Managing COVID-19 in the workplace: Minister admits ultra vires action but utilises NEDLAC to achieve his irrational goal

Following the promulgation of the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, 2022 (the Code), by the Minister of Employment and Labour, NEASA, on 18 May 2022, filed an application in the High Court for an order that the Code be declared ultra vires, unlawful, unconstitutional and be reviewed and set aside.

On 23 June 2022, NEASA received a letter from the Minister, in which he informed us that, in view of the fact that the Code was gazetted in terms of the wrong section of the Labour Relations Act (LRA), the Minister concedes that the Code is ultra vires under the provision of the specific section of the LRA. 

We informed the Minister that he is now under a constitutional obligation to withdraw the Code immediately.

We pointed out to the Minister that, in issuing a new Code, both he and NEDLAC will have to consider the 22 June 2022 withdrawal of the Regulations Relating to the Surveillance and Control of Notifiable Medical Conditions: Amendment 2022, by the Minister of Health.

We have reminded the Minister that, in a press statement on 23 June 2022, the Minister of Health inter alia stated the following:

"Having monitored the positive direction for more than three weeks we came to the conclusion that the peak infection which we concluded was a limited 5th wave driven by subvariants and not a new variant of concern was dissipating and that there was no more any eminent [sic] risk.

It is on this basis that we approached the NCCC and the National Health Council which is made up of all Health MECs with a proposal that the limited regulations which dealt with:

(a)  Wearing of masks indoors
(b)  Limitations of gatherings
(c)  Vaccination proof or PCR negative tests at Ports of Entry, – 

should all be lifted"

We consequently pointed out to the Minister that: 

  • we do not understand how he can continue to insist on the Code being part of a specific Covid-19 workplace response, where the Minister of Health has  confirmed that it is no longer a public health concern; and
  • his insistence on continuing with the Code, is out of step with the rest of the Government's position that Covid-19 is no longer a public health threat that requires heavy-handed regulations in order to manage and mitigate, and that we struggle to understand how, in the view of the current circumstances, he would insist on persisting with the Code.

Subsequent to our letter, we were shocked to learn that the Minister had already issued a new code, on 24 June 2022, under the auspices of a purported decision by NEDLAC. This code is identical to the one previously issued by the Minister and admitted to being ultra vires.

The timing of the new code is indicative of the fact that the Minister and/or NEDLAC did not take cognisance of any of the submissions made in our correspondence and is clearly in support of an ulterior motive.

It is highly doubtful that NEDLAC followed any proper procedure in reaching this decision.

NEASA will be launching a new application for an order setting aside the new code on the basis of both substance and procedure.