ARTICLES

 

The Future of Collective Bargaining between Labour and the Employer after the Case of Public Servants Association v Minister of Pubiic Service [2021] 3 BLLR 255 (LAC)

 

 

ME Nkuna-Mavutane; B Barends; VE Sibiya;; R Letseku

Stellenbosch University, University of Limpopo, South Africa. Email: 36060941@mylife.unisa.ac.za; brm@sun.ac.za; sibiya@sun.ac.za; Itumeleng.tshoose@ul.ac.za; letsekuattorneys@gmail.com

 

 

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ABSTRACT

This case note seeks to determine the future of collective bargaining after the Labour Appeal Court (LAC) judgment in Public Servants Association v Minister of Public Service [2021] 3 BLLR 255 (LAC). In arriving at a conclusion, context is provided. As part of the context it is shown that the right to engage in collective bargaining is not synonymous with the legal right to collective bargaining. This is based on the Constitution of the Republic of South Africa, 1996, case law and international law. Despite this, it is demonstrated that it can be argued that collective bargaining can be accepted as a recognised practice (a right) when one uses the test of what is a custom. It is further revealed that the main parties in public sector collective bargaining are the Public Service Coordinating Bargaining Council (PSCBC), the Department of Public Service and Administration, and trade unions. The last two ordinarily have competing interests and the PSCBC is the platform where they resolve their differences and enter into collective agreements. In 2018 a three-year wage agreement was reached for public servants, which the employer failed to implement in its last year. This led to the PSCBC intervening in the matter, but before it could reach fruition the matter was scheduled to be heard by the court. The last leg of the agreement was declared to be invalid and unenforceable on the basis that it was unaffordable and did not comply with the legal prescripts. This led to a period of uncertainty (2022-2023). This period saw government employees receiving 0% salary increases, failed wage negotiations, the unilateral imposition of a wage increase by the employer, a disruptive strike, and shorter wage agreements to address the shortcoming identified by the LAC in PSA v DPSA. The context provided yields the answer (the conclusion) that there is still room for collective bargaining, but that it will be filled with turbulence.

Keywords: Public service; collective bargaining; Public Service Coordinating Bargaining Council (PSCBC); Department of Public Service and Administration (DPSA); trade unions; resolution/agreement; National Treasury; strike; labour relations; Labour Relations Act (LRA); federation; tripartite alliance; wage.

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1 Introduction

Section 23 of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution), titled "labour relations", entrenches a group of guaranteed labour rights in South Africa.¹ As one of these rights, the employer and employees (parties)² have a right "to form and join" entities that will represent and advance their rights and/or interests.³ These rights or interests are normally advanced through collective bargaining.⁴

Collective bargaining can be described as "a process of negotiations between an [e]mployer and a group of employees (often represented by a [t]rade [u]nion) so as to determine the conditions of employment".⁵ The Code of Good Practice: Collective Bargaining defines collective bargaining as: "a voluntary process in which organised labour in the form of trade unions and employers or employers' organisations negotiate collective agreements with each other to determine wages, terms and conditions of employment or other matters of mutual interest".⁶

The engagement in collective bargaining is recognised as one of the rights encompassed under the umbrella of the rights related to labour relations.⁷The usage of the words "engagement in" means that the actual bargaining is not a legal right.⁸ Either the employer or trade union(s) may opt not to negotiate on a particular matter.⁹ To a greater extent this may be used as an explanation of why an employer may prefer to act unilaterally in certain instances.

Collective bargaining is a tool for both parties that they can use to achieve any of the following objectives:

• resolve conflict or potential conflict on "matters of mutual interests". This will ultimately reduce "unnecessary disputes";

• set a standard through which issues are ventilated. This will ultimately ensure that there is a level of "conformity and predictability" in the manner in which labour and the employer address issues;

• optimise "employee participation" in the day-to-day running of an institution; and

• achieve "labour peace"¹⁰ or industrial peace.¹¹

Over and above the stated objectives, it needs to be emphasised that the aim of collective bargaining is to reach an "equitable settlement on matters of mutual interest" by negotiating such issues. In the public service bargaining is ordinarily sealed with a collective agreement/resolution.¹² The body mandated to facilitate the achievement of this result is the Public Service Coordinating Bargaining Council (PSCBC).

In the year 2018 such an agreement was reached between the employer and employee representatives, namely PSCBC Resolution 1 of 2018 (hereafter the wage¹³ agreement).¹⁴ In principle, once the employer and trade unions (with sufficient voting power) have signed a proposed agreement, such an agreement is viewed as binding on all the parties concerned.¹⁵

The agreement was not fully honoured by the employer, which disproved the notion that once ratified, an agreement is binding on all. This led to two court challenges, both of which favoured the employer.¹⁶ The conclusion of the wage agreement and its non-enforceability raises the question: What is the future of bargaining between labour (public servants on salary level 1 to 12) and the employer (the Department of Public Service and Administration, hereafter the DPSA)?¹⁷

To answer this question, the authors consider the following: the mandate of the PSCBC, actors in the PSCBC machinery, the collective agreement that caused the dispute (actions of the employer during the last leg of the agreement), the Labour Appeal Court (hereafter the LAC) judgment, eventualities of the LAC judgment, and what is likely to follow next.

In view of the LAC and Constitutional Court judgments, the primary aim of this case note is to inquire into the recent intricate challenges that have beset the system of collective bargaining in the public service in South Africa. The case note examines not only the constitutional and statutory context of collective bargaining but also the contours of collective bargaining as exemplified in seminal labour law cases of recent vintage.

 

2 The mandate of the Public Service Coordinating Bargaining Council (PSCBC)

As the PSBC is the entity which facilitated the wage agreement it is essential that its role be elaborated on. It is an independent institution created by the LRA.¹⁸ It has bargaining councils which are sector-specific (see Figure 1).

 

 

The core of its existence is to "maintain good labour relations in the Public Service".¹⁹ As a platform between labour and employers, the PSCBC performs the following functions:

• It serves as the machinery through which labour and employers in the public service reach resolutions on various matters. This may include conditions of employment, such as salaries and wages.

• It serves as either a mediator or an arbitrator in disputes between labour and employers in the public service.

• It facilitates the hearing of disputes between labour and employers in the public service.

• It seeks to "promote good governance, inclusive research and strategic partnerships".²⁰

 

3 Actors in the PSCBC machinery

The main actors are labour and employers.²¹ Neither of these actors can meet and discuss all matters at the same time. As a result, they are represented by others. The employer is represented by the DPSA. Labour is represented by recognised trade unions that have a membership or combined membership of 50 000 or more (see Table 1 for recognised unions that meet the threshold). Table 1 further shows how the parties that represent labour have voted on approved wage agreements between 2015 and 2023. It also shows how much voting power each of these actors has.

Among their labour-related rights, trade unions also have the option of joining a federation. Most of the parties in this machinery are affiliated with the Congress of South African Trade Unions (hereafter COSATU).²² The rest are affiliated with the Federation of Unions of South Africa (hereafter FEDUSA).²³ The table also shows how this influences voting patterns.

