12 October 2017

South Africa: PSC Proposal to Improve Compliance With Labour Court Orders

The Public Service Commission (PSC) has proposed that the Department of Public Service and Administration (DPSA) develop a policy framework to guide departments in implementing arbitration awards and Labour Court orders.

The PSC conducted an investigation into why government departments do not implement labour related court orders and the impact thereof. The commission had received enquiries and complaints from aggrieved employees regarding the non-implementation of arbitration awards and Labour Court orders by government departments.

The PSC on Thursday held a media briefing on its investigation findings, which concurred with employee observations that departments often stalled in implementing orders issued by the Labour court.

PSC Northern Cape Commissioner Moira Marais-Martin, who chaired the briefing, said: "There is a gross disregard of being a caring employer by government departments who delay when they have to institute arbitration awards or comply with court orders."

Disputes lodged by employees dealt with unfair labour practice such as promotions, benefits and unfair suspensions.

Marais-Martin said failure to implement court orders dampens staff morale and affects work. Colleagues of the affected employee often have to shoulder the affected staff member's workload while they are preoccupied with the matter.

"Sometimes, delayed or non-implementation contributes towards labour unrest and major financial implications for departments and employees alike," she said.

Investigation findings

In its investigation, the PSC identified challenges with the non-implementation of arbitration awards and Labour Court orders including:

Non-adherence to prescribed dispute resolution processes and timeframes;

Reluctance by government officials to observe the rule of law, as shown by the number of awards taken on review;

Lack of accountability by the relevant authorities against who awards and orders are issued;

Lack of systems to monitor the management and implementation of arbitration awards and court orders by all stakeholders, and

Poor communication with the affected parties on the reasons for delayed or non-implementaion.

Proposed policy

The PSC now proposes that the mooted policy should spell out how a matter will be addressed to reduce the negative impact of non-implementation of court orders. It wants clarity on the responsible officials who will attend to the matter. Clear timeframes should be set and a timeous decision made by the concerned leadership.

The proposal entails thorough monitoring and reporting to the DPSA and analysis of the data by the DPSA for the purposes of reporting to relevant structures such as the Forum of South African Directors-General (FOSAD), Cabinet and the PSC to ensure accountability, enable prompt intervention where there are challenges and facilitate effective oversight by the PSC.

The PSC proposes that there be clear communication from the department with employees, unions and bargaining councils. It also wants transparent and consistent practices for managing consequences of non-compliance with court orders.

Cost of litigation and compensation

Departments that were reviewed spent just over R166 million on litigation costs during the 2013/14 and 2015/16 financial year.

Unions spent approximately R9 million over the reporting period in support of their members.

In the period under review, out of the R94 million spent on the compensation of employees, R57 million alone was for arbitration awards. The South African Police Service (SAPS) and Correctional Services were the biggest spenders of compensation.

The commission urged employees to empower themselves and seek the assistance of unions and fellow employees on the enforcement of arbitration awards and courts orders.

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