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Thursday January 23, 2025
The National Education, Health and Allied Workers’ Union [NEHAWU] welcomes the Labour Court Judgement setting-aside the Arbitration Award in the case of Community Healthcare Workers [CHW].
The matter was heard in the Labour Court at Braamfontein, Johannesburg on 29 October 2024 reviewing the arbitration award that ruled against our application to force the employer to appoint CHWs permanently because they failed to demonstrate justifiable reasons why CHWs are kept in recurring fixed-term contracts.
The court had to consider whether there is a justifiable reason for the Community Healthcare Workers [CHWs] not to be made permanent as presumed by section 198B(5) of the Labour Relations Act [LRA].
The CHWs had been on a perennial contractual renewals without a clear explanation from the Department of Health (the state). The state was invited by the court to furnish justification for the continuous renewal of fixed term contracts. The purported justifications by the state that the court had to consider were one whether the CHWs were employed by through a collective agreement and as a consequence section 198B(2)(c) of the LRA would then prohibit the deeming presumption of these workers being permanent.
The further legal question was whether these workers were funded by an external source which would consequently engage section 198B(4)(h) of the LRA with the resultant effect that the said workers cannot be permanent. Lastly was the question around whether the type of work they execute on a daily basis is permanent and constantly required by the state and the public.
The court determined that it is common cause to all parties that there is a permanent need for the work tendered by CHWs as conceded by the counsel of the state, secondly the essence of the collective agreement was not to employ these workers but rather to regulate a framework for their conditions therefore that collective agreement in itself does not employ these workers. On the question of external funding the court reasoned that all monies utilised by the Department of Health comes from National Treasury therefore it cannot be acceptable that National Treasury is described as an external funder to a state department. In conclusion the court reject all the purported justifications by the state and ordered that the deeming provisions of section 198B(5) of the LRA applies and all the contracts of employment of the CHWs are deemed to be for an indefinite period.
We reiterate once more that the union shall continue fighting for the permanent absorption of all Community Health Workers with full employment benefits that are enjoyed by other public servants. This is a fight we shall not dare falter until the bitter end.
Lastly, we will be convening membership meetings from next week to explain and provide a correct interpretation of the judgement and annexure to the judgement and further advice members on the program of the union towards the implementation of the judgement.
END
Issued by NEHAWU Limpopo Secretariat Office
Zola Saphetha (General Secretary) at 082 558 5968;
December Mavuso (Deputy General Secretary) at 082 558 5969;
Lwazi Nkolonzi (NEHAWU National Spokesperson) at 081 558 2335 or email: lwazin@nehawu.org.za
Visit https://www.nehawu.org.za
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