As already indicated in paragraph 2, the PSCBC engages in matters between labour and the employer. It provides the space for labour and employees to meet and serves as a mediator or arbitrator in a matter referred to it by either labour or the DPSA.²⁴

 

4 The collective agreement that caused the dispute (actions of the employer during the last leg of the agreement)

On 8 June 2018 most of the trade unions²⁷ subscribed to a three-year salary agreement, and PSCBC Resolution 1 of 2018 was reached.²⁸ Table 2 outlines the essence of the agreement. Table 1 shows which parties ratified the agreement. The employer gave effect to the agreement during the first two financial years. In the last year of the agreement a dispute was lodged by the employer. The employer stated that it was unable to give effect to the last leg of the resolution, citing affordability challenges.²⁹

The dispute was set for conciliation, which failed to yield any positive outcome. As a result, the dispute was eventually set for arbitration. Prior to the arbitration being finalised, the PSA set an application for the enforcement of the resolution at the Labour Court.³⁰

 

5 The Labour Appeal Court (LAC) judgment

As previously indicated, prior to the arbitration of the dispute between labour and the employer, the PSA took the employer to the Labour Court.³³ The employer also brought about a counter-application, namely a declaratory order to set aside the resolution.³⁴ As opposed to hearing the applications separately, both were heard simultaneously by the LAC.³⁵

The matter was decided in favour of the employer.³⁶ The LAC pronounced itself as follows:

It is declared that the enforcement of clause 3.3 of Resolution 1 of 2018 (the Resolution) is unlawful for contravention of ss 213 and 215 of the Constitution of the Republic of South Africa, 1996 and Regulations 78 and 79 of the Public Service Regulations, 2016.³⁷

 

6 Eventualities of the LAC judgment

In arriving at a determination, the LAC understood that its decision might have unintended consequences.³⁸ One of these consequences was that public servants did not receive a salary increase for the 2020/2021 financial year. The eventualities of the judgment can be documented up to April 2023.

6.1 The 2021 wage agreement and the appeal of the LAC judgment

In July 2021 a new wage agreement was reached, namely PSCBC Resolution 1 of 2021. The argument can be made that the agreement was made in the hope that the Constitutional Court would rule in favour of labour and that, as such, this resolution was a transitional measure while a bigger outcome was awaited.³⁹

As opposed to many other previous agreements it was distinguished by the following:

• It was a single-year agreement (2021/2022).

• It introduced a non-pensionable allowance (a cash gratuity) with amounts ranging from R1 220 to R1 695.⁴⁰ This allowance was set for a year or until a new resolution was reached.

• It made provision for a pensionable 1.5% increase (commonly associated with performance assessment, which saw persons not eligible to receive it due to being on probation or having top notches on any of the 12 salary levels of public servants being accommodated in the agreement).

• It included a compliance clause, which addressed the shortcoming identified by the LAC in the 2018 resolution.⁴¹

• The agreement was reached speedily and there were only two parties that did not ratify the agreement (see Table 1).

• The CPI was not used as a measure of determining salary increments.

• The signatory of the employer was the Director General of the DPSA, as opposed to a delegated person.⁴²

In August 2021 the Constitutional Court finally heard the appeal against the LAC judgment and the judgment was handed down at the end of February 2022. As previously stated, it did not go as labour had anticipated. The following things stand out about this matter at the Constitutional Court:

• Though having the nature of an appeal, the matter was not treated as an appeal in its entirety. Parties such as NEHAWU, SADTU and POCRU were initially cited as respondents in the appealed judgement. In the current case they were cited as applicants. They moved from taking a passive role in the matter to being the main role players, with the party who would ordinarily be cited as the appellant.

• The court also stood by the LAC decision that the wage agreement violated sections 213 and 215 of the Constitution and Regulations 78 and 79 of the Public Service Regulations. It went further and declared that these clauses were peremptory and required exact compliance.⁴³

• In addition to the above they included section 39 of the Public Finance Management Act 1 of 1999 (hereinafter the PFMA). The provision deals with budgetary controls. It places a duty on accounting officers to ascertain that there are budgetary controls. The court went on to explain that these mechanisms of the gaining approval of National Treasury were aimed at preventing over spending, protecting members of the public at large, ascertaining that there is transparency in the spending of public funds, and expenditure control as envisaged in section 39 of the PFMA.⁴⁴

• It was argued that in this particular instance the court should use the principle of estoppel against the DPSA. The court found that the principle could not be used to achieve an outcome that was not permissible in law.⁴⁵The court went on to confirm the LAC's judgement.⁴⁶

6.2 The proposed 2022 wage agreement

With this short-term solution (see paragraph 6.1) having been reached, and the Constitutional Court having ruled against labour, the parties went back to the drawing board. They failed to reach an agreement and the offer that was tabled by the employer failed to be ratified by the majority of unions within 21 days. As such, it collapsed.⁴⁷

By November 2022 the following had occurred:

• The employer had unilaterally⁴⁸ granted employees a 3%⁴⁹ salary increase.⁵⁰

• The employer had announced that the non-pensionable allowance (cash gratuity) would continue being paid until the end of the 2022/2023 financial year.

• The PSA declared a dispute regarding the proposed wage agreement. The Commissioner of the PSCBC subsequently issued the PSA with a non-resolution certificate. A subsequent meeting was set between the PSA and the employer, during which picketing rules were agreed upon. Numerous pickets were conducted by PSA members over the month of November. On 10 November, PSA members embarked on a strike supported by other unions affiliated with FEDUSA.⁵¹

• NEHAWU followed the same route as the PSA. It was joined by POPCRU, DENOSA, and HOSPERSA. However, they did not go on strike instantly. They opted to embark "on several pickets; marches; handing in of memorandum of demands to government; and mass protests throughout the country" to implement their action in the same year (month). It was delayed to the following year; as discussed in paragraph 6.3.⁵²

• There have been numerous claims that there was a public sector strike over the unilateral decision by the employer.⁵³

These actions set the tone for what was to occur next: NEHAWU became the game-changer.

6.3 National Education, Health and Allied Workers' Union (NEHAWU) as the game-changer

After the unilateral decision was taken to increase public servants' salaries by 3%, attempts were made to conclude a new wage agreement for the financial years 2023/2024, 2024/2025, and 2025/2026 (a three-year deal). For the financial year 2023/2024, the employer proposed a 4.7%⁵⁴ increase, and for the last two legs it proposed an increase equivalent to the CPI (capped at 6.5%).⁵⁵Labour tabled a counter-offer. It proposed a single-term (financial year) agreement that made provision for a 10% increase across all salary levels.

The fact that the government failed to react positively to various union actions, as elaborated on in paragraph 6.2, the 3% unilateral wage increase, and the government's unwillingness to negotiate openly (as opposed to making a take-it-or-leave-it offer) persuaded NEHAWU to embark on a strike. On 23 February 2023, a day after the budget speech by the Minister of Finance, NEHAWU notified the DPSA of its intention to go on strike ("strike action, picket, or any other form of industrial action") on 6 March 2023.⁵⁶

The DPSA went to court to interdict the action. In arguing for the interdict, the DPSA contended that there was a prolonged delay between the granting of a certificate by the Commissioner of the PSCBC and the actual strike (November to February).⁵⁷ Furthermore, it contended that the notice issued by NEHAWU was defective in that it referred to "a public service wide strike", which included employees outside the scope of the non-resolution certificate issued by the PSCBC (this included those employed by the South African Social Security Agency (hereafter SASSA), the Special Investigation Unit (hereafter SIU), and the South African National Biodiversity Institute (hereafter SANBI)) and furthermore failed to explicitly exclude employees offering essential services⁵⁸from the scope of public sector employees.⁵⁹

NEHAWU opposed the DPSA's application. It relied on the following three issues: non-joinder, alleged non-compliance with the provisions of section 68(2) of the LRA,⁶⁰ and a lack of urgency or self-created urgency.⁶¹ The DPSA had failed to join other parties with sufficient interest.⁶² In furthering this point NEHAWU contended that what the DPSA was supposed to dispute was not the notice to strike but the non-resolution certificate issued by the PSCBC. As such, the DPSA ought to have included the Commissioner who issued the non-resolution certificate in the proceedings.⁶³ This view was not upheld by the court, who noted that the test of a joinder plea is well established in law and NEHAWU was not in a position to show prejudice to other parties (POPCRU, HOSPERSA and DENOSA) it sought to be joined on the current matter before the court, interdict of a notice to strike (actual strike).⁶⁴

