The Labour Appeal Court on Monday interdicted with immediate effect the strike action started last Monday by the National Education, Health and Allied Workers’ Union (Nehawu) and its members who are employed in an essential service.
Image: Thapelo Morebudi
The court said Nehawu and all such essential service employees were restrained and prevented from continuing with or participating in any such strike.
The court also restrained Nehawu and its members and workers employed at the South African Social Security Agency (Sassa), the Special Investigating Unit (SIU) and the South African National Biodiversity Institute (Sanbi) from continuing with the strike.
It ordered Nehawu to inform its members, including but not limited to every hospital and clinic at which it has members within the essential services, of the order of the court through publication on social media, by email and by all other appropriate means available to it by no later than 1pm on Monday.
The court said the order remained in force until the final determination of the appeal against the order made by the Labour Court on March 4 interdicting the strike by Nehawu.
Following the judgment of Edwin Tlhothlalemaje on March 4, Nehawu sought leave to appeal against the order.
On the first day of the strike on March 6, the public service and administration minister applied for an urgent order to execute the order from Tlhothlalemaje, pending the determination of Nehawu’s appeal.
On the same day, the Labour Court granted the execution order sought by the minister.
Nehawu noted an appeal against the March 6 order and the appeal against that order was heard on Friday on an urgent basis.
In its judgment on Monday, the Labour Appeal Court said there could be no doubt the strike notice given by Nehawu in the matter was intentionally broad and reckless.
“It gave notice of the strike ‘across all departments and provinces (including Sassa, SIU and Sanbi)” and ‘in all workplaces in the public service, including those of Sassa, SIU and Sanbi’.
“Nehawu issued this notice with the knowledge that hundreds of thousands of its members were employed in essential services and that it was impermissible in terms of the Labour Relations Act for them to strike, as it was for the union’s members at Sassa, SIU and Sanbi since these entities did not fall within the public service as defined,” the court said.
It said when called upon on February 26 2023 to confirm it “will actively ensure members rendering essential services will not participate in the strike”, no response was received from Nehawu in what was clearly a matter of importance and urgency.
The court said a more deplorable approach, and in some instances it appeared with deadly consequences, was the approach of Nehawu to the strike by its members employed in essential services.
“In this regard, 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.”
The court said despite being called upon to confirm the union will actively ensure members rendering essential services would not participate in the strike, Nehawu failed expressly to confirm this.
The union said it was “alive to the limitations of the right to strike” and that its “officials have and will be instructed to implement all possible measures to ensure members comply with the law and picketing rules”.
“Having been aware it had issued a strike notice which, in breach of the law, did not exclude essential service workers, Nehawu’s response was patently deficient given the seriousness of the risk that its members employed in essential services would strike on the basis of the wide scope of the notice given by Nehawu.”
The ministry of health welcomed the court order.
Nehawu said its legal team was studying the judgment.
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