National Education Health and Allied Workers Union obo Members v Essential Services Committee and Others

NEHAWU, on behalf of its members employed by the Electoral Commission, sought to review and set aside a ruling of the Essential Services Committee (ESC) issued on 7 May 2020. The dispute arose during negotiations for a minimum services agreement (MSA) after the Electoral Act 73 of 1998 designated the Electoral Commission as an essential service for purposes of the Labour Relations Act (LRA). While most terms of the MSA were agreed, the parties deadlocked over clause 3.6, which prohibited strike action from the beginning of the first month of an official voter registration event until the end of the month in which elections were conducted. NEHAWU contended that this clause excessively limited the constitutional right to strike and conflicted with the LRA. The ESC ruled that it had jurisdiction, that the Electoral Commission is an essential service under legislation, and that clause 3.6 was fair, reasonable, and formed part of the MSA. NEHAWU launched a late review application in the Labour Court and sought condonation, citing COVID‑19 related disruptions.

Condonation for the late filing of the review application was granted, but the application to review and set aside the ruling of the Essential Services Committee was dismissed.

This judgment clarifies the interaction between the Labour Relations Act and election-related legislation in the context of essential services. It confirms that services designated as essential by statute fall within the ambit of the LRA’s essential services regime and the jurisdiction of the ESC. The case is significant for delineating the limits of the right to strike where that right intersects with the constitutional imperative of free and fair elections, and for reaffirming principles of harmonious statutory interpretation in labour law.