In relation to the alleged non-compliance with the provisions of section 68(2) of the LRA, NEHAWU contended that the DPSA had failed to give it 48 hours' notice. The court took into account that the DPSA had failed to comply with the requirement by only three hours. The court interpreted the clause purposively and took into consideration that NEHAWU had not suffered any notable prejudice because of the substantial compliance of the DPSA with section 68(2) of the LRA. It further noted that the matter had been set down for 3 March 2023 but was only heard on 4 March 2023 (by agreement between the parties). This gave sufficient opportunity to NEHAWU to supplement its replying affidavit. As such, the substantial compliance by the DPSA was held to be sufficient.⁶⁵

The last ground for opposing the application was a lack of urgency.⁶⁶ This was premised to a great extent on the non-compliance with the provisions of section 68(2) of the LRA. The court had already addressed this matter. The alternative argument presented by NEHAWU was that the urgency was self-created. In replying to this the court detailed the timeline since the issuing of the notice to strike and the various pieces of correspondence between the parties. It showed that NEHAWU had the opportunity to fix the noted defect and chose not to. As such, the DPSA only had access to court as its last resort. The court held that in the absence of its hearing the matter, the DPSA was likely to suffer prejudice or material harm.⁶⁷

On 4 March 2023 an interdict was issued by the Labour Court, and the reasons for its being granted were issued on 6 March 2023.⁶⁸ On the same day the Labour Court issued an order for the judgement to be executed.⁶⁹ The execution order was appealed, and the appeal was heard on 10 March 2023. The LAC made an interim order that replaced the enforcement order. It ordered that the following should be done until any ensuing appeal was heard:

• All essential services employees who are covered by the PSCBC were "restrained and prevented" from participating in any action relating to the notice served by NEHAWU to the DPSA on 23 February 2023.

• Employees represented by NEHAWU in SASSA, the SIU, and SANBI were also barred from participating in any activity relating to the NEHAWU notice of 23 February 2023.

• NEHAWU was ordered to use all available platforms to bring to attention the content of the order to its members and officials. It was emphasised that the order needed to be brought to the specific attention of NEHAWU-affiliated employees in hospitals and clinics in South Africa. This was so because this was the most disrupted sector.⁷⁰

After the court battles the NEHAWU strike was eventually called off. This was as a result of a settlement between labour and the employer. This created hope that there was still room for collective bargaining and preventing the employer from acting unilaterally.⁷¹ The parties furthermore agreed that the 2023/2024 agreement (as outlined in paragraph 6.4) would take into consideration the disputes outlined in paragraph 6.2.⁷²

6.4 The 2023 wage agreement

A two-year wage agreement was reached on the eve of the 2023/2024 financial year, namely PSCBC Resolution 2 of 2023. In a way, the conclusion of this agreement can be attributed to the efforts of NEHAWU, even though it did not ratify it.

The positives that can be taken from this agreement include the fact that the employer moved away from its initial salary increase offer of 0.5% and desisted from taking further unilateral actions on matters that had traditionally been resolved through collective bargaining. Further conclusions from this agreement include the following:

• The legalisation (ratification) of the payment of the non-pensionable cash allowance for the financial year 2022/2023. It may be argued that this had already been covered by the 2021 wage agreement. However, if one factors in the unilateral increase for the financial year 2022/2023, one can argue that the allowance should have ceased to exist when the 3% increase was paid and, as such, the employer was within its rights to seek to recoup the allowances (monies) paid in the 2022/2023 financial year. This clause prevents such an action from being undertaken by the employer.

• The agreement of a two-year deal shows that there is progress in attempting to bridge the trust deficit between the parties (see paragraph 7).

• The employer has agreed on clauses that address inflation (see Table 3).

• There were attempts to agree on other issues such as the Government Employees Housing Scheme.

• Like the 2021 resolution, there is a compliance clause. The DPSA can no longer run to court and state that it does not have a financial mandate from National Treasury.⁷³

• The time when the agreement was reached (the last day of the financial year) gives hope that if both parties commit to collective bargaining and neither bargains from a take-it-or-leave-it position, we may have an agreement that may be sealed before the annual budget speech in February.

• Like the agreement before it, the signatory of the employer was the Director General of the DPSA, as opposed to a delegated person

 

7 What is likely to follow next?

The partial non-fulfilment of the 2018 resolution broke the trust between labour and the employer (trust deficit). On the issue of trust deficit, Grawitzky poignantly remarked that:

Lack of capacity, basic negotiating skills, trust between partners, the power of negotiators to influence and educate their own constituencies, turnover of the [t]he bargaining environment has begun to look more adversarial not only because of the quality of bargaining, across both private and public sector, but the lack of trust which exists between the parties with no real dialogue happening on the shopfloor between line management and employees on how to influence business outcomes.⁷⁵

This trajectory is likely to be a major obstacle in the future negotiation pattern. As already seen, labour is unwilling to enter into any long-term agreement with the employer; they ratified only a single and a two-year agreement with numbers that do not inspire confidence or bring about a sense of labour peace.⁷⁶

Since 2018 there have been only two wage agreements which were not in line with the standard three-year agreement. Both these agreements focused merely on the take-home wages and salaries of the public servants. These resolutions included a clause to address the shortcoming identified in PSA v DPSA (lack of financial approval from National Treasury) and were signed for the employer by the Director General of DPSA. This clause will most likely feature in all future wage agreements to ensure that the employer is never again in a position to claim that there was no financial approval and that as a result the sealed agreements are null and void. Furthermore, the usage of the Director General of DPSA as a signatory is likely to continue in an effort to repair the trust deficit.

As a result of this deficit in trust the PSCBC is now reduced to an entity that yields only short-term results (one- or two-year agreements).⁷⁷ This speaks in a way to the acceptability of the PSCBC as a mechanism to settle disputes between labour and the employer. As seen in PSA v DPSA, NEHAWU v DPSA, DPSA v NEHAWU, and NEHAWU v DPSA 2023, the main actors are now inclined to use the courts to resolve their disputes. This further strengthens the notion that the PSCBC is no longer the preferred arena in which to settle disputes between parties.

This state of affairs has shown that labour is dynamic and, as such, it presents fertile enough grounds for intra-labour rivalry.⁷⁸ The unions with the majority vote (55.89%) (see Table 1) in the PSCBC are members of COSATU. They can be viewed as the key drivers in determining what will be ratified and what will be allowed to 'die a slow death' (such as the draft resolution of 2022).⁷⁹ Their vote is dependent to some extent on the following two aspects: the current state of the "tripartite alliance"⁸⁰ and the current living (working) conditions of the employees they represent.⁸¹

It has always been known that the African National Congress (ANC) is the lead member in the tripartite alliance. The other two parties can therefore merely lobby and be given certain positions in the government.⁸² Over time, this has not worked well for the South African Communist Party (SACP) and COSATU, or quite arguably for labour. This is linked to a certain extent to the working (living) conditions of their members.⁸³ Faced with an economy that is not growing fast enough, the higher demands of life (rising food and fuel costs, rising interest rates, increasing electricity tariffs, et cetera), and the employer's inability to give effect to their demands (giving effect to the last leg of the 2018 resolution and demands for salary increases above the CPI), the tripartite alliance is unlikely to hold as well as in the early years of South African democracy.⁸⁴ The weaker it is (or is perceived to be), the more difficult things will be for labour.

