This newsletter highlights the latest statutory amendments, enactments, caselaw, notices and ancillary developments relevant to the SERR Synergy products and services for the month.

Mulderij / Goldrush Group GAJB 24054-21 (2022) CCMA

In this matter, the CCMA Commissioner (hereafter ‘Commissioner’) was required to determine whether the applicant’s (hereafter ‘Mulderij’) dismissal was substantively fair based on incapacity by refusing to be vaccinated. Mulderij was employed at Gold Rush Group (hereafter the ‘Company’) from 9 March 2018 as a Business-Related and Training Officer. In accordance with Government Gazette No. 44700 dated 11 June 2021, the Company created a Voluntary and Mandatory Vaccination Policy. Thereafter, a Mandatory Vaccination Policy Committee and Appeals Committee was formed and established. Prior to the implementation of the Mandatory Workplace Vaccination Policy, consultations were conducted with the relevant trade unions and all employees within the company to explain the contents of the policy and the exemption clause which allows for an employee to apply for exemption from receiving the Covid-19 vaccination.

During the arbitration, the Company Group Health and Safety Manager said the safety of the workplace environment and protection of employees were the goal and purpose of the drafted Mandatory Vaccination Policy. Mulderij applied for exemption from the Covid-19 vaccination and based her application on section 12(2) of the Constitution of the Republic of South Africa, 1996 (hereafter ‘the Constitution’) citing her right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction; the right to security in and control over her body; and the right not to be subjected to medical or scientific experiments without her informed consent. She also experienced social pressure and emotional discomfort over having to make a decision between her livelihood and waiving potential recourse against pharmaceutical companies should the vaccine result in her suffering temporary or permanent side effects. The Company submitted that due to the nature of Mulderij’s duties inter alia interacting with site-owners and fellow employees, she was a high-risk individual and there was no alternative position available without her being vaccinated.

Mulderij was subjected to an incapacity inquiry in October 2021 for failing to be vaccinated and to participate in promoting a safe and healthy working environment. She was found to be permanently incapacitated and dismissed.

In conclusion, the Commissioner upheld the reason for the dismissal and that it was substantively fair. In this matter it was about weighing up different interests. On the one hand, there were the interests and rights of the individual, in this instance Mulderij – the employee referring to her Constitutional right in terms of section 12, while on the other hand there was the duty of the employer or company to ensure and provide a safe working environment for all employees and third parties on its premises. The Commissioner found that when weighing up these rights and duties of the parties, the Company’s duty and right to create a safe working environment exceeded the right of the individual in this particular matter.

With regards to establishing judicial precedent, this is a CCMA award, and the CCMA is an administrative tribunal; therefore, this award does not create a precedent that is legally binding on all companies nor other Commissioners for future matters in this regard. Only a court judgement, and in this matter specifically a Labour Court judgement, will provide legal precedent. The trade union Solidarity has commenced with its first court case against Small Enterprise Employers of South Africa (SEESA), which was heard in the Labour Court in Johannesburg on 27 January 2022. The judgement in this case will create a legally binding judicial precedent.

It must be emphasised that the balancing of interests to determine the reasonableness of enforcing a mandatory vaccination will depend on a case-by-case basis as the objective justification to implement such a policy and dismiss recalcitrant employees will hinge on the nature of each employee’s employment and the availability of alternative employment, or the employer’s ability to make alternative employment available in an attempt to be accommodative.

Administrative Adjudication of Road Traffic Offences Act, 1998 (Act No. 46 of 1998) and the Administrative Adjudication of Road Traffic Offences Amendment Act, 2019 (Act No. 4 of 2019) AARTO Amendment Act, 2019 (Act No. 4 of 2019):

On 13 January 2022, the Pretoria High Court delivered its ruling on the constitutionality of these Acts. Organisation Undoing Tax Abuse (OUTA) challenged the constitutional validity of AARTO and the AARTO Amendment Act and asked the court in October 2021 to declare both the main act and the amendment act unconstitutional.

Judge Annali Basson found that the legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the Constitution, preventing local and provincial governments from regulating their own affairs. Therefore, the Administrative Adjudication of Road Traffic Offences Act, 46 of 1998 and the Administrative Adjudication of Road Traffic Offences Amendment Act, 4 of 2019 are unconstitutional and invalid.

Department of Employment and Labour:

The Registrar of Labour Relations, Lehlohonolo Molefe, in Government Gazette No. 45563 dated 30 November 2021, gave notice of his intention to cancel the registration of Allied Workers and Transport Union (AWATU) (LR 2/6/2/2520) with effect from 29 November 2021.

Bargaining Councils:

The Minister of Employment and Labour, Thulas Nxesi, in Government Gazette No. 45617 dated 10 December 2021, declared that the National Bargaining Council for the Electrical Industry of South Africa’s Main Amending Collective Agreement be extended to non-parties from 1 February 2022 until 31 January 2023.
The Minister of Employment and Labour, in Government Gazette No. 45617 dated 10 December 2021, declared that the National Bargaining Council of the Leather Industry of South Africa’s, Collective Agreement will be amended and extended to non-parties of the General Goods and Handbag Sector with effect from the second Monday after the publication of said Government Gazette until 30 June 2026.
The Minister of Employment and Labour, in Government Gazette No. 45617 dated 10 December 2021, declared that the National Bargaining Council of the Leather Industry of South Africa’s Collective Agreement will be amended and extended to non-parties of the Footwear Sector with effect from the second Monday after the publication of said Government Gazette until 30 June 2026.
The Minister of Employment and Labour, in Government Gazette No. 45617 dated 10 December 2021, declared that the National Bargaining Council of the Leather Industry of South Africa’s Collective Agreement will be amended and extended to non-parties of the Tanning Sector with effect from the second Monday after the publication of said Government Gazette until 30 June 2026.
The Minister of Employment and Labour, in Government Gazette No. 45645 dated 17 December 2021, declared the renewal period of operation for the wage and task grade of the Bargaining Council for the Civil Engineering Industry’s (BCCEI) collective agreement, specifically the provisions of Government Notices R.1414 of 1 November 2019, to be effective from 17 December 2021 until 31 August 2024.
The Minister of Employment and Labour, in Government Gazette No. 45696 dated 24 December 2021, declared the renewal period of operation for the conditions of employment of the Bargaining Council for the Civil Engineering Industry’s (BCCEI) Collective Agreement, specifically the provisions of Government Notices R.955 of 14 September 2018, R.1072 of 16 August 2019 and R.1428 of 8 November 2019, to be effective from the date of publication of this Notice until 31 August 2024.
The Minister of Employment and Labour, in Government Gazette No. 45696 dated 24 December 2021, declared the renewal period of operation for the exemptions of the Bargaining Council for the Civil Engineering Industry’s (BCCEI) Collective Agreement, specifically the provisions of Government Notice R.1416 of 1 November 2019, to be effective from 24 December 2021 until 31 August 2026.
The Director of Collective Bargaining, Stephen Rathai, in Government Gazette No. 45696 dated 24 December 2021, extended the period of operation to non-parties of the Main Agreement of the Bargaining Council for the Fishing Industry to 30 June 2022.
The Minister of Employment and Labour, in Government Gazette No. 45696 dated 24 December 2021, declared the amendment of the Main Collective Agreement of the National Bargaining Council for the Clothing Manufacturing Industry which is binding on non-parties from 3 January 2022 until 31 August 2024.