The National Professional Teachers  Organisation of SA (Naptosa) has expressed its disappointment at the Constitutional Court's judgment that the state was within its rights not to implement the third leg of the agreement to grant public servants the negotiated salary increases in April.

On Monday, the Constitutional Court dismissed the applications for leave to appeal with no order to costs. 

Naptosa executive director Basil Manuel said the employer's conduct flies in the face of good bargaining.

"We will go to the public servants summit with a new energy to ensure that public servants and teachers are treated more fairly. We cannot accept that it is a given that public servants don't deserve better," Manuel said.

He said the relationship they had with the employer prior to the case has been dealt a severe blow.

"This is a sad day not only for public servants but also for bargaining collective as a whole," he said.

Meanwhile, the Constitutional Court said that on May 21 2018 the state entered into an agreement with the relevant  trade union representatives which  incorporated the collective  agreement. According to the court, the agreement was signed by a majority of trade  union  representatives at the Public Service Co-ordinating Bargaining Council and became binding on all parties.   

"The state suggests that this agreement was conditional on it implementing various cost-cutting measures but admits that the applicants refused to allow a clause to this effect to be  included in the agreement.   

"However, the applicants contend that the collective agreement was never intended to have  such a condition.

"The collective agreement comprised three central clauses – clause 3.1 regulated wage increases for 2018/2019; clause 3.2 regulated wage increases for 2019/2020; and clause 3.3 regulated wage increases for 2020/2021.

"The  2020/2021 wage increase expired on 31 March 2021. The effect of these three clauses was that the allocated budget would be exceeded by R30.2bn, an excess not approved at all by any act of parliament.

"After the conclusion of this agreement, SA's economic situation deteriorated markedly. Despite this, the 2018/2019 and 2019/2020 increases were implemented," read the court document.   

According to the Constitutional Court, the then minister of finance Tito Mboweni drew  attention to the fact that the public service wage agreement exceeded budgeted baselines  by R30.2bn over the medium term, and said that Treasury had not allocated additional money for this, and that national and provincial departments would “be expected to absorb  these costs within their compensation baselines", read the court papers.

However, according to the Constitutional Court before the arbitration was finalised, on June 8 2020, the unions launched an application in the labour court seeking an order compelling the state to enforce the collective agreement for the 2020/2021 financial year.

The Labour Appeal Court found that the cost of the collective agreement could not be covered solely from the minister of public service administration’s budget and that Treasury did not provide a written commitment to guarantee additional funding and no further agreements were made by other departments or agencies in accordance with the regulations. 

Therefore, it declared the enforcement of clause 3.3 unlawful for violating sections 213 and 215 of the constitution and the impugned regulations and dismissed the application.

"The court noted that regulations 78(2) and 79(c) created jurisdictional facts which must exist prior to the minister’s exercise of power to negotiate and conclude collective agreements on behalf of the state, absent which the minister acts without legal authority. 

"The court found that the jurisdictional facts were not present and that non-compliance with the requirements of regulations 78 and 79 rendered the resultant collective agreement between the state and the trade unions invalid and unlawful, and thus unenforceable," read the court documents.