THE NATIONAL Economic Development and Labour Council (Nedlac) will be approaching the Constitutional Court early next year seeking a declaratory order enforcing mandatory Covid-19 vaccines in the workplace.
This was revealed by the Minister of Employment and Labour Thulas Nxesi during his keynote address at the 26th Nedlac Annual National Summit yesterday.
This comes as a number of JSE-listed firms have come out in support of mandatory vaccines for the coming year as cases in South Africa continue to rise.
Quoting Nedlac’s input into the economic reconstruction and recovery plan, Nxesi said stakeholders had made a number of proposals to the government for vaccine mandates.
Nxesi said Nedlac wanted the health and safety direction of the Department of Labour to be strengthened so that vaccination can become mandatory where a risk assessment at the workplace required this.
He also said Nedlac wanted access to certain venues, gatherings and events, particularly in the hospitality sector, to be restricted to vaccinated people only.
“While the social partners believe that vaccine mandates will pass constitutional scrutiny, they support the work of Business Unity SA to get a declarator from the Constitutional Court in the new year,” Nxesi said.
“They understand that their proposals will be brought to the attention of the National Coronavirus Command Council and other relevant government structures so that decisions can be made speedily to improve the vaccination rate and mitigate the negative impact of a fourth wave.”
Herbert Smith Freehills employment lawyer Jacqui Reed yesterday said Nedlac would be able to succeed in its court application on both legs to say vaccine mandates were not unconstitutional.
Reed said in terms of Occupational Health and Safety Act, employers had an obligation to provide a safe and healthy work environment and science had proven that unvaccinated workers were “a risk”.
“I think it is constitutional. In a workplace the Occupational Health and Safety Act gives employers the right to protect employees,” Reed said.
She also said individuals could also argue for their right to bodily integrity in terms of Section 36 of Constitution, but the Bill of Rights also limited certain rights.
“This application would pass constitutional muster. We all have these rights in the Bill of Rights. You cannot limit a right to life, a right to health, but you can limit the right to an opinion,” she said.
“In terms of public gatherings scenario, you use the property rights such as the right of admission. I think in both instances that the limitations of the rights are not unreasonably enforced.”
The National Union of Mineworkers (NUM) yesterday said though it supported the vaccination drive by the government, it was against mandatory vaccination of workers.
“We will defend this right with all the means we have to ensure our members are not discriminated against because of their constitutional right to exercise their beliefs,” said William Mabapa, NUM acting general secretary.
“The National Executive Committee is deeply worried that some mining companies have been forcing workers to vaccinate for Covid-19 and enforcing proof of vaccination when entering their premises. This NUM rejects with contempt.”
siphelele.dludla@inl.co.za
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