Three public-sector unions affiliated to labour federation COSATU have applied for leave to appeal against a Labour Appeal Court ruling that their three-year collective agreement with the government over wages was unconstitutionally invalid and unlawful.

The South African Democratic Teachers’ Union (SADTU) General Secretary Mugwena John Maluleke has filed a 35-page affidavit in the Constitutional Court on behalf of SADTU, the Democratic Nursing Organisation of South Africa (DENOSA) and the Police and Prisons Civil Rights Union (POPCRU), arguing that the Labour Appeal Court (LAC) erred in several instances in its 15 December 2020 judgment and that the ruling threatened the efficacy of the important principle of collective bargaining and its associated compliance.

The public-sector unions and government have been locked in a months-long legal battle over the government’s refusal to implement Clause 3.3 of the collective agreement signed in 2018. The government implemented the agreement in 2018 and 2019 but baulked early last year, arguing that it was unaffordable due to the worsening economic conditions caused by the Covid-19 pandemic.  

In the affidavit, Mr Maluleke argued that the LAC erred in finding that Treasury did not approve the collective agreement.

“[…] Cabinet approved the terms of the collective agreement in January 2018 and again in April 2018. Relying on this approval, the Minister (of Public Service and Administration of SA) concluded the collective agreement on the terms approved by Cabinet with the unions.

“There is no breach of Section 216 of the Constitution in holding National Treasury to the decision of the Cabinet, of which the Minister of Finance was part.

“I point out in this regard that the Minister of Public Service and Administration, on the one hand, and the Minister of Finance, on the other, presented conflicting oral submissions on this issue. This goes to show that the challenge to the validity of the collective agreement was an afterthought and that the real issue is the affordability of implementing clause 3.3 of the collective agreement in the present economic conditions. This is a relevant factor to remedy and [does] not [refer] to the validity of the collective agreement.

Mr Maluleke stated that if the collective agreement had been unconstitutional or any regulations had been breached, the government appreciated that unlawfulness even prior the conclusion of the agreement.

In addition, he claimed that the LAC failed to consider properly whether the government’s 24-month delay in challenging the agreement was unreasonable and applied wrong test to determine this.

“I am advised that, since the LAC found that there is a delay, the government failed to provide an explanation for the delay, which rendered the delay unreasonable. I say that the LAC found that there was a delay because the court, with respect, wrongly considered whether the delay could be overlooked in the circumstances.

“The government has been aware of the Ministers’ decision to conclude the collective agreement since 2018. It was also aware of the budgetary implications.”

Mr Maluleke further claimed that the LAC erroneously considered the prevailing economic circumstances and decided they warranted overlooking the delay.

“A change in the economic circumstances does not affect the legality of the collective agreement. The LAC erred in relying on prevailing economic circumstances and the impact of Covid-19 pandemic in relation to the legality of the collective agreement.”

The LAC also failed to consider the rights of trade unions, employer organisations and employers to engage in collective bargaining as stipulated in Section 23(5) of the Constitution.

Mr Maluleke argued that the commitment to the right to collective bargaining included the right to insist on the compliance with the provisions of the collective agreement.

Compliance was crucial to the sanctity of collective-bargaining process and an important right for workers who are generally powerless to bargain individually over wages and conditions of employment.

“The enforcement of the collective agreement is vital to industrial peace and indeed crucial to the achievement of fair labour practices, which are constitutionally entrenched. The enforcement of the agreement is, indeed, crucial to a society, which, like ours, is founded on rule of law.” 

The LAC further erred in ruling that the unions’ willingness to negotiate on the implementation of the wage increase was an acknowledgment that the prevailing circumstances made it unreasonable for the government to grant an increase to people who had job security.

“The fact that there were no details provided to LAC about the way a staggered or phased-in implementation of Clause 3.3 would be conducted should not have meant that a staggered of phased-in implementation was impermissible.

“The LAC should have ordered the parties to commence negotiations in good faith for determining a reasonable method in terms of which the government would comply with its obligations in Clause 3.3 of the collective agreements. The matter could be referred to the Bargaining Council for resolution within a reasonable time if the parties fail to agree on the reasonable terms.

In appealing to the Constitutional Court to grant the public-sector unions leave to appeal against the LAC judgment, Mr Maluleke argued: “The LAC judgment affects the constitutional right to collective bargaining as entrenched in section 23(5) of the Constitution. Employees, trade unions and employee organisations should be entitled to enforce collective agreements concluded with the government when such collective agreements are approved by Cabinet and the Committee of Ministers.

“The government should not be entitled to undermine the constitutional right to collective bargaining by enforcing collective agreements in a piecemeal manner or selectively.  This case also raises arguable points of law of public importance.

The arguable point of law is about whether an employer may rely on intervening circumstances that adversely affect the employer’s ability to comply with its obligations in terms of a collective agreement as a basis for refusing to comply with its obligations.

“The efficacy of collective bargaining was compromised by the LAC judgment. This Court should, with respect, grant leave to appeal to ensure that the conclusions of the LAC (whether upheld or set aside) are considered by this Court.”

Ends

Issued by: SADTU, POPCRU and DENOSA Secretariat

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Mugwena Maluleke: 082 783 2968