The Future of Collective Bargaining between Labour and the Employer after the Case of Public Servants Association v Minister of Public Service [2021] 3 BLLR 255 (LAC)

This case note seeks to determine the future of collective bargaining after the Labour Appeal Court (LAC) judgment in Public Servants Association v Minister of Public Service [2021] 3 BLLR 255 (LAC). In arriving at a conclusion, context is provided. As part of the context it is shown that the right to engage in collective bargaining is not synonymous with the legal right to collective bargaining. This is based on the Constitution of the Republic of South Africa, 1996, case law and international law. Despite this, it is demonstrated that it can be argued that collective bargaining can be accepted as a recognised practice (a right) when one uses the test of what is a custom. It is further revealed that the main parties in public sector collective bargaining are the Public Service Coordinating Bargaining Council (PSCBC), the Department of Public Service and Administration, and trade unions. The last two ordinarily have competing interests and the PSCBC is the platform where they resolve their differences and enter into collective agreements. In 2018 a three-year wage agreement was reached for public servants, which the employer failed to implement in its last year. This led to the PSCBC intervening in the matter, but before it could reach fruition the matter was scheduled to be heard by the court. The last leg of the agreement was declared to be invalid and unenforceable on the basis that it was unaffordable and did not comply with the legal prescripts. This led to a period of uncertainty (2022-2023). This period saw government employees receiving 0% salary increases, failed wage negotiations, the unilateral imposition of a wage increase by the employer, a disruptive strike, and shorter wage agreements to address the shortcoming identified by the LAC in PSA v DPSA. The context provided yields the answer (the conclusion) that there is still room for collective bargaining, but that it will be filled with turbulence.