4 May 2017
The Department of Home Affairs has noted the judgment of the Constitutional Court on the new opening and closing hours of Civic Services Front Offices. The Court has ordered the parties to go back to conciliation.
This matter dates back to 1 March 2015 when the department had implemented new opening and closing hours for Civic Services Front Offices, to broaden access to services for citizens and other clients. The new opening and closing hours became operational on 23 March 2015. The implementation of this new dispensation was a culmination of a consultative process between the department, NEHAWU and PSA dating as far back as September 2014.
The initial change of working days to include Saturdays was an instruction from Cabinet, in 2005. The purpose was essentially to ensure better service delivery to the public and to afford members of the public who did not have access to offices during the week an opportunity to access the offices on Saturdays.
In order to give effect to the Cabinet decision, and given capacity constraints of the department, a decision was taken to appoint contract workers to complement the permanent staff and, further, a system of overtime payment was introduced.
During 2010, due to financial constraints and the view that payment of overtime was not a prudent way of utilizing state resources, the department took a decision to absorb all contract workers who served the department for a period of one year or more. Following this decision, salary levels of contract workers which were on lower scales were invariably adjusted and put on par with those of permanent staff.
For example, contract workers were mainly placed at salary level 3 and 4, whereas permanent staff members were on higher salaries, and hence a decision to place them on salary level 6 in agreement with the unions. In this regard 1064 (one thousand and sixty four) contract workers were absorbed.
Following the absorption of contract workers, the department decided to discontinue the system of overtime payment and implemented a new system in which staff members would be required to work a Saturday in lieu of a day off midweek after consultation with unions.
This mandate carried no budgetary provision which meant that employees who would be required to work on Saturdays would no longer be remunerated in the form of overtime. However, employees would still be required to work a maximum of 40 hours per week in line with South Africa’s labour laws, including the Basic Conditions of Employment Act.
After the implementation of the new opening and closing hours, the unions, in particular the PSA, raised objections. Pursuant to the PSA objection, the matter was referred to the GPSSBC for conciliation, which was set down for 2 April 2015. During conciliation, the department challenged the jurisdiction of the GPSSBC. This was on the basis that the dispute did not involve a matter of mutual interest. The unions were of the view that this was a matter of mutual interest and therefore, GPSSBC had jurisdiction to conciliate. The Commissioner delivered a jurisdictional ruling to the effect that GPSSBC lacked jurisdiction.
The unions, clearly not satisfied with the arbitrator’s finding, approached the Labour Court to set aside the arbitrator’s ruling, which Court ruled in favour of the unions. The department approached the Labour Appeal Court, which dismissed the application for leave to appeal on the basis that there were no prospects of success.
Following a legal opinion on prospects of success, the department petitioned the Constitutional Court. The unions opposed the department’s application and the Court granted the department leave to appeal concerning the scope of jurisdiction of the General Public Service Sector Bargaining Council over the subject matter of disputes.
The Constitutional Court has today 4 May 2017, ordered the parties to go back to conciliation. The status quo therefore remains. Civic Services Front Offices will continue to open on Saturdays, to offer services to citizens and other clients. The Department of Home Affairs will do all in its power to ensure improved services are offered to the public.
For more information, please call:
Mpume Madlala (MLO for the Minister): 081 282 7799
Issued by the Department of Home Affairs on 4 May 2017