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Labour Appeal Court interdicts Nehawu members from striking

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Labour Appeal Court interdicts Nehawu members from striking

Labour Appeal Court interdicts Nehawu members from striking

13th March 2023

By: News24Wire

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The Labour Appeal Court has interdicted any industrial action by trade union National Education, Health and Allied Workers' Union (Nehawu), its members, or any essential service employees.

The order is applicable with immediate effect.

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The court further ruled that Nehawu's members and all essential service employees are prevented from continuing with or participating in any such strike, picket, or any other form of industrial action.

The union was ordered to inform its members and officials across the country about the ruling by no later than 13:00 on Monday.

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The court ruled the order remained in place until the final determination of the appeal against an initial order made by the Labour Court on 4 March, which interdicted the strike by Nehawu.

Nehawu sought leave to appeal against an order of Judge Edwin Tlhothlalemaje on 4 March.

The Ministry of Public Service and Administration applied for an urgent order to execute the ruling of Tlhothlalemaje on the first day of the strike on 6 March, pending the determination of Nehawu’s appeal.

On the same day, the Labour Court granted the execution order sought by the minister.

Nehawu's appeal against the 6 March execution order was heard on Friday on an urgent basis. The court reserved judgment.

In its judgment on Monday, the Labour Appeal Court said there could be no doubt that the strike notice given by Nehawu 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 South African Social Security Agency (Sassa), Special Investigating Unit (SIU) and the South African National Biodiversity Institute (SANBI)'," read the appeal court ruling.

"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 Section 65(1(d)(i) 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."

When called upon in February to confirm that it "will actively ensure that members rendering essential services will not participate in the strike", no response was received from Nehawu, the court said.

'Patently deficient'

"A more deplorable approach, with the gravest and, in some instances it appears, 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 the trade union had failed expressly when called upon to confirm that it would actively ensure that members rendering essential services would not participate in the strike.

The court said the union only stated that 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 that [the union’s] members comply with the law and picketing rules".

"Having been aware that 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 only conclusion which can be drawn from Nehawu's conduct in this regard is that, well aware that the strike notice did not expressly exclude essential services and that a strike by such employees was in breach of the law, the union nevertheless was content simply to let the situation unfold and make limited efforts, if at all, to prevent this."

The national Department of Health welcomed the judgment.

“We believe this judgment will bring some form of stability in health facilities across the country," said spokesperson Foster Mohale.

'We are almost at 100%'

The department added that the judgment was "a victory for the innocent, vulnerable" patients "who have suffered the consequences of the disruptive and violent strike action".

"We also believe Nehawu will implement the judgment and inform its members to return to work as soon as possible."

The Gauteng health department, which welcomed the court ruling, said it had noted that some hospitals had higher rates of staff attendance on Monday, compared to last week.

Acting HOD Lesiba Malotana said it was encouraging that some facilities had almost all staff back at work.

"This morning is slightly different than what we ended the week with. We are almost at 100% or 95% staff return at some facilities. It is encouraging. Optimally, all facilities are functioning, even where there are protests. The issues that the court interdicts directed to be done included access and free movement is allowed," he said.

"We are welcoming it. It was a slow start in the morning, and services were being rendered. We have seen staff arriving for work. The most affected areas are Thelle Mogoerane, Bheki Mlangeni and Sebokeng hospitals."

Malotana added that other facilities had witnessed sporadic protests.

Nehawu’s national spokesperson Lwazi Nkolonzi said the union's legal team would study the judgment.

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