Recent Labour Appeal Court and Constitutional Court judgments not applicable to private sector

​​Important judgments were recently handed down by the Labour Appeal Court and Constitutional Court. Given the issues dealt with in these judgments (collective bargaining and interception of communication), questions were raised about their impact on the private sector.

These judgments, touching on the public sector wage agreement and state surveillance, only affect the public sector, and we explain why below.

Public sector wage judgment* – Labour Appeal Court

In this judgment, the Labour Appeal Court (LAC) considered a wage dispute brought by admitted trade unions of the Public Service Co-ordinated Bargaining Council against the South African government (PSCBC). Ultimately, the LAC dismissed the application, which means that government is not obliged to pay wage increases in line with a collective agreement concluded between the parties back in 2018.  The dispute turned on the interpretation of legislation only applicable to the public sector.

The LAC held that it would not be just and equitable for the government to pay the salary adjustments for the 2020/21 financial year, given the country's current economic and social context and that the salary adjustments would only benefit a relatively small portion of the population.

Some of the admitted trade unions have publicly announced that this judgment signals the "death knell" for collective bargaining as we know it in South Africa, assuming that all employers are impacted by it. This is not correct. The judgment will not have any application for employers that operate in the private sector, given the specific legislation involved and applied by the LAC.

State surveillance judgment impacting RICA** – Constitutional Court

In this judgment, the Constitutional Court (CC) considered the power of the state to implement individual and bulk surveillance of data and communications under the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA). The judgment deals with the conflicting right of the state to engage in individual surveillance (or bulk surveillance) and the right to privacy.

After an investigative journalist discovered that he was a subject of state surveillance, he launched a constitutional challenge against certain sections of RICA. The sections of chapter 3 of RICA which deal with applications for, and issuing of, directions and entry warrants were at the centre of the constitutional challenge. Under these sections, the state is required to make an ex-parte application for surveillance before a designated judge. If the judge approves the application, the state may lawfully engage in targeted surveillance of individuals. The CC, after careful application of the competing rights involved, declared bulk surveillance to be unconstitutional, together with various other aspects of RICA relating to state surveillance.

Apart from chapter 3 of RICA, the other chapters of RICA remain constitutional. Section 4 of RICA provides that any person (including an employer/employee) may intercept any communication if they are party to the communication. The only persons excluded from this section are law enforcement officers and the only exception is if the communication is intercepted for purposes of committing an offence. It is in this context that many employers choose to enforce a RICA-related communication monitoring policy, which usually prohibits employees from monitoring, intercepting or recording communications in the workplace without the written consent of the employer or the consent of the other parties to the communication.

The recent judgment of the CC does not impact on the constitutionality of the other chapters of RICA and, consequently, it has no impact on any RICA-related communication monitoring policies that employers may enforce in the workplace.

* Public Servants Association and Others v Minister of Public Service and Others (J500 2020) [2020] ZALAC 54 (15 December 2020)