Labour Law Blog


The Labour Court’s Jurisdiction under the Basic Conditions of Employment Act

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In the case of Amalungelo Workers ‘Union and Others vs Philip Morris South Africa (Pty) Limited and Another [2019] ZACC 45 (CC), the Union and 75 of its members claimed their employer Philip Morris South Africa (Pty) Ltd and Leonard Dingler (Pty) Ltd, have in contravention of section 34 of the Basic Conditions of Employment Act (“BCEA”), deducted tax in respect of company cars from their salaries.

Based on this allegation, the Union instituted proceedings in the Labour Court for an order compelling Philip Morris South Africa (Pty) Ltd to refund them for the deducted amounts and sought an interdict restraining them from continuing to make the deductions in the future.

The Labour Court raised the question of jurisdiction mero motu and called on the parties to argue the issue.

The Labour Court after hearing argument held that it lacked the jurisdiction to directly enforce the provisions of the BCEA, unless such provisions form part of contractual terms in section 77(3).

The Labour Court found that unless the claim was based on a breach of contractual terms, it could not adjudicate the dispute acting as a court of first instance and accordingly, dismissed the claim.

The Unions subsequent application for leave to appeal and a petition to the Labour Appeal Court were also dismissed.
The Union approached the Constitutional Court with an application for leave to appeal, wherein the Constitutional Court had directed parties to file written submissions.

The Constitutional Court found that s 77(3) of the BCEA gives the Labour Court exclusive jurisdiction to matters arising from the BCEA. The Labour Court has jurisdiction “in respect of all matters” arising from the BCEA. The only exception is that s 77(3) gives the Labour court concurrent jurisdiction with the civil courts in matters concerning employment contracts.

The Constitutional Court emphasised with reference to section 39(2) of the Constitution that a court is duty-bound when interpreting legislation to promote the objectives of the Bill of Rights. This is achieved by choosing meaning that avoids limiting fundamental rights.

The Constitutional Court concluded that s 77 of the BCEA was designed to promote access to the Labour Court in relation to claims based on the BCEA.

The Constitutional Court held that the Labour Court has the power to determine disputes relating to the compliance with the BCEA, except for the specific functions of labour inspectors.

The Constitutional Court concluded that all claims to which the BCEA applies, fall within the exclusive jurisdiction of the Labour Court. The dispute was remitted to the Labour Court to adjudicate the lawfulness of the deductions.

A proper reading of s 77 is that save for a few exceptions, the Labour Court has exclusive jurisdiction over all disputes and claims arising from the BCEA.

The Labour Court’s jurisdiction according to the Constitutional Court, therefore, includes the power to order compliance with the BCEA.

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