- Labour Court set aside a MIBCO ruling covering Pick n Pay Express employees.
- The court found the convenience store and filling station operated as separate businesses despite sharing ownership and premises.
- Employees working in the Pick n Pay Express store were ruled to fall outside MIBCO’s registered scope.
A Stellenbosch fuel station operator has won a Labour Court challenge that could have implications for convenience stores operating alongside filling stations across South Africa.
The Labour Court ruled that employees working in a Pick n Pay Express convenience store at a BP filling station do not fall within the jurisdiction of the Motor Industry Bargaining Council (MIBCO), despite both operations being owned by the same company and operating from the same premises.
The dispute involved Merriman BP Service Station, which operates a BP filling station and a Pick n Pay Express convenience store in Stellenbosch. While it was common cause that employees working on the fuel forecourt fell within MIBCO’s registered scope, the company disputed an earlier demarcation ruling that extended MIBCO coverage to workers employed in the convenience store.
Dispute centred on convenience store operations
MIBCO argued that the Pick n Pay Express store constituted an ancillary activity forming part of the filling station business and should therefore fall within its jurisdiction. The company argued that although the two operations shared ownership and location, they functioned as separate businesses with distinct systems and operations.
Evidence before the court showed that Pick n Pay cashier transactions were processed through Pick n Pay systems and that store employees could not process payments for fuel purchases. The company also presented evidence that the convenience store and filling station were capable of operating independently of each other.
An operations manager testified that the Pick n Pay Express store continued trading during a previous shutdown of the fuel forecourt caused by technical problems.
Court finds operational independence
Judge R Lagrange found that the evidence demonstrated operational independence between the two businesses. The court held that the fact that both businesses were owned by the same company was not sufficient to place convenience store employees within MIBCO’s registered scope.
Judge Lagrange explained, “The real question is whether the employee or employer is involved in a specific type of economic activity, regardless of whether the employer is a company or an individual.” Instead, the proper question was whether the convenience store formed part of the filling station’s activities or operated independently.
The judgment found that the arbitrator who issued the original ruling placed excessive emphasis on ownership and failed to properly consider the operational relationship between the two businesses.
According to the court, the filling station and convenience store operated side by side rather than as a single integrated enterprise. The court found there was insufficient evidence to show that the convenience store functioned as an ancillary activity of the filling station.
Judge Lagrange wrote, “Simply being on the same premises and owned by the same company, without any operational integration, is not enough to make the Express store an ancillary activity of the filling station.”
Meaning of ancillary activities
A key issue before the court was the interpretation of MIBCO’s scope, which includes filling stations and certain ancillary activities linked to a convenience store environment.
Judge Lagrange held, “Just because the convenience store benefited from being at the service station, it does not automatically make it an ancillary activity.”
The judgment noted that while the two businesses complemented each other and likely benefited from their shared location, this did not mean the convenience store was subsumed into the filling station business.
The court further found that the convenience store’s operations were not integrated with those of the fuel station and that there was no evidence showing the level of operational interconnection required to bring the store within MIBCO’s scope.
Judge Lagrange said, “It is true the Express store would not exist without the filling station, but that does not mean it is ancillary to it.”
Final outcome
The Labour Court reviewed and set aside the demarcation award and substituted it with a finding that employees engaged in the Pick n Pay Express store do not fall within the scope of the Motor Industry Bargaining Council.
Judge Lagrange concluded, “The employees working in the Pick n Pay Express store do not fall under the Motor Industry Bargaining Council.”
The court held that both parties had a legitimate interest in obtaining certainty on the legal question and that it would not be fair to order either side to pay costs.
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