HOSPERSA and Others v MEC For Health Western Cape and Others (C37/2011) [2011] ZALCCT 72 (9 February 2011)

HOSPERSA and Others v MEC For Health Western Cape and Others (C37/2011) [2011] ZALCCT 72 (9 February 2011)

The court found that the applicants had established a prima facie right to remain in their seconded positions as full-time shop stewards pending the resolution of the dispute before the bargaining council. The Department of Health failed to demonstrate that the posts occupied by Andrews and Hocher were critical within the meaning of the collective agreement, especially as the Department had managed without them for a significant period. The court held that the union would suffer irreparable harm if the applicants were forced to return to their workplaces, as this would deprive the union of experienced representation and disrupt ongoing disputes. The balance of convenience favoured the...

Citation
[2011] ZALCCT 72
Parties
Applicant: HOSPERSA; Applicant: Winston Andrews; Applicant: Anton Hocher; Respondent: MEC For Health: Western Cape; Respondent: Department of Health: Western Cape; Respondent: Public Health & Welfare Sectoral Bargaining Council
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
9 February 2011
Case Number
C37/2011
Procedural Posture
Urgent Application / Interim Interdict Pending Arbitration Before Bargaining Council
Outcome
Interim interdict granted pending arbitration of the dispute before the bargaining council.
Judges
Steenkamp
Legal Topics
Collective Agreements, Interim Interdict, Full Time Shop Steward, Secondment, Urgency, Interpretation of Agreement
Labour Law Civil Procedure Collective Agreements Interim Interdict Full Time Shop Steward Secondment Urgency Interpretation of Agreement

Case Brief

Summary, issues, holding and outcome

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Parties

HOSPERSA

Applicant

Winston Andrews

Applicant

Anton Hocher

Applicant

MEC For Health: Western Cape

Respondent

Department of Health: Western Cape

Respondent

Public Health & Welfare Sectoral Bargaining Council

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Arbitration Before Bargaining Council

Legal Issues

  1. 1 Whether the applicants are entitled to interim relief pending the resolution of a dispute regarding the interpretation and application of a collective agreement.
  2. 2 Whether the Department of Health has a discretion to refuse the secondment of nominated full-time shop stewards under Resolution 1 of 2003.
  3. 3 Whether the posts occupied by the applicants are 'critical' within the meaning of the collective agreement.

Ratio Decidendi

The court found that the applicants had established a prima facie right to remain in their seconded positions as full-time shop stewards pending the resolution of the dispute before the bargaining council. The Department of Health failed to demonstrate that the posts occupied by Andrews and Hocher were critical within the meaning of the collective agreement, especially as the Department had managed without them for a significant period. The court held that the union would suffer irreparable harm if the applicants were forced to return to their workplaces, as this would deprive the union of experienced representation and disrupt ongoing disputes. The balance of convenience favoured the...

Court Disposition

Interim interdict granted pending arbitration of the dispute before the bargaining council.

Orders

  • The first and second respondents are interdicted and restrained from giving effect to the demand that the second and third applicants return to their workplace forthwith.
  • The first and second respondents are interdicted and restrained from treating the second and third applicants' absence from their workplace as unauthorised absence.