Article 3 of the second circular nullifies and replaces the circular of 31 May 2002. Article 12 provides for the implementation of the circular with immediate effect, but provides for additional time for the implementation of an adapted eight-hour system of shift work until 1 September 2005. In this regard, it is indicated that in the event of a dispute over the interpretation or application of this agreement, any party may refer the matter to the Commission (SSSBC) for the settlement of the Commission`s dispute resolution procedure. In that proceeding, the unions challenged the decision on three grounds, namely that it contravened a court order; it violates the collective agreement; and that under the Promotion of Administrative Justice Act 2000 (PAJA), it should be repealed as an unfair, inappropriate or procedurally irrational administrative action. Prior to the enactment of the regulations in 2000, conditions of employment in the SAPS were governed by laws, permanent contracts and various collective agreements. By adopting Regulation 31, the Commissioner has acquired the obligation to set the weeks and hours and hours of operation and closure of the workplaces he controls. In 1994, SAPS staff began working in 12-hour shifts to compensate for staff shortages. As far as I could inquire about the documents, it meant that employees provided services for 12 hours per shift, on average three to four times per eight-day cycle. By far, the majority of workers in regular activities began providing 12-hour shift services and continued to do so until mid-2005. An SAPU survey of 121 police stations in Freistaatsprovinz province revealed that 107 12-hour shifts were on duty. Workers seem to prefer the 12-hour shift system because it provides them with a balance between their work and family responsibilities.
In 2002, more than 90% of workers worked in 12 hours. Mr. Bruinders, who was appearing on behalf of the respondents, replied that he had not exercised public authority or public service in the Commissioner`s decision. Regulation 31 has two objectives. Regulation 31 (a) authorizes the Commissioner to set the working week and daily hours of workers. Regulation 31, point b), authorizes it to set the opening and closing hours of the workplaces it controls. Mr. Bruinders argued that the setting of the hours of operation and closure of police stations is clearly the exercise of public authority or the exercise of a public service, whereas the setting of daily hours or shift work hours is not based primarily on the fact that it stems from the prerogative of management of labour relations management and, as he has seen, from an authority that is in the collective agreement.
The introduction of the 8-hour shift system does not affect the working hours that workers can do and does not deviate from the 5/2002 agreement; The 8- or 12-hour shift work system can be applied. I agree with Mr Bruinders, but for reasons that are somewhat contrary to what he said. Unlike Mr Bruinders, I do not see the source of the Commissioner`s powers in Agreement 5/2002. Rather, I agree with Mr. Watt-Pringle that the Commissioner`s labour relations expertise is explicitly contained in Section 24, paragraph 1 of the South African Police Service Act of 1995, which authorizes the Minister to adopt rules on members` terms of service and labour relations. Under these powers, the Minister has given the Commissioner the prerogative to set working hours that he may, depending on the circumstances, exercise unilaterally or bilaterally with respect to existing employment contracts or collective agreements. Power therefore comes from a public source, but as the Constitutional Court has suggested, the source of power is certainly relevant, but not necessarily determinative.