This makes it possible that a salary increase below CPI may still be reached in the near future (beyond the 2024/2025 financial year).⁸⁵ The opposite may be true; if COSATU takes a resolution on the negotiations, then SADTU will be bound by it.⁸⁶ Such a resolution will decrease the probability of having a salary wage agreement that is below the CPI. Regardless of which side history absolves, trade unions will still demand an increase above the CPI. This is not only in their interest, but also in the interest of labour.

In response to the demand for wage increments above the CPI, the employer is most likely to stick to its plan of reducing the cost of compensating employees (hereafter COE). The non-fulfilment of the 2018 resolution was one of the measures it took. In addition, it also reduced the COE in relation to performance bonuses.⁸⁷ Other avenues that it may consider include the non-filling of vacancies due to turnover⁸⁸ and the stopping of various allowances (acting, standby, cell phone, and travel allowances). In instances where labour does not want to reduce certain items in an agreement, the employer might continue to act unilaterally.

Mahmood and Banerjee acknowledge that "the status of collective bargaining has been debated, if not doubted, in recent times, with the weakening of the bargaining power of labour vis-a-vis employers, enfeebled workplace solidarity and increasing decentralization of bargaining".⁸⁹ Similarly, Botha maintains that the "collective bargaining process ensures that the interests of employees can be enforced by themselves or their trade union representatives, and also that an economic exchange between the collective workforce and the employer takes place".⁹⁰ Therefore, it becomes clear that collective bargaining is not only about salaries; it includes what one may term "ancillary matters".

In the public sector this may include the following: medical subsidies, housing subsidies, leave, danger allowances, et cetera. With the 2018 wage agreement having come to an abrupt end, all ancillary matters are most likely to continue being stagnant. This view excludes issues that have their own standing agreement (resolutions). It is submitted that there are 'low- hanging fruit/[issues]' that ought to be addressed in order to improve collective agreement relating to wages in the public service. For example, matters relating to medical subsidies, cost of living, housing subsidy must be integral part of salary negotiations. Furthermore, engaging labour on these matters has the potential of resuscitating the smooth resolution of disputes in the public service. In this context Recommendation No. 163 provide practical guidance for promoting collective bargaining. For example, Recommendation No.163 encourages, among others, that both parties have access to the information required for meaningful negotiations; parties must agree on procedures for the settlement of labour disputes and find a solution to the dispute themselves.⁹¹

One of the mechanisms used to deal with a dispute arising from collective bargaining is a strike or lockout. NEHAWU has proved that this is a possible action in the absence of an agreement. It has shown that the employer is most likely to be coerced into an agreement if employees embark on an industrial action that affects services such as health.

A strike by workers in the current conditions seems unlikely, but when one considers what occurred in 1999, one cannot completely rule it out. If trade unions (especially COSATU-affiliated unions) could reach an agreement on it, it might be a reality. It was largely they who carried out the 1999 strike.⁹²

 

8 Conclusion

This case note has sought to determine the future of collective bargaining after the LAC's PSA v DPSA judgment. In considering this dilemma the authors have looked at the following: the legal status of collective bargaining, the arena of collective bargaining in the public sector, the primary players in this mechanism, the collective agreement that caused the dispute (the actions of the employer during the last leg of the agreement), the LAC judgment, eventualities of the LAC judgment, and what is likely to follow next.

Major emphasis was placed on collective bargaining. Collective bargaining is an important instrument in the employee-employer relationship. Although not identified as a right by section 23 of the Constitution, case law, or regulation, it has been shown that it can be argued that the engagement in collective bargaining by public servants (through their trade unions) and the employer (through the DPSA) constitutes a legally recognised practice (a custom). It has further been shown that it is in the best interest of both parties to engage in it.

The arena of public sector bargaining was introduced in terms of the PSCBC. It was noted that the PSCBC is divided into sector-specific bargaining councils (see Figure 2). The actors in this arena were also introduced. It was shown that the PSCBC is a player (an adjudicator) between the DPSA and the trade unions. In relation to the trade unions, it was shown which unions have a right to represent employees' rights and interests at the PSCBC and which federations they belong to (see Table 2).

A collective agreement (PSCBC Resolution 1 of 2018) was facilitated by the PSCBC (see Table 2, which covers the essence of the agreement). The employer failed to give effect to the last leg of the agreement. When the PSCBC was about to arbitrate the matter, the PSA made an application to the Labour Court. The employer counteracted this application with its own declaratory application (seeking to declare the agreement null and void). As opposed to hearing the matters separately, the LAC heard both cases simultaneously. The LAC decided in favour of the employer and declared clause 3.3 of the agreement to be invalid as there had been no approval by National Treasury and the government did not have the financial means to meet the demands of labour.

The LAC judgment created (what some may view as) unintended consequences. The following are key findings in terms of the eventualities of the LAC judgment: as opposed to getting an increase in 2021, public servants received a non-pensionable allowance (cash gratuity) for two financial years; in 2022 the government unilaterally implemented a 3% salary increase; at the beginning of 2023 a strike led by NEHAWU changed the views of the government on collective bargaining (movement from unilateralism to pluralism, which advocates collective bargaining), meaning parties were able to negotiate and this led the government to improve its offering for the 2023/2024 financial year.

With the above context established, one is in a better position to answer the question posed at the beginning of the case note: What is the future of bargaining between labour (public servants on salary level 1 to 12) and the employer (the DPSA)? There is a hope that collective bargaining will continue between labour and employers. One will need to account for the trust deficit between the parties, inter and intra-union rivalry (in labour and the tripartite alliance), the demands of labour for salary increases above the CPI, non-attendance to other matters associated with bargaining, unilateral decision-making by the employer, and little prospect of fully blown industrial action (strikes). As such, when bargaining occurs it will do so under these constraints, and it is most likely to be dominated by the issue of salary increases while ancillary matters take a back seat.

 

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Heywood A Politics 5^th ed (Red Globe Press London 2019)        [ Links ]

Hutchison D and Pretorius CJ (eds) The Law of Contract in South Africa 3^rd ed (Oxford Cape Town 2017)        [ Links ]

Leppan F, Govindjee A and Cripps B "Bargaining in Bad Faith in South African Labour Law: An Antidote?" 2016 Obiter 474-486        [ Links ]

Mahmood Z and Banerjee S "Towards what End? Collective Bargaining and the Making and Unmaking of the Working Class" 2023 Economic and Industrial Democracy 964-985        [ Links ]

McGregor M et al Labour Rules 4^th ed (Siber Ink Cape Town 2021)        [ Links ]

Molusi AP "The Constitutional Duty to Engage in Collective Bargaining" 2010 Obiter 156-166        [ Links ]

Pillay D "The South African Essential Services Committee Part I: The Definition of Essential Services in South Africa" 2001 Southern African Business Review 57-60        [ Links ]

Van Niekerk A et al Law@Work 5^th ed (LexisNexis Durban 2018)        [ Links ]

Case law

Absa Bank Ltd v Naude 2016 6 SA 540 (SCA)

Judicial Service Commission v Cape Bar Council 2013 1 SA 170 (SCA)

Minister for the Public Service and Administration v National Education, Health and Allied Workers Union [2023] JOL 58172 (LC)

National Education Health and Allied Workers Union v Minister of Public Service and Administration 2022 6 BCLR 673 (CC)

NEHAWU v Minister for the Public Service and Administration 2023 6 BLLR 487 (LAC)

Public Servants Association v Minister of Public Service and Administration 2021 3 BLLR 255 (LAC)

Shilubana v Nwamitwa 2008 9 BCLR 914 (CC)

SANDU v Minister of Defence 2007 8 BCLR 863 (CC)

