The more things change...Unilateral changes & the jurisdiction of the Labour Court Quarter 2 2022

By NEIL COETZER AND COURTNEY WINGFIELD, Published in Employment Law

The status quo remedy available to employees or a Union in terms of s64(4) of the Labour Relations Act (66 of 1995) (the LRA) is a curious one, allowing a protected strike to take place within 48 hours of referring such a dispute to the CCMA, unless an employer reverses the unilateral changes implemented by it. The right to strike is acquired before any attempt to resolve the dispute is made by the CCMA, and often before parties can reflect properly on their respective positions.

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A unilateral change to terms and conditions should exist before a Union can avail itself of the status quo remedy in s64(4). This much was made clear by the Labour Court in Cape Clothing Association v SA Clothing & Textile Workers Union & another (2012) 33 ILJ 1643 (LC), where the court found that a Union seeking to invoke the remedy must establish 'both an existing term and condition of employment and the fact of a variation of that term and condition by the employer, in circumstances where the employee has not consented to the variation'.

If often happens, however, that a Union, either through opportunism or ignorance, refers a dispute in terms of s64(4) to the CCMA, even though no unilateral change has taken place. Any strike pursuant to that dispute would, of course, be unlawful and not deserving of any protection under the LRA. But is the employer bound to wait to obtain relief until the CCMA has conciliated a misconceived or ill-advised dispute several weeks later, all the while dealing with an unwarranted strike and suffering damages?

The CCMA has no jurisdiction to determine whether a unilateral change to terms and conditions of employment has taken place, and it has no jurisdiction to grant any relief even if it were to make such a determination. The CCMA is a creature of statute, and its dispute resolution functions are limited to those issues set out in the LRA and other pieces of legislation. Importantly, there is no provision in the LRA entitling the CCMA to determine whether a unilateral change to terms and conditions of employment in terms of s64(4) has taken place.

To protect its rights, an employer must approach the Labour Court to interdict any strike or any action in contemplation or furtherance of such a strike, and have it declared unprotected. The court is granted exclusive jurisdiction to do this by s68(1), read with the provisions of s157 of the LRA. To declare the strike unprotected, the Labour Court must decide whether a unilateral change as contemplated by s64(4) has occurred, as it is an issue incidental to it exercising its powers in s68(1) of the LRA. It is well-established, by a long line of authorities, that the Labour Court has jurisdiction to determine the existence or otherwise of a unilateral change to terms and conditions.

However, two recent judgments of the Labour Court have turned these authorities on their head, leaving practitioners (and the employers involved) reeling. In C. Steinweg Bridge (Pty) Ltd v SATAWU & Others (J126/22, 29 April 2022), the Labour Court was approached by an employer on an urgent basis to obtain declaratory relief that it had not unilaterally changed terms and conditions of employment, and to interdict any intended strike by the Union. The Union in this case had referred a dispute to the CCMA in terms of s64(4), alleging that the employer had unilaterally altered the working hours of 13 of its members. An interim Order was granted by the Labour Court, but on the return day, the court found that it lacked jurisdiction to decide whether a unilateral change had occurred or not, and the Rule nisi was discharged, without any consideration of the merits of the application.

A few days later, in Fraser Alexander (Pty) Ltd v AMCU & Others (J298/22, 4 May 2022), the employer approached the Labour Court for an Order declaring that no unilateral change to terms and conditions of employment had taken place and interdicting any strike which may arise therefrom. In this case, the Union alleged that the employer had altered the terms and conditions of employment of its members when it only paid 50% of a discretionary 13th cheque during December 2020. Without dealing with the merits of the issue, the same court again found that it lacked jurisdiction to decide whether a unilateral change had taken place and, curiously, struck the matter from the roll for that reason, again without considering the merits of the dispute. The court relied on its earlier judgment in C. Steinweg Bridge in support of its decision.

The court's approach to the issues before it in both C. Steinweg Bridge and Fraser Alexander was, with respect, fundamentally flawed. Any notion that the Labour Court does not have jurisdiction to determine whether a unilateral change to terms and conditions has occurred is obviously wrong, and these judgments constitute bad law. Both decisions are the subject of appeal proceedings and are likely to be overturned in due course. That is, however, cold comfort for the employers who will now have to deal with the strikes which will ensue from the court's judgments. In these circumstances, the LRA's purpose of the effective resolution of disputes is severely undermined.

Coetzer is a Partner and Wingfield a Senior Associate with Cowan-Harper-Madikizela.