Abstract
The uncertainty surrounding the concept benefit as provided for in section 186(2) of the Labour Relations Act 66 of 1995 was created not by the courts but rather by the legislature. The concept is not defined and clearly has a wide ambit. In previous decisions the courts upheld a restrictive interpretation of benefits to maintain the divide between disputes of interest and disputes of rights and to ensure that issues that should be the subject of negotiation could not become issues that can be decided by an arbitrator. Previously the courts insisted that a benefit was something arising out of a contract or law. In the Apollo case the court had to determine what constitutes a benefit and if a benefit is limited to an entitlement which arises ex contractu or ex lege. The court found that the early retirement scheme was a benefit, although the employee at that stage did not have a contractual entitlement to the benefit and that the benefit was subject to the employer's discretion. What becomes clear from this case is that the unfair labour practice jurisdiction cannot be used to assert an entitlement to new benefits, new forms of remuneration or new policies. The Labour Appeal Court criticizes the distinction between salaries and remuneration drawn by our courts and describes it as artificial and unsustainable. Under the unfair labour practice regime the conduct of the employer may be scrutinized by the CCMA in at least two instances, namely when an employer fails to comply with a contractual obligation, an entitlement or right that an employee may have in terms of a statute, and secondly when an employer exercises a discretion under the contractual terms of a scheme conferring a benefit, including situations where the employer enjoys a discretion in terms of benefits provided in terms of a policy or practice - rights created judicially. This decision places the emphasis on the employer's actions and the unfairness of such acts or omissions.
Highlights
E FourieIn the Apollo case1 the court once again had to determine the content of benefits in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995
An unfair labour practice dispute can be resolved through conciliation and arbitration; disputes about remuneration are excluded from the jurisdiction of the CCMA
According to the Labour Appeal Court the question before the court should not have been whether the commissioner reached a conclusion that a reasonable commissioner could not reach, but whether the second respondent was correct in his ruling that the CCMA did have jurisdiction to adjudicate the dispute
Summary
In the Apollo case the court once again had to determine the content of benefits in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (hereafter the LRA). The distinction between remuneration and benefits often seems unclear, it is an important distinction, as unfair conduct by an employer in relation to the provision of benefits may constitute an unfair labour practice in terms of section 186(2)(a). An unfair labour practice dispute can be resolved through conciliation and arbitration; disputes about remuneration are excluded from the jurisdiction of the CCMA The court in this case firstly had to determine what constitutes a benefit as contemplated by section 186(2) of the LRA, and secondly had to determine if a benefit was limited to an entitlement which arises ex contractu or ex lege, or if it could include a grant in terms of a policy or practice subject to the employer's discretion
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