POPCRU secures Constitutional Court Judgement on Essential and Non-Essential Workers Question

The matter was tabled at the Constitutional Court with the South African Police Services as the Applicant and Police and Prisons Civil Rights Union as the Respondent.

The Applicant sought leave to apply against the Judgement of the Labour Appeal Court dated 03rd September 2010 ["The Labour Court Judgement"].

The centrality of the arguments relates to the distinction of workers performing Essential and Non-Essential work within the employ of SAPS. And Essential Services as contemplated by the Labour Relations Act in relation to SAPS [SAPS ACT 68/1995].

Essential services apply to SAPS Members, who are empowered to perform the policing functions in terms of the SAPS Act.

Employees under Public Service Act Proclamation No.103/1994 [PSA Employees], provides important support and complementary functions to SAPS but do not form part of SAPS that is designated as essential services by Labour Relations Act. Since they do not perform essential functions in terms of Labour Relations Act, they are not prohibited from striking in terms of Section 65[1[[d] of the Labour Relations Act.

POPCRU argued that the judgement will have important implications both for SAPS members and for Public Services Act Employees.

We also argued that the Applicant prospects of success based on the merits are so weak and leave to appeal ought to be refused.

The Applicant argued that the service is not designated essential services but the entirety as a whole. We argued that the applicant's construction is without foundation and both a textual and a principled level.

We therefore submitted that;

• Applicant construction finds no support in the provision of the SAPS Act and the Labour Relations Act,
•  If, the Appeal of Leave is granted the judgement would have impacting effect on applicable International Labour Organizations Principles and in particular the requirement that Essential Services must be restrictively interpreted to, include only those Essential Services, the interpretation of which would endanger the life, personal safety or health of the whole or part of the population.
• International Labour Organization  Principles also draw a distinction between Members of the Police and Civilians working in those institution,
• The application would violate Section 23[2] [c] of the Constitution and also will violate the Constitutional Equality Clause.

Before the Constitutional Court, a judgement was delivered that;

• All Judges agreed on the Judgement,
• Public Service Act Employees, who are deemed not performing essential services are not prohibited from striking,
• The Non-Essential Services Workers right to strike may not be denied,
• The interpretation must not be done restrictively in isolation of the provisions of the SAPS Act and the Labour Relations Act, and
• Other considerations must be located within the provisions of SAPS Act, Section 38[1] [a].

The Applicant views therefore cannot be upheld. And the Leave of Appeal was dismissed.

The Judgement delivered today, 09th June 2011 must be written in the hearts and minds of all workers in particular and the working class in general, to cement the Right of Workers to go on a strike action, as the last weapon to regulate power relations between Employers and Employees.

And a POPCRU Member is our priority.

Justice for All!

Statement issued by POPCRU General Secretary-Cde Nkosinathi Theledi, June 9 2011

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