North West Provincial Legislature and another v National Education, Health and Allied Workers Union

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Sutherland JA, Musi JA and Savage AJA
• Judgment Date: 21 June 2023
• Citation: 2023 JDR 2609 (LAC)
• Hearing Date: 18 May 2023
• Docket Number: JA17/2022
• Court: Labour Appeal Court

Savage AJA:

Introduction

[1]

This appeal, with the leave of the Labour Court, is against the judgment and orders of the Labour Court (per Moshoana J) in terms of which the appellant, the

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North West Provincial Legislature (NWPL), was interdicted and restrained from deducting any remuneration from members of the respondent, the National Union of Education, Health and Allied Workers Union (NEHAWU) until it had complied with section 34 of the Basic Conditions of Employment Act [1] (BCEA).

[2]

From 16 November 2020 until at least 15 December 2020, employees of the appellant engaged in unprotected strike action. On 16 November 2020, the Secretary of the NWPL (Secretary) issued a communique to staff members informing them that, given the unprotected industrial action, the principle of no work no pay would apply to those employees who did not attend work. On 27 November 2020, the Labour Court interdicted the strike, declaring it unlawful. On 14 December 2020, the Secretary issued a further communique to staff that the principle of no work no pay was to be implemented from 15 December 2020.

[3]

Despite the communiques issued, remuneration was paid to all striking employees by the NWPL, apparently because the NWPL failed to halt its payroll run to striking workers. Following this, the NWPL advised the respondent employees that it would deduct the remuneration paid to employees who had been on strike from their salaries over a number of months.

[4]

This caused a dispute between the parties and on 13 January 2021, the Secretary agreed to suspend deductions until negotiations between the parties had been concluded. After several meetings, on 18 April 2021 the parties appointed a task team to attempt to resolve the issue. The task team was unable to do so. After negotiations failed, on 2 November 2021, the Secretary informed the respondents that the NWPL would proceed to deduct three working days’ remuneration each month from employees’ remuneration until 15 April 2022. In response, NEHAWU approached the Labour Court on an urgent basis under section 77(3) of the BCEA seeking, in part A of the application, urgent interim relief interdicting and/or restraining the NWPL from effecting and/or causing to effect any deductions from the remuneration of the respondent employees on the basis of their alleged participation in an unlawful strike. This was pending the hearing of part B, in which an order was

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sought inter alia that the deductions made were in contravention of the BCEA and unlawful. The Labour Court granted final interdictory relief in the matter and it is that order which is the subject of this appeal.

Judgment of the Labour Court

[5]

The Labour Court found that section 34(1) of the BCEA [2] applies to any deduction from an employee’s remuneration, unless the legislated exceptions exist, namely that the employee agrees in writing to the deduction, or the deduction is permitted by law, collective agreement, court order or arbitration award. [3] Since no written agreement had been concluded with the employees, and no law permitted a deduction from the salary of any employee, the deduction of remuneration by the NWPL was not permitted. The Labour Court found there to be no conflict between section 67(3) [4] of the Labour Relations Act (LRA), [5] which provides for no work no pay during a protected strike, and section 34 of the BCEA. Consequently, the deductions made, or those intended to be made, were unlawful and the NWPL was interdicted from deducting remuneration from the salaries of NEHAWU’s members until it had complied with section 34 of the BCEA.

On appeal

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[6]

In this appeal, the NWPL contended that section 34 of the BCEA does not apply where the principle of no work no pay finds application; that the no work no pay principle constitutes a law as contemplated in section 34(1)(b), with the result that there has been compliance with the BCEA; that the recovery of unearned salaries does not amount to self-help, with set-off applicable; that the Labour Court’s reliance on section 67(3)(b) was misplaced; and that the respondent employees are not entitled to be unlawfully enriched.

[7]

The respondents oppose the appeal on the basis that section 34 bars any deduction from an employee’s remuneration unless one of four statutory exceptions are met, regardless of whether the no work no pay principle applies. The constitutional rights of workers are protected by section 34, which includes that the recovery of monies the employer contends are owed to it occurs through a judicial process or with consent, which negates self-help. Furthermore, there is no merit in the proposition that the law of set-off applies. Consequently, it was submitted, the appeal must fail.

Discussion

[8]

Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. The BCEA gives effect to and regulates this right inter alia by establishing and enforcing basic conditions of employment, [6] which include that an employer is to pay remuneration to an employee not later than seven days after the completion of the period for which the remuneration is payable or of termination of the contract of employment. [7] Remuneration is defined in both the BCEA and the LRA as –

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‘. . .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’. [8]

[9]

In seeking to advance economic development and social justice, the BCEA also seeks to give effect to obligations incurred by South Africa as a member state of the International Labour Organisation (ILO). [9] This includes the ILO’s Protection of Wages Convention, 1949, [10] Article 8 of which states that:

‘1.

Deductions from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award.

2.

Workers shall be informed, in the manner deemed most appropriate by the competent authority, of the conditions under which and the extent to which such deductions may be made.’

[10]

Section 34 of the BCEA is the national provision which expressly bars deductions from an employee’s...