Pretoria - Essential workers have no choice but to return to work, because an interdict preventing them from participating in the National Education, Health and Allied Workers’ Union (Nehawu) strike will remain in force, even though Nehawu is appealing against the interdict.
The Labour Appeal Court this week ruled that the interdict preventing essential workers from participating in the strike, issued earlier this month, will remain in force pending the outcome of the union’s appeal.
In the normal course of the law, an appeal usually suspended an order. Yet, under exceptional circumstances coupled with allegations of irreparable harm which can occur if an order is suspended, a court can order that its ruling be executed, even though an appeal is pending.
The Department of Public Service and Administration turned to the Labour Appeal Court asking that the interdict remain in place in the face of the pending appeal proceedings.
This followed wage negotiations with Nehawu and other trade unions which deadlocked. The department made a final offer of a 3% wage increase.
Nehawu then issued a strike notice.
On February 26, the director-general of the department informed Nehawu in a letter that the union’s strike notice included essential services employees in the public service; employees prohibited from striking, as well as entities that fall outside of the public service.
The director-general asked Nehawu to confirm in writing that it “will actively ensure that members rendering essential services will not participate in the strike”.
When the union did not respond, the department turned to court on March 3 to obtain an interdict.
Included in its reasons for an interdict, the department said the strike demands, totalling R36 billion, were incapable of being met. The Labour Court subsequently set aside the strike notice and interdicted the strike action.
The union in turn lodged appeal proceedings against the order.
This was followed by an application by the department for leave to execute the order of the Labour Court on the basis that exceptional circumstances exist and that the government is likely to suffer irreparable harm if the strike went ahead.
It pointed out that with 1 224 653 public servants in the bargaining unit, 582 000 are essential services employees and 642 653 are non-essential service employees.
According to the department, exceptional circumstances exist and the government was likely to suffer irreparable harm if essential workers went on strike.
The court earlier found that the unions’ strike notice was intentionally broad and recklessly so. It gave notice of the strike across all departments and provinces and in all workplaces in the public service.
It said Nehawu issued this notice with the knowledge that hundreds of thousands of its members were employed in essential services and that it was impermissible for them to strike.
The court said the union and its members illustrated a flagrant disregard for the law, the employer and the people of this country, entitled to access essential public services.
Pretoria News