SAMWU and Another v SA Local Government Association and Others (C411/2007) [2010] ZALCCT 37 (3 March 2010)

SAMWU and Another v SA Local Government Association and Others (C411/2007) [2010] ZALCCT 37 (3 March 2010)

The transfer of primary health care services from municipalities to the Department constituted a transfer of a business as a going concern under section 197 of the LRA. The default position under section 197(2) is automatic substitution of the employer unless a valid agreement under section 197(6) is concluded with the appropriate bargaining representative, which in this case was the unions. The Department's direct agreements with individual employees did not comply with section 197(6) and were therefore invalid. However, given the lapse of time, the practical completion of the transfer, and the lack of tangible advantage to the unions, the court exercised its discretion to refuse...

Citation
[2010] ZALCCT 37
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 Cape Town
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
Transfer of Business, Automatic Substitution of Employer, Collective Bargaining, Section 197 Lra, Declaratory Relief
Labour Law Civil Procedure Transfer of Business Automatic Substitution of Employer Collective Bargaining Section 197 Lra Declaratory Relief

Case Brief

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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 agreements concluded between individual employees and the Department for transfer of employment are valid under section 197(6) of the LRA.
  2. 2 Whether future transfers of employment must occur in terms of section 197(2) unless a written agreement under section 197(6) exists.
  3. 3 Whether the unions are the exclusive negotiating party for section 197(6) agreements.

Ratio Decidendi

The transfer of primary health care services from municipalities to the Department constituted a transfer of a business as a going concern under section 197 of the LRA. The default position under section 197(2) is automatic substitution of the employer unless a valid agreement under section 197(6) is concluded with the appropriate bargaining representative, which in this case was the unions. The Department's direct agreements with individual employees did not comply with section 197(6) and were therefore invalid. However, given the lapse of time, the practical completion of the transfer, and the lack of tangible advantage to the unions, the court exercised its discretion to refuse...

Court Disposition

Application dismissed. No order as to costs.

Orders

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