The National Education, Health and Allied Workers’ Union [NEHAWU] met with the Minister of Health, Dr Zwelini Mkhize, this morning to resolve the issues that led to the union resorting to a legal course of action on the need for government to comply with Occupational Health and Safety Act, in the context of the fight against COVID-19. The meeting which took four hours and fifteen minutes was characterised by robust and intensive discussions that led to progressive outcomes.
We note the judge’s decision to dismiss our case even after we had withdrawn it from court. Our withdrawal was purely based on willingness by the Minister to meet us which was our prayer number 1 in our filed papers. Secondly, since we wrote to the Minister and filed papers to court, the Minister took steps to attend to our issues including scheduling a meeting which indeed sat this morning. These steps taken by the Minister were prompted by the pressure applied by the national union on our papers to court hence he reported progress on his answering affidavit.
Unfortunately, he did all of this without informing us and certainly we cannot be blamed for not being aware as it was his responsibility to inform us of the steps he had taken including agreeing to address the shortage of PPE’s and the commitment that the department will not force any worker to work without protection. For this reason, the Minister in our meeting apologized for the lapse in communication regarding issues placed before him hence parties committed to improve cooperation. Therefore, NEHAWU shall appeal against this rather strange judgement.
At court, the respondents were called upon to file their notice of intention to oppose at 10am on the 4th April 2020 and an answering affidavit by 16h00 on the 5th April 2020 in terms of our notice of motion. The matter was scheduled to be heard on the 7th April at 10am. The judge having been advised of this, issued directives which highlighted the fact that she did not believe the parties would be ready at 10am on the 7th April 2020.
In total disregard to the notice of motion and without explanation the Minister only filed his answering affidavit at 1:30am on the 7th April 2020 wherein they raised new issues which NEHAWU had to respond meaningfully before going to court. In light of this reality, we had to apply for a postponement in order to respond to these new allegations. The judge granted a postponement, however, to our dismay and surprise also issued costs against us despite the following:
· It was the respondent’s fault that the answering affidavit was filed late
· The judge herself expressed doubt on the level of preparedness
· It was a continuing matter where cost should have been argued at the end of our case.
This order of cost was thus shocking and unwarranted at that stage of proceedings. Based on this order the national union began to doubt the fairness on the proceedings and anticipated outcomes which partly influenced the decision to withdraw. Secondly, on the 7th April 2020 the Minister agreed to meet with NEHAWU which rendered the pending case academic, hence, we filed a notice of withdrawal. On the 8th April 2020 when the matter resumed for purposes of only arguing costs as the case had been withdrawn, the respondent maliciously brought an application for the dismissal of the application of an already withdrawn case.
In this regard, the national union shall challenge these erroneous judgements that allowed for arguments to be made on the withdrawn and postponed case. In court our legal team argued that there is no application before court for it to dismiss, as it has been withdrawn as such the court has no powers to hear an application for dismissal. However, again to our shock and dismay the court in an unprecedented manner dismissed an application that has been withdrawn.
The judge advised that she will issue her reasons in a written judgment which she will issue in due course. It is for these reasons that we are eagerly waiting for such explained reason in the written judgement and upon receipt of which we shall explore our prospects of appeal. Generally,going to court, the national union was alive to the fact in any capitalist society the law that governs society always favours the ruling class, the bourgeois.
Nonetheless, the national union has been looking forward to such an opportunity since the onset of the national public health emergency in the wake of the outbreak of the Coronavirus in South Africa on the 5thMarch 2020. All along NEHAWU was by no means driven by any malicious intent but the pressing need to ensure compliance with the law as means through which workers are protected as they set out to serve their country in the fight against this pandemic.
After Today’s meeting, we can confirm that the issues pertaining to the breakdown in communication and working relationship between the parties have been resolved.
Subsequently, the key issues pertaining to compliance matters around the Occupational Health and Safety Act were addressed. Thus, it was agreed that:
· The available stock of the Personal Protective Equipment (PPEs) must be matched with the headcount of the different categories of the frontline workforce and their specific designations in terms of the different types of the protective gears to determine shortage and additional pipeline procurement going-forward.
