Unions defeated as ConCourt rules for government on wage agreement

Public sector trade unions have suffered a blow in legal battle relating to 2018 collective wage agreement.

The Constitutional Court (ConCourt) on Monday upheld the Labour Appeal Court’s ruling, and dismissed the unions’ leave to appeal application with no order as to costs.

Wage agreement

The unions had launched an appeal application in the ConCourt seeking an order compelling government to enforce the three-year collective wage agreement.

This is after the Labour Court ruled in favour of government in December 2020.

Government implemented wage increases for public servants in 2018/2019 and 2019/2020, but could not do so in 2020/2021 due to lack of funding.

This resulted in the unions approaching the Labour Court, which found that the cost of the collective agreement could not be covered solely from the minister of Public Service Administration’s budget.

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The court also found that Treasury did not provide a written commitment to guarantee additional funding and no further agreements were made by other departments or agencies.

Concerns were also raised that the minister did not follow regulations 78 and 79 of the Public Service Regulations, which require the department to be able to meet the fiscal requirements and approval from the National Treasury.

Therefore, the Labour Court declared the enforcement of the final year of the three-year agreement unlawful as it violated certain sections of the Constitution, and dismissed the unions’ application.

ConCourt ruling

In a unanimous judgment, the ConCourt ruled in favour of government, on the basis that the wage agreement was unlawful. 

“The court noted that regulations 78(2) and 79(c) created jurisdictional facts which must exist prior to the Minister’s exercise of power to negotiate and conclude collective agreements on behalf of the State, absent which the Minister acts without legal authority.

“The court found that the jurisdictional facts were not present and that non-compliance with the requirements of regulations 78 and 79 rendered the resultant collective agreement between the State and the trade unions invalid and unlawful, and thus unenforceable,” the apex court ruled.

The ConCourt said government did not have to abide by 2018 three-year deal, which would have put a strain the state’s pockets if is obliged with the agreement.

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“In sum, if clause 3.3 were to be enforced, the amount available for service delivery in all its manifestations would be significantly reduced.

“In this regard, the state has laid emphasis on the impact that the Covid-19 pandemic has had on its financial resources, including the need to protect the lives and livelihoods of vulnerable people exposed to the severe consequences of the pandemic.

“In the present economic and health circumstances facing the country, it would not be just and equitable to require the State to make good the illicit salary increases it promised at the expense of far more pressing needs affecting the country,” the judgement reads.

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One of the applicants in the legal battle, the National Education Health and Allied Workers Union (Nehawu) said the union was disappointed with the ConCourt’s judgement.

“We are not shocked given the fact that we are still living in a capitalist society. The courts represent the ruling class.

“We are disappointed [at the ruling]. We had done everything and complied with the rules when negotiating and to get this kind of judgment is disappointing,” Nehawu general-secretary Zola Saphetha told Power987 on Monday.

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The National Professional Teachers  Organisation of South Africa (Naptosa) also expressed its disappointment at the judgment.

“This is a sad day not only for public servants but also for bargaining collective as a whole,” Naptosa executive director Basil Manuel told SowetanLIVE.

Other unions involved in the case included the South African Democratic Teachers Union (Sadtu), Police and Prisons Civil Rights Union (Popcru), Democratic Nursing Organisation of South Africa (Denosa), Public Servants Association (PSA), the Health and Other Services Personnel Trade Union of South Africa (Hospersa), the South African Teachers Union (Satu), the National Teachers Union (Natu) and the National Union of Public Service and Allied Workers (NUPSAW).