Weekly article from IR Network Daily Update: Grievance/(Residual) - Unfair labour practice

CASE: South African Chemical Workers' Union / Mylan Pharmaceuticals - (2022)31 CCMA 6.12.3

Subject matter classification:

Grievance/(Residual) - Unfair labour practice - Discrimination - Arbitrary ground - Members of union claiming unfair discrimination on basis of having to pay higher contributions for membership of union's provident fund than employees who were members of employer's pension fund - Claim not amounting to arbitrary ground - Discrimination not proved.

Mini Case Summary:

After the applicant employees were transferred to the respondent in terms of section 197 of the LRA the respondent amended its pension fund rules to harmonize contributions paid to the union's provident fund with those paid by other employees. The union contended that this unfairly discriminated against members of the provident fund because their contributions were higher than those of other employees. The respondent claimed that the CCMA lacked jurisdiction to entertain the dispute.

The Commissioner noted that the applicants claimed that they had been discriminated against on an "arbitrary ground". The undisputed evidence was that all employees were free to join the pension scheme of their choice. It could not be said that membership of the SACWU provident fund constituted a ground akin to those prohibited by the EEA. Their claim accordingly did not fall within the scope of section 6(1) of that Act and the respondent could not be held liable for unfair discrimination.

The application was dismissed.

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