· The department undertook to send out guidelines to provinces to ensure uniform application of the same norms in relation to the types of PPEs per categories of the frontline of workers as well as ensure that there are proportional redistribution or reconciliation of the different items the PPEs across provinces and health districts.
· It was agreed that no worker shall be forced or intimidated to work without proper and sufficient provision of occupational protection by any employer.
· The department undertook to ensure that management at the institutional level reviews all suspensions of workers and that there is no harassment related to shortages of the PPEs at workplaces. Instead, there must be collaborative effort in the fight against the virus and disease.
· It was agreed that the national Health and Safety Committee shall be strengthen with additional participation by NEHAWU and other trade unions. The committee shall also focus on the wellbeing of the frontline workers, including counselling as and when needed by workers under the current stressful conditions. Moreover, the work of the committee must cover both public and private healthcare workers equally.
· The department also committed itself to expedite the process of the establishment of Health and Safety Committees in the frontline workplaces, in which risk assessments would be undertaken to ensure proper measures effecting infection control and occupational hygiene are put in place.
· The Department of Employment and Labour shall ensure that inspectors would be available to ensure compliance and enforce the Occupational Health and Safety Act.
· It was agreed that there shall be proper education on the PPEs and the guidelines issued by the department and NICD on workplace disinfection measures, the handling and movement of deceased bodies, etc. Through the workplace Health and Safety Committees the national union shall insure that the members’ concerns are addressed in this regard.
· The Minister will establish a project team in his office to strengthen coordination with the OHS committee and elevate issues speedily in terms of safety, supply of PPE’s and training of workers.
· The department agreed that the issue of catering is a very important matter as workers are expected to work long hours without any food or something to drink. In this regard, the issue of the catering for workers and the operations of the canteens shall be referred to provinces to address as a matter of urgency.
· NEHAWU raised sharply the issue of lack of transport for workers especially the inconsistency of public transport during the lockdown. Workers are usually stranded with no transport to go to work or to return back home after their shifts. The department therefore agreed to look into staff transport for healthcare workers and will also engage the Department of Transport to intervene on the issue of public transport.
· The matter of the danger allowance shall be considered in the appropriate forum, including the NEDLAC rapid response team, taking into consideration the suspension of the activities of the Public Service Co-ordinating Bargaining Council [PSCBC] because of the 21 days nation-wide lockdown.
· The Department of Trade and Industry shall deal with the issues of donations and assistance from big business in terms of the Solidarity Fund. The NEHAWU Investment Holdings, shall accordingly make a contribution on behalf of the members to help secure the PPE’s and other related necessaries. In this regard, the Department of Health will assist in procuring the correct PPE’s and quality assurance thereof.
· Parties agreed to communicate more with workers and the public during these tough times. Thus, messages that encourages workers and appeal to the public to observe the rules of the lockdown will be developed and disseminated widely as possible.
In line with the robust engagements with the three Ministers lead by the Minister of Health and commitments made the Department of Health in particular we have taken a decision to discontinue with the legal course of action since there is now a commitment to address our concerns on the health and safety of our members and the workforce at large. Thus, the national union shall monitor the implementation of the commitments made by the department and will not hesitate to review our decision.
As NEHAWU, we view today’s meeting and its outcomes as a huge achievement based on the demands that were contained in our court papers. We confidently and strongly believe that national union was able to compel the department to accede all our demands including their enforcement and timeframes which is prayer number 2 in our court papers. This is a victory for all our members and workers who were anxious about their safety in their workplaces because both payer number 1 and 2 had been realised.
Lastly, we would like to salute all our members and workers who are in the frontline of fighting the virus under difficult conditions which includes exhaustion, lack of transport and dilapidating infrastructure.
Issued by NEHAWU Secretariat
Zola Saphetha (General Secretary) at 082 558 5968; December Mavuso (Deputy General Secretary) at 082 558 5969; Khaya Xaba (NEHAWU National Spokesperson) at 082 455 2500 or email: email@example.com