SANDU v Minister of Defence; Minister of Defence v SANDU 2007 4 BCLR 398 (SCA)

Van Breda v Jacobs 1921 AD 330

Legislation

Constitution of the Republic of South Africa, 1996

Labour Relations Act 66 of 1995

Public Finance Management Act 1 of 1999

Superior Courts Act 10 of 2013

International instruments

Collective Bargaining Recommendation No. 163 of 1981

Convention (No 154) Concerning the Promotion of Collective Bargaining (1981)

Government publications

GNR 1396 in GG 42121 of 19 December 2018

Internet sources

Congress of South African Trade Unions date unknown Contact Union http://mediadon.co.za/unions-contact/ accessed 16 April 2023        [ Links ]

Department of Public Service and Administration 2019a Circular No 01 of 2019 https://www.dpsa.gov.za/dpsa2g/documents/rp/2019/18_1_p_30_01_2019.pdf accessed 16 April 2023        [ Links ]

Department of Public Service and Administration 2019b Adjustment of the Housing Allowance for Public Service Employees https://www.dpsa.gov.za/dpsa2g/documents/cos/2019/17_3_p_05_08_2019.pdf accessed 23 February 2023        [ Links ]

Department of Public Service and Administration 2020 Adjustment of the Housing Allowance for Public Service Employees https://www.dpsa.gov.za/dpsa2g/documents/cos/2020/17_3_p_24_7_2020.pdf accessed 23 February 2023        [ Links ]

Department of Public Service and Administration 2022a Circular No 47 of 2022 https://www.dpsa.gov.za/dpsa2g/documents/cos/2022/17_3_p_4_10_2022.pdf accessed 17 April 2023        [ Links ]

Department of Public Service and Administration 2022b Circular No 50 of 2022 https://www.dpsa.gov.za/dpsa2g/documents/rp/2022/18_1_p_26_10_2022A.pdf accessed 24 February 2023        [ Links ]

Department of Public Service and Administration 2023 Circular No 20 of 2023 https://www.dpsa.gov.za/dpsa2g/documents/rp/2023/18_1_p_06_04_2023.pdf accessed 20 April 2023        [ Links ]

Duma N 2022 SADTU Takes Govt's 3% Salary Hike Offer, Says Wage Strike Won't Benefit Members https://ewn.co.za/2022/10/06/sadtu-takes-govt-s-3-salary-hike-offer-says-wage-strike-won-t-benefit-members accessed 16 April 2023        [ Links ]

Federation of Unions of South Africa 2021 Affiliated Trade Unions http://www.fedusa.org.za/unions-2/ accessed 17 April 2023        [ Links ]

Grawitzky R 2011 Collective Bargaining in Times of Crisis: A Case Study of South Africa https://www.ilo.org/wcmsp5/groups/public/-ed_dialogue/-dialogue/documents/publication/wcms_175009.pdf accessed 23 January 2024        [ Links ]

National Education, Health and Allied Workers' Union 2023 NEHAWU Clarifies Public Service Strike at Newsroom Afrika https://www.nehawu.org.za/NEHAWU%20Statement%20On%20The%20Public%20Service%20Strike%2015%20March%202023.html accessed 17 April 2023        [ Links ]

National Treasury 2023 Media Statement: 2023 Public Sector Coordinated Bargaining Council Outcome https://www.treasury.gov.za/comm_media/press/2023/2023033101%20Media%20statement%20-%202023%20Public%20sector%20coordinated%20bargaining%20council%20outcome.pdf accessed 19 April 2023        [ Links ]

Public Servants Association 2022 Media Release: PSA/Fedusa Public-Service Strike to Continue on 10 November 2022 https://www.psa.co.za/docs/default-source/psa-documents/media-statements/psa-fedusa-public-service-strike-to-continue-on-10-november-2022.pdf?sfvrsn=59996bfc_4 accessed 17 April 2023        [ Links ]

Public Servants Association 2023 Public Service Wage Negotiations Update https://www.psa.co.za/docs/default-source/psa-documents/newsletters/2023-to-be-used-from-3-january-2023/pscbc-17022023.pdf?sfvrsn=5dab0434_4 accessed 27 February 2023        [ Links ]

Public Service Coordinating Bargaining Council 2017 Public Service CoOrdinating Bargaining Council (PSCBC): Information Brochure https://pscbc.org.za/index.php/sample-page/pscbc-information-brochure accessed 23 February 2023        [ Links ]

Public Service Coordinating Bargaining Council 2018 PSCBC Resolutions 2018 https://pscbc.co.za/index.php/collective-bargaining/psbc-resolutions-docman/2018-1 accessed 23 February 2023        [ Links ]

Public Service Coordinating Bargaining Council 2021a PSCBC Resolutions 2021 https://pscbc.co.za/index.php/collective-bargaining/psbc-resolutions-docman/2021 accessed 24 February 2023        [ Links ]

Public Service Coordinating Bargaining Council 2021b Vote Weights https://pscbc.co.za/index.php/collective-bargaining/vote-weights accessed 27 February 2023        [ Links ]

Public Service Coordinating Bargaining Council 2022 Press Release: Public Service Wage Negotiations https://pscbc.co.za/index.php/docman/media-statements/2231-pscbc-media-release-update-on-wage-negotiations-081122/file accessed 24 February 2023        [ Links ]

Public Service Coordinating Bargaining Council 2023a Press Release: PSCBC: Breakthrough of Impasse https://pscbc.co.za/index.php/docman/media-statements/2250-pscbc-media-release-140323-oo-bn-002/file accessed 17 April 2023        [ Links ]

Public Service Coordinating Bargaining Council 2023b PSCBC Resolutions 2023 https://pscbc.co.za/index.php/collective-bargaining/psbc-resolutions-docman/2023 accessed 16 April 2023        [ Links ]

Sithole S 2022 Police Union Withdraws its SAFTU Affiliation https://www.iol.co.za/the-star/news/police-union-withdraws-its-saftu-affiliation-24705195-4afd-4615-9930-7ffc9def82e4 accessed 17 April 2023        [ Links ]

South African Federation of Trade Unions 2023 Affiliates https://saftu.org.za/affiliates/ accessed 17 April 2023        [ Links ]

South African Government 2022 Public Service and Administration on 2022/23 Public Service Wage Negotiations https://www.gov.za/speeches/update-202223-public-service-wage-negotiations-9-nov-2022-0000 accessed 24 February 2023        [ Links ]

Staff Reporter 1999 Nehawu Rejects Implementation https://mg.co.za/article/1999-08-17-nehawu-rejects-implementation/ accessed 2 May 2023        [ Links ]

List of Abbreviations

ANC African National Congress

COE Compensations of employees

COSATU Congress of South African Trade Unions

CPI Consumer Price Index

DENOSA Democratic Nursing Organisation of South Africa

DPSA Department of Public Service and Administration

FEDUSA Federation of Unions of South Africa

GEPF Government Employees Pension Fund

HOSPERSA Health and Other Service Personnel Trade Union of South Africa

LAC Labour Appeal Court

LRA Labour Relations Act 66 of 1995

NAPTOSA National Professional Teachers' Association of South Africa

NEHAWU National Education, Health and Allied Workers' Union

POPCRU Police and Prisons Civil Rights Union

PFMA Public Finance Management Act 1 of 1999

PSA Public Servants Association

PSCBC Public Service Coordinating Bargaining Council

SACP South African Communist Party

SADTU South African Democratic Teachers Union

SAFTU South African Federation of Trade Unions

SANBI South African National Biodiversity Institute

SANDU South African National Defence Union

SAPU South African Police Union

SASSA South African Social Security Agency

SIU Special Investigation Unit

 

 

