NEHAWU v Minister of Public Service and Administration and Others

On 6 March 2023, NEHAWU and its members in the public sector embarked on a national strike. On 14 March 2023, NEHAWU, DENOSA, POPCRU, SAPO and DPSA representing the government entered into a settlement agreement under the auspices of the Public Service Coordinating Bargaining Council (PSCBC) in respect of a dispute that gave rise to the strike. On 16 March 2023, NEHAWU tabled residual demands including reopening 2022/23 wage negotiations, augmenting the 3% implemented in 2022 by 4% backdated to 1 April 2022, providing a R2,500 housing allowance, and other matters. The Respondents responded on 17 March 2023, supporting some demands but rejecting others as unaffordable. On 31 March 2023, the majority of unions in the PSCBC accepted the government's offer. On 21 November 2023, Tlhotlhalemaje J made the settlement agreement an order of court. On 25 July 2024, NEHAWU launched contempt proceedings alleging that the Respondents failed to comply with clause 1.3.3 of the settlement agreement which required that residual matters from 2022/23 wage disputes be "tabled, positively dealt with and concluded as part of 2023/2024 wage negotiations."

• Whether the Respondents were in contempt of court for failing to comply with the court order of 21 November 2023
• What constitutes 'positively dealt with' in the context of collective bargaining obligations
• The application of the principle of majoritarianism in collective bargaining
• The elements required to establish contempt of court

The application was dismissed with costs.

An obligation to "positively deal with" proposals in a collective bargaining settlement agreement means engaging in good faith and providing substantive responses to tabled proposals, but does not require acceptance of all demands, particularly where they are financially unfeasible. Where a respondent has engaged with proposals, provided reasons for rejecting certain demands, and reached agreement with the majority of unions in a bargaining unit, contempt of court is not established. The principle of majoritarianism applies such that an agreement accepted by the majority of unions in a bargaining council binds minority unions. For contempt to be established, the applicant must prove not only non-compliance with an order, but also that such non-compliance was wilful and mala fides; where the respondent has provided evidence of good faith engagement and substantive responses, the presumption of wilfulness and mala fides is rebutted.

The court observed that the application was "egregious and meritless" and that the Applicant's conduct was "irresponsible" causing unnecessary costs. The court noted with approval the principle of majoritarianism as not being defined in the LRA but explained by the Constitutional Court as meaning the will of the majority prevails over that of the minority. The court emphasized that majoritarianism resulted from a conscious policy choice by the Legislature when formulating the LRA, citing Kem-Lin Fashions and other authorities. The court observed that when a majority union enters into a collective agreement identifying and binding non-parties, such agreement binds minority unions, and noted scholarly commentary that "the LRA is profoundly majoritarian." The court also noted during the hearing it inquired whether the Applicant's understanding of clause 1.3.3 meant the Respondents were required to agree to all proposals, and counsel confirmed they were not expected to agree but to positively engage rather than flatly refuse all proposals.

This case clarifies the interpretation of obligations to "positively engage" in collective bargaining settlement agreements made orders of court. It reinforces that such obligations require good faith engagement and responses to proposals, but do not compel acceptance of all demands. The judgment affirms the principle of majoritarianism in collective bargaining within the South African labour law framework, holding that decisions by majority unions bind minority unions. It also reiterates the stringent requirements for establishing contempt of court, particularly the need for wilfulness and mala fides beyond mere disagreement about compliance. The case provides guidance on distinguishing between non-compliance with court orders and legitimate differences in interpretation of collective bargaining obligations.