When it comes to applications to review an arbitration award issued by a CCMA commissioner, common law principles state that the operation of the award is suspended and cannot be enforced until the review is complete. However, to avoid prejudice to employees who have been successful in unfair dismissal arbitrations, section 145(7) of the Labour Relations Act, 1995 ("LRA") provides that an application to review an arbitration award does not suspend the operation of the award unless the applicant provides security "to the satisfaction of the Court" in accordance with the provisions of section 145(8) of the LRA.

But what happens if there is an application for leave to appeal against a decision of the Labour Court to the Labour Appeal Court ("LAC")? The LRA does not address this issue and so we must look to section 18 of the Superior Courts Act, 2013 for guidance. Section 18(1) states that, unless the court orders otherwise under exceptional circumstances, the operation and execution of a decision which is the subject of an application for leave to appeal, or of an appeal, is suspended pending the decision of the application for leave to appeal or pending the outcome of the appeal. In addition, in terms of section 18(3), such an order can only be granted if the party that has applied for the order can show, on a balance of probabilities, that they will suffer irreparable harm if the court does not make such an order and that the other party will not suffer irreparable harm if such an order is made.

This section was interpreted and applied in the LAC decision in NEHAWU v Minister For The Public Service And Administration and Others in the context of a constitutional right to strike.

On 23 February 2023, the National Education, Health and Allied Workers Union ("NEHAWU") issued a strike notice to "all Director Generals and Heads of Departments across all departments and provinces (including SASSA, SIU and SANBI)" stating that a strike would commence in seven days "in all workplaces in the public service, including those of SASSA, SIU and SANBI".

The minister and the Department for the Public Service and Administration ("DPSA") launched an urgent application in the Labour Court for an order: that:

  • the strike notice be set aside;
  • NEHAWU and its members and officials be interdicted and restrained from embarking on the strike, picketing or other industrial action; and,
  • NEHAWU be ordered to inform its members accordingly.

The Labour Court granted this order and NEHAWU immediately applied for leave to appeal that judgment.

This had the effect that the interdict prohibiting the strike was suspended and that the strike could proceed. The minister and the DPSA accordingly brought an application in terms of section 18 of the Superior Courts Act for leave to execute the order of the Labour Court, notwithstanding NEHAWU's application for leave to appeal the order. The section 18 application was made on the basis that exceptional circumstances existed and that the state was likely to suffer irreparable harm if the strike took place. It would potentially involve 1 224 653 public servants in the bargaining unit, of which 582 000 were essential services employees and 642 653 were non-essential service employees. It was contended that a strike would impact on all national and provincial departments and all public services with a consequent impact on service delivery. This was in circumstances where the appeal had no prospects of success. In contrast, NEHAWU and its members were unlikely to suffer such harm if the Labour Court's order were not to be brought into effect pending the appeal.

NEHAWU opposed the section 18 application on the basis, amongst others, that the harm alleged was of a general nature and not beyond what generally occurs during the course of industrial action. NEHAWU claimed its members would suffer irreparable harm if the section 18 application was granted because substantial expenditure had been incurred in relation to "a national strike of this magnitude", which expenditure could not be recovered.

The Labour Court granted an order in terms of section 18. Section 18(4) states that a party aggrieved by this order has an automatic right to appeal to the next higher court, and NEHAWU exercised this right to appeal. The LAC confirmed the three requirements that must be met to obtain relief under section 18 of the Superior Courts Act:

  • exceptional circumstances, in terms of section 18(2), to justify reversing the ordinary rule of the suspension of the order pending an appeal;
  • proof on a balance of probabilities, in terms of section 18(3), that the Minister and the DPSA would suffer irreparable harm if the operation and execution of the order was not given interim effect; and
  • in terms of section 18(3), that NEHAWU and its members would not suffer irreparable harm if the order was immediately put into operation.

The LAC referred to the Supreme Court of Appeal's remark in University of the Free State v Afriforum and another that section 18(3) "has introduced a higher threshold, namely proof on a balance of probabilities that the applicant will suffer irreparable harm if the order is not granted and conversely that the respondent will not, if the order is granted".

The LAC then applied these principles to the facts at hand. It found that the demand made by NEHAWU was intentionally and recklessly broad. The notice envisaged that those of its members who were involved in the provision of essential services, as well as members who worked for entities not covered by the collective bargaining process, would go on strike. NEHAWU's approach to a potential strike by essential service employees was deplorable. A strike by essential services would be in a flagrant breach of the law. The only conclusion that could be drawn from NEHAWU's conduct was that it was aware that the strike covered essential service workers and that a strike by employees involved in the provision of these services would be unlawful. Yet it made limited, if any at all, efforts to prevent this from occurring.

The LAC upheld the Labour Court's order to execute the interdict, insofar as essential service employees, and employees employed by other entities not covered by the collective bargaining process, were concerned. There could be little doubt that (i) the union's breach of the law constituted exceptional circumstances and irreparable harm to the employer (and none to the union) as contemplated in section 18.

However, it was not prepared to extend this in respect of all NEHAWU members, this on the basis that the constitutional right to strike should not be unduly limited.

Two noteworthy comments that arise from this judgment are as follows:

The LAC rejected the contention advanced by the minister and the DPSA that the demands contained in the strike notice were unlawful and in breach of the Public Service Regulations, because the National Treasury had budgetary constraints and any collective agreement concluded in breach of the Regulations resulted in the strike being unlawful. The LAC confirmed that a strike uses collective action and the withdrawal of labour as an exercise of power in an attempt to press an employer to meet certain employee demands. An employer's claim that it cannot accede to such demands, or that it has not budgeted for or obtained the required approvals to accede to such demands, does not necessarily make either the demands or the strike in and of themselves unlawful.

The LAC also found it appropriate to note that the inaction of the SAPS in the face of criminal behaviour was extraordinary. It noted that it has become commonplace for the SAPS to walk away from scenes of criminal behaviour in a strike context, calling it a private or civil matter. The LAC remarked that criminal conduct is neither private nor a civil matter. The SAPS are obliged to maintain law and order. It is their duty to act to enforce the law and not to await a court to order for them to do so.

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