Labour Court Judge Benita Witcher has set out her reasons for dismissing an urgent application by the National Education, Health and Allied Workers’ Union (Nehawu) to prevent all health care workers from carrying out their duties during the national state of disaster if they are not provided with the necessary personal protective equipment (PPE).
Nehawu made the urgent application after 48 health workers from Netcare’s St Augustine’s Hospital tested positive for the coronavirus.
The judgment, which was delivered on Saturday morning, states that "the applicant had failed to make out a case on the law and facts."
While Judge Witcher dismissed Nehawu's application and ordered them to pay the costs of the first respondent, the national Department of Health, she was at pains to point out that healthcare workers are entitled to personal protective clothing as they play a critical role in the fight against Covid-19.
"At the outset, I must state that this Court (and the respondents) acknowledge that all health workers remain in the frontline of the fight against Covid-19 (and, I dare say, heroically so) and fully agree that they are entitled to PPE so that they are not exposed to avoidable risks.
"Further, even if not in law, the applicant is an important social partner and component in the work of the respondents against the virus. However, this is a legal dispute, and the applicant provided no legal or evidentiary basis for its case," the judge said.
READ THE FULL JUDGMENT:
The Health and Other Services Personnel Trade Union of South Africa (Hospersa) has meanwhile advised members at both public and private health institutions to down tools and not place their lives at risk if employers do not provide them with PPEs.
Hospersa said it had not received any response from the Minister of Health or provincial MECs for Health regarding the insufficient supply of PPEs at public health facilities.
Nehawu general secretary Zola Saphetha said that Nehawu Investment Holdings would contribute towards securing PPEs and other related necessities.
He added that their court application was dismissed after the union had decided to withdraw the matter that was scheduled to be heard on April 7.
Saphetha stated that the union had agreed to suspend legal action, after the Minister of Health and the Department of Health resolved to address concerns regarding the health and safety of workers.
“We will monitor the implementation of the commitments made by the department and will not hesitate to review our decision,” said Saphetha.
He added that they met with the Minister of Health, Dr Zweli Mkhize, on April 8 to discuss the need for government to comply with the Occupational Health and Safety Act.
“Workers are compelled to work under difficult conditions, including exhaustion, lack of transport and dilapidating infrastructure.
“The minister made the commitment that no worker would be forced or intimidated into working without occupational protection.”
Saphetha said it was agreed that the training of workers and the procurement of the PPEs would be prioritised.
"The department undertook to send out guidelines to provinces to ensure uniform application of the same norms in relation to the types of PPEs per categories of front-line workers. They will also ensure that there is a proportional redistribution or reconciliation of the different items of the PPEs across provinces and health districts."
He indicated that the suspensions of all workers would be reviewed.
"Workers must not be harassed. Instead, there must be a collaborative effort in the fight against the virus and disease."
Saphetha stated that the national health and safety committee would provide counselling to employees who were working under highly stressful conditions.
"Risk assessments must be performed to ensure that infection control measures and occupational hygiene is practised. The work of the committee must cover both public and private health care workers equally."
He said that inspectors from the Department of Employment and Labour would be available to ensure compliance and enforce the Occupational Health and Safety Act.
"It was agreed that there shall be proper education on the use of PPEs. Infection control as well as the handling and movement of deceased bodies will be done in line with guidelines issued by the department and the National Institute for Communicable Diseases."
Saphetha indicated that the department agreed to provide catering for workers who worked long hours.
“Due to inconsistencies in the provision of public transport, workers are often left stranded after their shifts. The department will look into providing transport for health care workers,” he added.
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