Date Submitted: 21 June 2023
Date Revised: 12 May 2024
Date Accepted: 12 May 2024
Date Published: 23 August 2024

 

 

Editor: Prof C Rautenbach
Journal Editor: Prof W Erlank
* Matthews Eddie Nkuna-Mavutane. B Mil (HOD) BPA (Hons) LLB MPA LLM. Former Lecturer in Public and Mercantile Law, Stellenbosch University, South Africa. Email: 36060941@mylife.unisa.ac.za. ORCiD: https://orcid.org/0000-0002-1710-3159.
** Brigitte Barends. Public Management Public Man Hons MA Public Man. Lecturer in Public and Development Management, Stellenbosch University, South Africa. Email: brm@sun.ac.za. ORCiD: https://orcid.org/0009-0006-5572-5043.
*** Vukile Ezrom Sibiya. LLB LLM Lecturer in Public and Mercantile Law, Stellenbosch University, South Africa. Email: sibiya@sun.ac.za. ORCiD: https://orcid.org/0009-0004-8012-7411
**** Clarence Itumeleng Tshoose. LLB, LLM (NWU); LLD (Unisa). Professor, Department of Mercantile and Labour Law, School of Law, University of Limpopo, Polokwane, South Africa. Email: Itumeleng.tshoose@ul.ac.za. ORCiD: https://orcid.org/0000-0002-1663-0301.
***** Reuben Letseku. B.Juris, LLB (UN) LLM in Labour Law (Georgetown University) Certificate in Human Rights (UJ) Certificate in Arbitration George Meany Centre for Labour Studies. Senior Lecturer, Department of Mercantile and Labour Law, School of Law, University of Limpopo, Polokwane, South Africa. Email: letsekuattorneys@gmail.com. ORCiD: https://orcid.org/0009-0009-5312-3251.
1 Note that these rights must be understood in the context of other rights (or the Constitution of the Republic of South Africa, 1996 as a whole). This is termed "systematic interpretation"; see Botha Statutory Interpretation 209. Also see Finnemore, Koekemoer and Joubert Labour Relations 186; Garbers, Le Roux and Strydom Labour Law 455. They contend that these rights must be understood with the right to freedom of association in s 18 of the Constitution. These rights are further protected by ss 4-10 of the Labour Relations Act 66 of 1995 (hereafter the LRA).
2 Finnemore, Koekemoer and Joubert Labour Relations 185 also include the state as a party in this relationship. It may be in the form of the entities mentioned in paras 3 and 5.
3 See ss 23(2)(a) and 23(3)(a) of the Constitution.
4 The term "collective bargaining" is used interchangeably with "bargaining" throughout the article. Also see Art 2 of Convention (No 154) Concerning the Promotion of Collective Bargaining (1981) (hereafter Convention 154).
5 The Public Service Coordinating Bargaining Council's (hereafter PSCBC) information brochure can be accessed at PSCBC 2017 https://pscbc.org.za/index.php/sample-page/pscbc-information-brochure. This description is materially similar to that contained in item 4(1) in GNR 1396 in GG 42121 of 19 December 2018. It describes collective bargaining as a "voluntary process in which organised labour in the form of trade unions and employers or employers' organisations negotiate collective agreements with each other to determine wages, terms and conditions of employment or other matters of mutual interest". Also see Garbers, Le Roux and Strydom Labour Law 425.
6 GNR 1396 in GG 42121 of 19 December 2018.
7 McGregor et al Labour Rules 192-199.
8 Section 23(5) of the Constitution; Garbers, Le Roux and Strydom Labour Law 425. The Supreme Court of Appeal held that collective bargaining is not a right. It is rather a mechanism through which disputes can be resolved. See SANDU v Minister of Defence; Minister of Defence v SANDU 2007 4 BCLR 398 (SCA) para 10; SANDU v Minister of Defence 2007 8 BCLR 863 (CC) para 50; Garbers, Le Roux and Strydom Labour Law 425. This position has been reiterated by item 4(4) in GNR 1396 in GG 42121 of 19 December 2018. This is in line with Art 4 of Convention 154, which recognises collective bargaining as "voluntary negotiation[s]". Despite this position as outlined by the Constitution, case law, and statute, an argument can be made that collective bargaining in the public sector meets the requirements of a custom/practice (a recognised source of law). According to Van Breda v Jacobs 1921 AD 330 334, as reiterated by the Constitutional Court in Shilubana v Nwamitwa 2008 9 BCLR 914 (CC) para 52, a custom is recognised if it is "certain, uniformly observed for a long period of time and reasonable".
9 This explains the voluntarist nature of the process of collective bargaining in South Africa. See Molusi 2010 Obiter 165-166.
10 This term is commonly understood to refer to a situation of avoiding labour unrest and/or labour disputes, such as strikes. See para 6.3, which shows that in the absence of collective bargaining, matters can get out of hand.
11 Finnemore, Koekemoer and Joubert Labour Relations 233-234. Also see Leppan, Govindjee and Cripps 2016 Obiter 475; Adams 2011 Economic and Labour Relations Review 153-164; Derber 1980 Relations Industrielles/Industrial Relations 187-192.
12 Finnemore, Koekemoer and Joubert Labour Relations 233; Garbers, Le Roux and Strydom Labour Law 426; Van Niekerk et al Law@Work 432. Also see PSCBC 2017 https://pscbc.org.za/index.php/sample-page/pscbc-information-brochure. Section 213 of the LRA defines a collective agreement as "a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-(a) one or more employers; (b) one or more registered employers' organisations; or (c) one or more employers and one or more registered employers' organisations; 'council' includes a bargaining council and a statutory council".
13 Note that the term is loosely used. It should not be assigned its ordinary meaning.
14 Note that this resolution was applicable only to employees on salary level 1 to 12. It did not include members of the Senior Management Service who are on salary level 13 to 16.
15 Finnemore, Koekemoer and Joubert Labour Relations 233-234; Van Niekerk et al Law@Work 432-435. This can be understood as one of the "[c]ornerstone[s] of contract", expressed as pacta sun servanda (the sanctity of a contract). In explaining this term, Hutchison and Pretorius Law of Contract 21 describe the term as "an idea that contracts freely and seriously entered into must be honoured and, if necessary, enforced by the courts".
16 Public Servants Association v Minister of Public Service and Administration [2021] 3 BLLR 255 (LAC) (hereafter PSA v DPSA). Note that the matter ended up in the Constitutional Court; see National Education Health and Allied Workers Union v Minister of Public Service and Administration 2022 6 BCLR 673 (CC) (hereafter NEHAWU v DPSA).
17 This is in part motivated by the acknowledgement by the Labour Appeal Court (LAC) that if a decision (its decision) is made and it affects a multitude (all public servants), the adjudicator (LAC) is not well suited to predict the "repercussions" of his or her "interventions". See PSA v DPSA para 1.
18 See ss 35-37 of the LRA. Also see Finnemore, Koekemoer and Joubert Labour Relations 233 and Van Niekerk et al Law@Work 430-431; these authors contend that an institution such as the PSCBC can be formed by agreement or by legislation. They further note that such institutions can be permanent or interim (ad hoc).
19 Finnemore, Koekemoer and Joubert Labour Relations 198. Also see PSCBC 2017 https://pscbc.org.za/index.php/sample-page/pscbc-information-brochure.
20 See PSCBC 2017 https://pscbc.org.za/index.php/sample-page/pscbc-information-brochure.
21 The term "employers" is preferred in this submission. Other equivalent terms include government and/or the state. For an explanation of these two distinct terms, see Heywood Politics 55 and 110. These other two terms are not preferred since in study fields such as Politics and International Law they have a different and far bigger meaning than being the employer. The preferred word is also based on the fact that each government department (organ of state) is viewed as an independent entity, with its own accounting officer. As such it is an independent bearer of rights and obligations. As such in its own rights it is an employer.
