Concourt dismisses department’s appeal on conciliation

THE Constitutional Court has dismissed an appeal by the Department of Home Affairs on whether employees can refer a “mutual inte dispute to the bargaining council for conciliation.

The dispute concerned the changing of employees’ work hours to include Saturday work. The department felt this was an operational matter that could not be referred to conciliation and therefore could not result in a protected strike.

The employees‚ on the other hand‚ felt this was a dispute of “mutual interest” and if resolution failed‚ they were entitled to a protected strike to resolve it.

The matter began in March 2015‚ when two unions in the department referred the proposed changes in working hours to include Saturdays to the General Public Service Sectoral Bargaining Council for conciliation.

The unions opposed the proposed changes, but the department issued a circular confirming the plan would come into effect in March 2015. At the bargaining council‚ the department successfully challenged the council’s jurisdiction to conciliate on the basis that the dispute did not involve a matter of mutual interest.

The council also held that the dispute was merely about a work practice that fell within the employer’s prerogative.

In a unanimous judgment‚ Justice Johan Froneman said some might have harboured the hope that this judgment would clarify the distinction between “rights disputes” and “interest disputes” in labour law‚ and to what extent the right to strike depended on that distinction. “The bottom line here will disappoint. It is this: disputes about matters of mutual interest referred to conciliation must be conciliated‚ be they ‘rights’ or ‘interest’ disputes.” — TMG Digital