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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

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 anothers
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,

Students name: Sarvesh Nair

Table of contents
1

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

21
Scope of protection...........................................................................6-7
3 Defining a benefit.........................7-9
4 Recent case law..........................................................................................9-12
41
Analysis of Judgment....................................................................12-14
5 Conclusion.....................14-15
6 Bibliography...............15-17

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 writers 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 analyzed.
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 1950s. 6 The concept of unfair
labour practice was introduced by the 1979 amendments to the previous Labour Relations

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.

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 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 courts jurisdiction and therefore justiciable, while disputes of interest were
left to negotiation and the power play skills of the parties.12

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.
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.

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 practices 15 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
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 LRA 21 is to give effect to

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.
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).

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 tailormade 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
(b)

to an employee;

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
21

employee having made a protected disclosure defined in that Act.

Scope of protection

The 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
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).

protection against unfair labour 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

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)

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 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 not41 while remuneration is always a term and condition of the
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.
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.

employment contract.42 The court concluded that benefits do not include remuneration and
an employees commission for instance, is part of remuneration, and therefore not a benefit.43
Similarly, in the Northern Cape Provincial Administration v Hambridge NO 44 and later in
HOSPERSA v Northern Cape Provincial Administration 45 (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, the
latter being subject to arbitration whilst the former is subject to the collective bargaining
process or in other words, strike action.50

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.

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


is any economical advantage...that positively affects the employees 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 Arbitrations 53 (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 employers 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
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
employers 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.

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 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 CCMA 59
(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

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.

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).

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
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
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.
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.

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 legislatures 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 employers discretion does not by itself deprive the CCMA
of jurisdiction to scrutinise employer conduct. 72
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
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.
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.

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 writers opinion, expressed distain at the manner 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
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.

4 1 Analysis of the Judgment


Labour Courts are responsible for the interpretation of the Labour Relations Act 82 (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

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 Hoosens
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 1995
83 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 596 603

exist in contract or in law.86 In short, Apollos 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 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 entitlements 91
and existing advantages or privileges92 that are subject to the discretion of the employer.93 The

86 Apollo at par 20.


87 Apollo at par 48; See also the courts ratio mentioned supra.
88 2004 25 ILJ 248 (LAC).
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 596 603
90 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
91 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.

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 thats 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

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 decisions 100 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
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.

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 employers 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 employee's claim is
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/resourelibrary/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)

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

106 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-unfairlabour-practice/ (accessed 2015-15-04)

BIBLIOGRAPHY

LEGISLATION
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 Laws 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
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-unfairlabour-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)