22 Congress of South African Trade Unions date unknown http://mediadon.co.za/unions-contact/.
23 Federation of Unions of South Africa 2021 http://www.fedusa.org.za/unions-2/.
24 This is in line with Art 3 of Convention 154.
25 This is based on the PSCBC's "National Vote Weight as at 31 December 2021"; see PSCBC 2021b https://pscbc.co.za/index.php/collective-bargaining/vote-weights.
26 The indication prior to SAPU's conference in December 2022 was that it was affiliated with the South African Federation of Trade Unions (hereafter SAFTU). Its congress decided to withdraw from SAFTU. As to whether this has been actioned or not remains to be announced to the general public. Note that SAFTU still lists SAPU as one of its affiliates; see SAFTU 2023 https://saftu.org.za/affiliates/. See Sithole 2022 https://www.iol.co.za/the-star/news/police-union-withdraws-its-saftu-affiliation-24705195-4afd-4615-9930-7ffc9def82e4.
27 It can be assumed that all trade unions that signed the agreement did so in good faith, with the understanding that once it reached the required majority, it would be honoured by all parties concerned (including unions that did not ratify it). Note that the Constitutional Court found that the employer also acted in good faith when she requested that the negotiation for the last leg of the 2018 agreement be reopened; see NEHAWU v DPSA para 106. When one considers that in 2022 the employer unilaterally increased the salaries of public sector employees and that had it wanted to (unilaterally) increase public servants' salaries in 2020 it would have done so, one wonders if indeed the employer acted in good faith as stated by the court.
28 PSA v DPSA paras 2-3; PSCBC 2018 https://pscbc.co.za/index.php/collective-bargaining/psbc-resolutions-docman/2018-1.
29 PSA v DPSA para 9.
30 See NEHAWU v DPSA paras 22-23.
31 The Consumer Price Index (hereafter CPI) is an index of average consumer prices. It indicates the average increase in price of certain items (generally consumed by a household) over a period of time. The duration that was used was 1 April 2018 to 31 March 2019 (one financial year). According to the DPSA 2019b https://www.dpsa.gov.za/dpsa2g/documents/cos/2019/17_3_p_05_08_2019.pdf, the CPI for the duration stood at 4.65%.
32 According to the DPSA 2020 https://www.dpsa.gov.za/dpsa2g/documents/cos/2020/17_3_p_24_7_2020.pdf, the CPI for the duration stood at 4.19%.
33 See PSA v DPSA para 10.
34 See PSA v DPSA para 11.
35 See PSA v DPSA para 11 . This was because an application was brought by the parties in terms of s 175 of the LRA. Also see NEHAWU v DPSA para 24.
36 See PSA v DPSA paras 49-51 .
37 PSA v DPSA para 51. Essentially, all of the provisions mentioned required the DPSA to obtain a mandate from National Treasury. The DPSA did not have the express consent to bind the employer to the last year of the resolution. Note that this conclusion was subsequently confirmed by the Constitutional Court in NEHAWU v DPSA. This conclusion can also be understood using one of the "[c]ornerstone[s] of contract", which is expressed as privity of contract. In explaining this term, Hutchison and Pretorius Law of Contract 22 describe the term as "the idea that a contract creates rights and duties only for the parties to the agreement, and not for third persons". The 2018 resolution sought to bind National Treasury (a third party) without its express consent.
38 See PSA v DPSA para 1 .
39 The agreement had reached resolution status by 26 July 2022. The Constitutional Court heard an appeal from the LAC judgment on 24 August 2021 and delivered its unanimous judgement on 28 February 2022.
40 Note that the allowance from a benefit perspective of the employees was not in their best interest. It increased their tax liability, as it was taxed a lot higher than a standard salary. Furthermore, the employees' pension benefits remained stagnant for the duration till a new agreement was reached, as both the employer and employees were not contributing any further money outside the salary notches of the employees to the Government Employees Pension Fund (hereafter GEPF).
41 This satisfied what was lacking in the 2018 wage agreement, namely privity of contract.
42 PSCBC 2021a https://pscbc.co.za/index.php/collective-bargaining/psbc-resolutions-docman/2021.
43 NEHAWU v DPSA para 78.
44 NEHAWU v DPSA para 77.
45 NEHAWU v DPSA para 92.
46 NEHAWU v DPSA para 114.
47 South African Government 2022 https://www.gov.za/speeches/update-202223-public-service-wage-negotiations-9-nov-2022-0000.
48 There are two dominant "labour relations perspectives": unitarist employers and the promotion of pluralism. In terms of the former, the state and labour have a limited role in what happens in the world of work. The latter acknowledges that trade unions and labour have a role to play. The South African public sector has been largely characterised as pluralistic. The action of the employer went against this view. See further Finnemore, Koekemoer and Joubert Labour Relations 7-8 and 185-186.
49 According to the DPSA 2022a https://www.dpsa.gov.za/dpsa2g/documents/cos/2022/17_3_p_4_10_2022.pdf, the CPI for the previous financial year was 5.22%. As a result, the offer was less than half of what the CPI was.
50 Note that since the birth of the democratic South Africa (27 April 1994), this is the second time the employer has taken such a route. This occurred in 1999 and led to the biggest public sector industrial action (strike) to date. The employer also has a remedy of a lockout. This is unlikely to happen in the public sector as this would inconvenience the many who are in dire need of public services and goods. See Finnemore, Koekemoer and Joubert Labour Relations 141; Garbers, Le Roux and Strydom Labour Law 426; Staff Reporter 1999 https://mg.co.za/article/1999-08-17-nehawu-rejects-implementation/.
51 PSA 2022 https://www.psa.co.za/docs/default-source/psa-documents/media-statements/psa-fedusa-public-service-strike-to-continue-on-10-november-2022.pdf?sfvrsn=59996bfc_4.
52 Minister for the Public Service and Administration v National Education, Health and Allied Workers Union [2023] JOL 58172 (LC) (hereafter DPSA v NEHAWU) para 3.
53 South African Government 2022 https://www.gov.za/speeches/update-202223-public-service-wage-negotiations-9-nov-2022-0000; PSCBC 2022 https://pscbc.co.za/index.php/docman/media-statements/2231-pscbc-media-release-update-on-wage-negotiations-081122/file; DPSA 2022b https://www.dpsa.gov.za/dpsa2g/documents/rp/2022/18_1_p_26_10_2022A.pdf.
54 An explanation given by the employer is that the current cash gratuity on average amounts to 4.2%, and, as such, the employer was merely adding an increase of 0.5%. This increase was supposed to be pensionable. As a result, this was not going to translate into more money in the pockets of employees. It was only going to benefit them upon retirement, as both the employer and employee were going to be forced to contribute to the GEPF.
55 PSA 2023 https://www.psa.co.za/docs/default-source/psa-documents/newsletters/2023-to-be-used-from-3-january-2023/pscbc-17022023.pdf?sfvrsn=5dab0434_4.
56 At the heart of the of the bone of contention by NEHAWU were the following three issues: the employer's refusal to agree to a 10% salary increase; the demand of a housing allowance of R2 500 (per month) and for dismissed employees to be paid out their contribution to the Government Employees Housing Scheme; and for pay progression (1.5% salary increase linked to performance assessment) to be payable to people on the top notch of each salary level. Note that the 2021 wage agreement made provision for such an increase. Further note that the current housing allowance is R1 500.07 and it is increased annually on the basis of the average CPI announced by Statistics South Africa for a financial year; see DPSA 2022a https://www.dpsa.gov.za/dpsa2g/documents/cos/2022/17_3_p_4_10_2022.pdf.
57 DPSA v NEHAWU para 5.
