefit dispute.”97 Du Toit et al however contends that where

employees claiming a benefit that’s subject to collective bargaining, they may refer

it to arbitration, or elect to exercise their right to strike instead, but they may not do

both simultaneously.98

89 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 60390 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 60391 To which the employee is entitled ex contractu or ex lege; Apollo at par 50.92 To which an employee is entitled as a right or granted in terms of a policy or practice; Apollo at par 50.93 Apollo at par 50.94 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 603.95 Of the LRA.96 Protekon at par 25.97 Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596 606.98 Du Doit et al Labour Relations Law 563.

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5 Conclusion

The definition of the word benefit has been the subject of at least four Labour

Appeal Court (LAC) decisions.99 The LAC in Apollo broke ranks with its previous

decisions100 and opted to follow Protekon.101 In essence Apollo held that disputes

over the provision of benefits may fall into two categories. First, where the dispute

concerns a demand by employees that their benefits are granted or reinstated

irrespective of whether the employer's conduct in not agreeing to grant or in

removing the benefit is considered to be unfair.102 This kind of dispute can be

settled by way of industrial action. Secondly, the dispute may concern the fairness

of the employer's conduct which then must be settled by way of adjudication.103 In

the end it was held that “the better approach would be to interpret the term benefit

to include a right or entitlement to which the employee is entitled (ex contractu or ex

lege including rights judicially created) as well as an advantage or privilege which

has been offered or granted to an employee in terms of a policy or practice subject

to the employer’s discretion.” 104

In the light of Apollo, Bargaining Councils or the CCMA will first determine whether

the employee is attempting to assert an entitlement to new benefits, to new forms of

remuneration or to new policies not previously provided for by the employer.105 If the

99 HOSPERSA and Another v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC), Gauteng Provinsiale Administrasie v Scheepers and Others (2000) 7 BLLR 756 (LAC) and GS4 Security Services (SA) (Pty) Ltd v NASGAWU and Others (unreported case no DA3/08) and Apollo Tyres (Pty) Ltd v CCMA (2013) 5 BLLR 434 (LAC).100 The court in Apollo at par 24 indicated that the decisions defining a benefit were influenced by "policy considerations in order to keep the distinction between disputes of right and conflicts of interests pure and separate compartments".101 (2005) 26 ILJ 1105 (LC); Matshekga “Occupation Specific Dispensation Disputes Are they Unfair Labour Practice Relating to Benefits disputes or Not” Undated http://www.phsdsbc.org.za/resoure-library/publications/# (accessed 2015-15-04)102 Matshekga “Occupation Specific Dispensation Disputes Are they Unfair Labour Practice Relating to Benefits disputes or Not” Undated http://www.phsdsbc.org.za/resoure-library/publications/# (accessed 2015-15-04)103 ibid. http://www.phsdsbc.org.za/resoure-library/publications/# (accessed 2015-15-04)104 Apollo at par 50.105 Matshekga “Occupation Specific Dispensation Disputes Are they Unfair Labour Practice Relating to Benefits disputes or Not” Undated http://www.phsdsbc.org.za/resoure-library/publications/# (accessed 2015-15-04)

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employee's claim is so based, the CCMA and/or Bargaining Council do not have the

power to determine the dispute.106 The employee must embark on industrial action

in order to persuade the employer to grant him or her the new benefit, new forms of

remuneration or introduce new policies.107

Employers should therefore tread cautiously when exercising their discretion and

should do so carefully when deciding to grant benefits which arise neither from

employees contracts nor from legislation but from their own policies or practices.108

6 BIBLIOGRAPHY

LEGISLATION106 Matshekga “Occupation Specific Dispensation Disputes Are they Unfair Labour Practice Relating to Benefits disputes or Not” Undated http://www.phsdsbc.org.za/resoure-library/publications/# (accessed 2015-15-04)107 ibid. http://www.phsdsbc.org.za/resoure-library/publications/# (accessed 2015-15-04)108 Niemand “Meaning of Benefits Expanded Under Unfair Labour Practice” (undated)http://showme.co.za/port-elizabeth/business/meaning-of-benefits-expanded-under-unfair-labour-practice/ (accessed 2015-15-04)

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Basic Conditions of Employment Act 75 of 1997

Employment of Educators Act 76 of 1998

Labour Relations Act 28 of 1956

Labour Relations Act 66 of 1995

The Constitution of the Republic of South Africa, 1996

BOOKS

Basson, Christianson, Dekker, Garbers, le Roux, Mischeke and Strydom Essential Labour Law 5ed (2009) Labour Law Publications Centurian

Currie and De Waal The Bill of Rights Handbook 6ed (2014) Juta & Co Cape Town

Currie The Promotion of Administrative Justice Act: A Commentary 2ed (2007) Siber Ink Johannesburg

Du Doit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law 6ed (2015) Lexis Nexis Durban.

Govindjee and Vranken (eds) Introduction to Human Rights Law (2009) LexisNexis Durban

Grogan Workplace Law 10ed (2009) Juta & Co Claremont

Martin and Law A Dictionary of Law 5ed (2002) Oxford New York

Rycroft and Jordaan A Guide to South African Labour Law 1992 2ed Juta & Co Claremont

Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) Pearson

JOURNAL ARTICLES

Levy “The Unfair Labour Practice and the Definition of Benefits: Labour Law’s Tower of Babel” 2009 30 ILJ 1451

Ebrahim “The Interpretation to be Accorded to the Term ‘Benefits’ in Section 186(2)(a) of the LRA Continues: APOLLO TYRES SOUTH AFRICA (PTY) LIMITED V CCMA (DA1/11) [2013] ZALAC 3” 2014 17 PELJ 596

Bhorat and van der Westhuizen “A Synthesis of Current Issues in the Labour Regulatory Environment” 2008 DRPU 1

TABLE OF CASES

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Apollo Tyres South Africa (Pty) Limited v CCMA (2013) 5 BLLR 434 (LAC)

Department of Justice v CCMA 2004 25 ILJ 248 (LAC)

Gauteng Provinsiale Administrasie v Scheepers and Others (2000) 7 BLLR 756 (LAC)

GS4 Security Services (SA) (Pty) Ltd v NASGAWU and Others (unreported case no

DA3/08)

HOSPERSA v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC)

NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC)

Northern Cape Provincial Administration v Hambridge NO (1997) 7 BLLR 698 (LC)

Protekon (Pty) Ltd v CCMA (2005) JOL 14544 (LC)

Schoeman & Another v Samsung Electronics SA (Pty) Ltd (1997) 10 BLLR 1364 (LC)

WEBSITES

South African Legal Information Institute http://www.saflii.org (accessed 2015-04-10)

Matshekga “Occupation Specific Dispensation Disputes are they Unfair Labour Practice Relating to Benefits Disputes or Not” Undated http://www.phsdsbc.org.za/resoure-library/publications/# (accessed 2015-15-04)

Niemand “Meaning of Benefits Expanded Under Unfair Labour Practice” (undated)http://showme.co.za/port-elizabeth/business/meaning-of-benefits-expanded-under-unfair-labour-practice/ (accessed 2015-15-04)

Patel “The Benefit Saga: Is it Finally Resolved?” (undated)http://www.labourguide.co.za/most-recent/1607-the-benefits-saga-is-it-finally-resolved# (accessed 2015-15-04)

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