South Africa, Johannesburg – The country’s biggest public service union, the National Education, Health and Allied Workers’ Union (Nehawu), is also considering taking the matter to the Constitutional Court after public sector unions failed in their bid to force the government to increase their salaries by between 4.4% and 5.4% on Tuesday.
Acting Labour Appeal Court Judge President Mmathebe Phatshoane, judges Dennis Davis and Phillip Coppin on Tuesday declared that the wage hikes were unlawful as they contravened the Constitution and parts of the Public Service Regulations.
The Public Service Association (PSA) and other affiliates of the Federation of Unions of SA representing state employees had approached the court to enforce the agreement singed in 2018.
The government lodged its counter application to have the agreement declared unenforceable, unaffordable, offending public policy, unlawful and that it contravenes parts of the Constitution that dictate how money in the national revenue fund should be spent and provisions relating to national, provincial and municipal budgets.
Judges Phatshoane, Davis and Coppin admitted that the dispute was far more complex.
”We have already found that a decision to find that it is just and equitable that the government pay the entire sum which flows from clause 3.3 (4.4 and 5.4%) for the period ending on March 31, 2021, cannot in and of itself be regarded as a just and equitable within the economic and social context within which this dispute is located,” reads the judgment.
The judges said they were not provided with a compromise remedy, leaving them to use their own discretion.
”It would be inappropriate for the court to attempt such a difficult fiscal balancing measure. And it is not the role of a court to do so,” they found.
PSA assistant general manager Reuben Maleka yesterday told Independent Media that the union would be consulting its members in early January based on the legal advice it will obtain.
”From now, it appears a strike being an ultimate weapon,” Maleka said.
Asked if the PSA, which has over 235 000 members, will consider going the Constitutional Court route, Maleka said the stronger contender was a strike than approaching the apex court, but that the decision would be taken next month.
Cosatu’s largest affiliate, Nehawu, which has over 274 000 members, has indicated that it had not abandoned the Public Service Co-ordinating Bargaining Council (PSCBC) arbitration process it initiated as it has been stayed pending the determination of the constitutionality and overall validity of 2018 resolution.
The union still maintains that the enforcement of a collective agreement is best executed at the PSCBC arbitration process.
After Tuesday’s ruling, Nehawu indicated that the legal route was one of many avenues that it was exploring to push government to pay public servants’ salary increases.
”We will be undertaking rolling mass action in the new year starting with the marches to Parliament and the Union Buildings on the day of the presentation of the budget speech in February 2021,” the union stated.
Nehawu will also consult its legal team on the suitable legal recourse, which it hopes will include petitioning the Constitutional Court.
”This is not the end of the fight but the beginning. The government must think twice if they think that we will take this lying down,” the union warned.