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 a ruling of the Essential Services Committee (ESC) dated 7 May 2020 under reference ES51. The dispute arose from negotiations between NEHAWU and the Electoral Commission over a minimum services agreement (MSA). While most terms were agreed, the parties disagreed on clause 3.6, which prohibited strike action or withholding of labour from the beginning of the first month of an official registration event until the end of the month in which elections are conducted. NEHAWU contended this exceeded the limits imposed by the Municipal Electoral Act. The Electoral Commission initially argued the ESC lacked jurisdiction, claiming the service did not endanger life, personal safety, or health, and therefore was not an essential service under the LRA. The ESC ruled it had jurisdiction and found clause 3.6 to be fair, reasonable, and part of the MSA. NEHAWU filed a review application on 10 September 2020, outside the prescribed period, seeking condonation for late filing due to COVID-19 restrictions.

• Whether condonation should be granted for the late filing of the review application
• Whether the ESC had jurisdiction to determine the dispute regarding the minimum services agreement
• Whether there is a conflict between the LRA and the Electoral Act that would trigger section 210 of the LRA
• Whether the ESC's ruling that clause 3.6 forms part of the minimum service agreement was correct
• The proper interpretation of 'essential service' and 'minimum service' under the LRA
• The scope of the ESC's powers under sections 72 and 73 of the LRA

Condonation for the late filing of the review application was granted. The application to review and set aside the ruling of the third respondent (ESC Commissioner) dated 7 May 2020 under reference ES51 was dismissed. There was no order as to costs.

The binding legal principles established by this judgment are: (1) The ESC has jurisdiction under section 73 of the LRA to determine disputes relating to all essential services, including those designated as essential services by legislation (such as the Electoral Commission under section 112(1) of the Electoral Act), not only services designated by the ESC under section 71. (2) The definition of 'minimum service' in section 72(9) of the LRA applies only to section 72 and does not limit the broader scope of section 73. (3) There is no conflict between the LRA and the Electoral Act that would trigger section 210 of the LRA, because section 65(1)(d)(i) of the LRA prohibits employees in essential services from striking regardless of whether the service is designated by the ESC or by other legislation. (4) The prohibition on strikes in section 65(1)(d)(i) applies to services designated as essential by the ESC, services deemed essential under section 71(10), and services determined to be essential by other legislation. (5) On jurisdictional reviews, the appropriate test is correctness, not reasonableness. (6) Statutes dealing with the same subject matter should be construed harmoniously, and apparent conflicts should be reconciled where possible by giving effect to the legislative intent as discerned from language, context, and purpose.

The court made several non-binding observations: (1) The right to strike is a fundamental constitutional right that should not be lightly curtailed, and interpretations least restrictive of the right should be adopted where the text reasonably permits. (2) Free and fair elections are an essential pillar of democracy, and the Electoral Commission serves a critical service in that respect. (3) While the Electoral Act defines the Electoral Commission's service broadly as an essential service at all times, and the Municipal Electoral Act defines it more narrowly (from notice of election to declaration of results), these provisions can be harmoniously interpreted by giving effect to the broader scope of the Electoral Act. (4) The Electoral Commission's submission that NEHAWU strikes are invariably violent was not a proper consideration and did not form a basis for the ESC's ruling. (5) The court noted that the Electoral Commission's initial stance that the ESC lacked jurisdiction indicated the applicant's contentions were not completely without merit, supporting the granting of condonation. (6) In the absence of a constitutional challenge, the court must accept that any limitation on the right to strike countenanced by the Electoral Act passes constitutional muster.

This case clarifies the jurisdiction of the Essential Services Committee under the LRA, specifically establishing that the ESC has jurisdiction over essential services designated by legislation (such as the Electoral Commission under section 112(1) of the Electoral Act), not only those services designated by the ESC itself under section 71. The judgment provides important guidance on the interpretation of 'essential service' and 'minimum service' under the LRA, holding that the definition in section 72(9) is confined to that section and does not limit the broader scope of section 73. The case also demonstrates the application of statutory interpretation principles, particularly the harmonious construction of statutes dealing with the same subject matter, and the principle that interpretations should be adopted that are least restrictive of fundamental rights (here, the right to strike). The judgment balances the constitutional right to strike with the constitutional imperative of free and fair elections, recognizing that certain limitations on strike action in essential services are permissible under the LRA framework. It reinforces that where legislation designates a service as essential for purposes of the LRA, the prohibition on strikes in section 65(1)(d)(i) applies without the need for ESC designation.