58 Section 213 of the LRA defines essential service as: "(a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population; (b) the Parliamentary service; (c) the South African Police Service". Also see Pillay 2001 Southern African Business Review 57.
59 DPSA v NEHAWU paras 18-19.
60 Section 68(2) of the LRA provides: "The Labour Court may not grant any order in terms of subsection (1)(a) unless 48 hours' notice of the application has been given on the respondent: However, the Court may permit a shorter period of notice if- (a) the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order; (b) the respondent has been given a reasonable opportunity to be heard before a decision concerning the application is taken; and (c) the applicant has shown good cause why a period shorter than 48 hours should be permitted".
61 DPSA v NEHAWU paras 5-25.
62 This was with reference to the parties who applied for the non-resolution certificate from NEHAWU. As such, POPCRU, HOSPERSA, and DENOSA should have joined in the application; see DPSA v NEHAWU para 5.
63 DPSA v NEHAWU para 6. Note that this issue was disposed of in para 10 of the judgment. It was noted that the PSCBC was joined in the matter in analogy by the Commissioner, who issued the non-resolution certificate. Despite this, the PSCBC no longer had any interests as it has discharged its obligations as contemplated in s 135(1) of the LRA.
64 DPSA v NEHAWU paras 5-8. The court relied on Absa Bank Ltd v Naude 2016 6 SA 540 (SCA) para 10 and Judicial Service Commission v Cape Bar Council 2013 1 SA 170 (SCA) para 12.
65 DPSA v NEHAWU paras 5-25.
66 DPSA v NEHAWU paras 12-17.
67 DPSA v NEHAWU paras 18-23.
68 DPSA v NEHA WU para 1.
69 NEHAWU v Minister for the Public Service and Administration 2023 6 BLLR 487 (LAC) (hereafter NEHAWU v DPSA 2023) para 1. This order was sought and made in terms of s 18 of the Superior Courts Act 10 of 2013.
70 NEHAWU v DPSA 2023 para 57. What the court did in this regard is similar to corrective interpretation as outlined in Botha Statutory Interpretation 212-214. In particular, they used reading down, severance and reading in to keep the NEHAWU notice strike constitutional. Note that reading down is a method of statutory or constitutional interpretation used by the courts to make legislation (action) that seems unconstitutional to be in line with the Constitution. Reading in means that a court reads in words and severance means a court cuts out words, with the same intention of keeping a provision/act within constitutional parameters. In a way one can argue that this is what the court a quo should have done. This balances the employees' right to strike (as a means to compel the employer to bargain) and the employers' rights to have certain services uninterrupted by employee actions.
71 One can argue that the strike did serve its purpose, compelling the employer to bargain and move from its original position.
72 NEHAWU 2023 https://www.nehawu.org.za/NEHAWU%20Statement%20On%20The%20Public%20Service%20Strike%2015%20March%202023.html. See also PSCBC 2023a https://pscbc.co.za/index.php/docman/media-statements/2250-pscbc-media-release-140323-oo-bn-002/file. This can be stated to make the appeal of the DPSA v NEHAWU moot, and, as such, no longer worth the time of the court. See DPSA 2023 https://www.dpsa.gov.za/dpsa2g/documents/rp/2023/18_1_p_06_04_2023.pdf.
73 PSCBC 2023b https://pscbc.co.za/index.php/collective-bargaining/psbc-resolutions-docman/2023.
74 Note that the DPSA has provided guidelines as to how this agreement will be operationalised. Employees will be granted a 3.3% salary increase on their salary notches (as they were on 31 March 2023). After this calculation, the value of the non-pensionable allowance (the cash gratuity) that an employee was receiving will be multiplied by 12 and added to the notch after the salary increase.
75 Grawitzky 2011 https://www.ilo.org/wcmsp5/groups/public/-ed_dialogue/-dialogue/documents/publication/wcms_175009.pdf.
76 Note that both agreements were ratified by the same parties (see Table 2). They enjoy a 53.9% majority. The glue in the agreement is the ratification between SADTU and the PSA; or, put differently, the relationship between SADTU- and FEDUSA-affiliated unions (see Table 1 for a distribution of their power). Should either party not sign in the near future and most COSATU affiliates continue not being interested in agreements that are perceived as anti-labour, there will be no agreement and the prospects of a strike will increase.
77 See Finnemore, Koekemoer and Joubert Labour Relations 233, who contend that the success of any bargaining institution depends on its acceptability by the clients. After the breakdown of the 2018 resolution, the usage of the courts to settle the enforceability of the resolution, and the absence of a long-term agreement, one can infer that the acceptability of the PSCBC as an entity to resolve bargaining issues has degraded.
78 Gyesie Exploring the Impact of Collective Bargaining 44.
79 As a collective (COSATU affiliates), this statement can be said to be cast in stone. However, if SADTU continues ratifying all proposed wage increases, it leaves other affiliates in the shadows. It was the reason why the 2018 agreement came to life. See Duma 2022 https://ewn.co.za/2022/10/06/sadtu-takes-govt-s-3-salary-hike-offer-says-wage-strike-won-t-benefit-members. It should be noted that despite SADTU's participation in the negotiation process, the DPSA had no mandate to alter the conditions of service (employment) of educators. This will be operationalised by the Minister of Education. This is similar for the police and members of the correctional services (appointed in terms of the relevant statutes).
80 This denotes a relationship between the ruling party (ANC), the SACP and COSATU.
81 Amoako 2012 Labour, Capital and Society 85-86.
82 There are others who are of the view that when such people occupy such positions it is labour that suffers the most, since office bearers' loyalty will shift from those they represent to either the self or the ruling party (or sometimes both).
83 Amoako 2012 Labour, Capital and Society 86.
84 See Amoako 2012 Labour, Capital and Society 86, who argues that the inability of the government to accede to worker demands and implement neoliberal policies such as the Redistribution and Development Programme and the Growth, Employment and Redistribution Strategy has a strong potential to ignite strikes in the public sector.
85 In line with the recent wage agreement this is already a possibility. See Table 3.
86 This view of members or affiliates acting as one is referred to as "rank and file" by Amoako 2012 Labour, Capital and Society 86.
87 In the financial year 2018/2019, state departments were told to budget only 1.5% for the COE budget; in the financial year 2019/2020, this was reduced to 0.75%; in the financial year 2020/2021, it was reduced to 0.5%; in the financial year 2021/2022, it was reduced to 0%; and in the financial year 2022/2023 and beyond, it was stated that it will be "determined based on the Comprehensive Review of ALL PMDSs [Performance Management and Development Systems] for ALL categories of Employees". See DPSA 2019a https://www.dpsa.gov.za/dpsa2g/documents/rp/2019/18_1_p_30_01_2019.pdf.
88 This may be as a result of employees having found alternative employment, death, ill-health, or voluntary exit mechanisms/programmes. This is also evident from the statement issued by National Treasury 2023 https://www.treasury.gov.za/comm_media/press/2023/2023033101%20Media%20statement%20-%202023%20Public%20sector%20coordinated%20bargaining%20council%20outcome.pdf.
89 Mahmood and Banerjee 2023 Economic and Industrial Democracy 965-966.
90 Botha 2015 De Jure 331.
91 Collective Bargaining Recommendation No. 163 of 1981.
92 See Amoako 2012 Labour, Capital and Society 85-86. Note that the strike was associated with the unilateral salary increase by the DPSA in 1999; see Staff Reporter 1999 https://mg.co.za/article/1999-08-17-nehawu-rejects-implementation/.