Law: Travel allowance disputes

CCMA may be hit with a flurry of work

Law: Travel allowance disputes
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This, following a recent judgement in the Labour Appeal Court (LAC), there is likely to be a flurry of unfair labour practice disputes at the Commission for Conciliation, Mediation and Arbitration (CCMA) relating to travel and other allowances. Bonelela Mgudlwa, Senior Associate at pan-African corporate law firm Bowman Gilfillan, explained that the LAC ruled that, broadly put, an allowance is a benefit and consequently the CCMA has jurisdiction to adjudicate related disputes.

Previously our courts had taken the view that an allowance did not constitute a benefit in terms of s186 (2)(a) of the Labour Relations Act (LRA) and disputes about allowances did not therefore fall under the jurisdiction of the CCMA

Mr Mgudlwa said: ““The most recent decision of Apollo Tyres South Africa (Pty) Ltd v CCMA & Others, it was held that a ‘benefit’ for the purposes of the LRA is not limited to an entitlement which arises from a contract.

“In the light of Apollo Tyres, a travel allowance must fall within the broad definition of a ‘benefit’ now adopted by the LAC. As a result, we are likely to see a flurry of unfair labour practice disputes at the CCMA where employers have failed to comply with an obligation towards an employee.

“Employers who find themselves exposed to these risks, which would include the payment of non-discretionary bonuses, should seek legal advice“.

In earlier cases, on appeal the Labour Court confirmed in Hospersa and Another v Northern Cape Provincial Administration that a demand by an employee for an allowance did not concern a ‘benefit’. A dispute about a ‘benefit’ meant a dispute about ‘benefits’ to which an employee was entitled under a contract.

Further entrenching the precedents set in Hospersa was Polokwane Local Municipality v SALJBC & Others where the Court held that the employer’s refusal to pay an allowance did not constitute an unfair labour practice “in the form of a dispute relating to benefits” as contemplated in section 186 of the LRA.

“The LAC further confirmed the Hospersa approach in G4S Security Services v NASGAWU & Others where the Court found that for a successful claim, that is a claim that would give the CCMA jurisdiction to determine the dispute, an applicant would have to show that they have a right arising in terms of a contract. Only then would the CCMA have jurisdiction,” explained Mr Mgudlwa.

However, in Apollo Tyres the judge said that: “In my judgment ‘benefit’ in s186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled has a right or granted in terms of a policy or practice subject to the employer’s discretion.”

 

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