SAMWU and Another v SA Local Government Association and Others (C411/2007) [2010] ZALC 32; (2010) 31 ILJ 2178 (LC) ; [2010] 8 BLLR 882 (LC) (3 March 2010)

SAMWU and Another v SA Local Government Association and Others (C411/2007) [2010] ZALC 32; (2010) 31 ILJ 2178 (LC) ; [2010] 8 BLLR 882 (LC) (3 March 2010)

The court held that the transfer of primary health care services from municipalities to the Department triggered section 197 of the LRA, resulting in the automatic substitution of the Department as employer for affected employees. This default position could only be varied by a valid agreement under section 197(6) with the unions, who were the exclusive bargaining partners. The Department's attempts to secure agreements directly with individual employees after the transfer were invalid, as the unions' agreement was required. The relief sought for future transfers was refused as hypothetical, and the declaratory relief sought for past transfers was refused on discretionary grounds, as no...

Citation
[2010] ZALC 32
Parties
Applicant: SAMWU; Applicant: IMATU; Respondent: SA Local Government Association; Respondent: MEC for Health, Western Cape; Respondent: Those municipalities listed in Schedule 'A'; Respondent: Those persons listed in Schedule 'B'
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
3 March 2010
Case Number
C411/2007
Procedural Posture
Civil Application / Opposed Motion for Declaratory Relief
Outcome
Application dismissed. No order as to costs.
Judges
Van Niekerk
Legal Topics
Section 197 Transfer, Collective Bargaining, Declaratory Relief, Variation of Employment Terms
Labour Law Civil Procedure Section 197 Transfer Collective Bargaining Declaratory Relief Variation of Employment Terms

Case Brief

Summary, issues, holding and outcome

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Parties

SAMWU

Applicant

IMATU

Applicant

SA Local Government Association

Respondent

MEC for Health, Western Cape

Respondent

Those municipalities listed in Schedule 'A'

Respondent

Those persons listed in Schedule 'B'

Respondent

Procedural Posture

Civil Application / Opposed Motion for Declaratory Relief

Legal Issues

  1. 1 Whether written agreements concluded between individual employees and the Department for transfer of employment are valid without union agreement under section 197(6) of the LRA.
  2. 2 Whether future transfers of employment must occur under section 197(2) unless a valid section 197(6) agreement is concluded.
  3. 3 Whether the unions are the exclusive bargaining partners for section 197(6) agreements.

Ratio Decidendi

The court held that the transfer of primary health care services from municipalities to the Department triggered section 197 of the LRA, resulting in the automatic substitution of the Department as employer for affected employees. This default position could only be varied by a valid agreement under section 197(6) with the unions, who were the exclusive bargaining partners. The Department's attempts to secure agreements directly with individual employees after the transfer were invalid, as the unions' agreement was required. The relief sought for future transfers was refused as hypothetical, and the declaratory relief sought for past transfers was refused on discretionary grounds, as no...

Court Disposition

Application dismissed. No order as to costs.

Orders

  • The application is dismissed.
  • There is no order as to costs.