NEHAWU and Others v MEC: Department of Health, Eastern Cape and Others (P118/11; P125/11; P127/11) [2013] ZALCPE 3; (2013) 34 ILJ 2626 (LC) (11 February 2013)

NEHAWU and Others v MEC: Department of Health, Eastern Cape and Others (P118/11; P125/11; P127/11) [2013] ZALCPE 3; (2013) 34 ILJ 2626 (LC) (11 February 2013)

The court held that collective agreements, resolutions, directives, and other instruments listed in clause 4.3 of the settlement agreement remain valid and applicable for the periods during which they were in force, even if inconsistent with the 2001 Regulations. The 2001 Regulations do not operate retrospectively to invalidate instruments created before their promulgation. The arbitrator is entitled to consider and apply such instruments for the relevant periods. However, collective agreements do not automatically override statutory instruments; they must be read and applied subject to the principle of legality. Where a statutory instrument is expressly made subject to a collective...

Citation
[2013] ZALCPE 3
Parties
Applicant: NEHAWU; Applicant: PSA; Applicant: HOSPERSA; Applicant: PAWUSA; Respondent: MEC: Department of Health, Eastern Cape; Respondent: Superintendent General: Department of Health, Eastern Cape; Respondent: The Premier of the Eastern Cape; Respondent: Minister: Public Service and Administration
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
11 February 2013
Case Number
P118/11; P125/11; P127/11
Procedural Posture
Special Case Stated / Opinion on Question of Law Referred Under Section 20 of the Arbitration Act
Outcome
The court provided its opinion on the question of law referred, confirming that the union parties may rely on all collective agreements, resolutions, and directives for periods during which they were applicable, notwithstanding inconsistency with the 2001 Regulations.
Judges
Van Niekerk
Legal Topics
Collective Agreements, Public Service Regulations, Arbitration Act Section 20, Principle of Legality
Labour Law Civil Procedure Collective Agreements Public Service Regulations Arbitration Act Section 20 Principle of Legality

Case Brief

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Parties

NEHAWU

Applicant

PSA

Applicant

HOSPERSA

Applicant

PAWUSA

Applicant

MEC: Department of Health, Eastern Cape

Respondent

Superintendent General: Department of Health, Eastern Cape

Respondent

The Premier of the Eastern Cape

Respondent

Minister: Public Service and Administration

Respondent

Procedural Posture

Special Case Stated / Opinion on Question of Law Referred Under Section 20 of the Arbitration Act

Legal Issues

  1. 1 Whether the applicants may rely on legal instruments stipulated in clause 4.3 of the arbitration agreement, even if inconsistent with the Public Service Act or the 2001 Regulations.
  2. 2 Whether collective agreements and other instruments predating the 2001 Regulations remain valid and applicable for periods before the Regulations came into force.
  3. 3 Whether statutory measures retrospectively invalidate previously applicable instruments due to inconsistency.

Ratio Decidendi

The court held that collective agreements, resolutions, directives, and other instruments listed in clause 4.3 of the settlement agreement remain valid and applicable for the periods during which they were in force, even if inconsistent with the 2001 Regulations. The 2001 Regulations do not operate retrospectively to invalidate instruments created before their promulgation. The arbitrator is entitled to consider and apply such instruments for the relevant periods. However, collective agreements do not automatically override statutory instruments; they must be read and applied subject to the principle of legality. Where a statutory instrument is expressly made subject to a collective...

Court Disposition

The court provided its opinion on the question of law referred, confirming that the union parties may rely on all collective agreements, resolutions, and directives for periods during which they were applicable, notwithstanding inconsistency with the 2001 Regulations.

Orders

  • The union parties are entitled to rely on all collective agreements, resolutions, and directives in respect of periods during which they were applicable, even if inconsistent with the 2001 Regulations.
  • The arbitrator is entitled to have regard to such instruments in determining eligibility for promotion.