COSATU concerned about NEASA case

A Labour Court case is underway, whose outcome could have serious consequences for the future of labour relations in South Africa and set back the struggle for workers' rights for years to come.

Section 23 of the South African Constitution's Bill of Rights says that "every trade union, employers' organisation and employer has the right to engage in collective bargaining."

That right is now under grave threat. On 25 September 2014 the Labour Court granted the National Employers Association of SA (Neasa) an interim interdict in response to their application to prevent this year's wage agreement, signed at the Metals and Engineering Industries Bargaining Council (Meibc), being extended to Neasa's affiliated companies and all non-parties to the agreement.

Under the agreement, which ended the National Union of Metalworkers of SA's month-long strike, workers should get increases of up to 10% over the next three years and other improvements in their working conditions.

But Neasa, which, in the negotiations, offered an increase of only up to 8% and insisted on concessions from labour, has refused to accept the agreement and some of its affiliated firms have locked out their workers. (See the list below). COSATU has urged all its affiliates to support these workers locked out by Neasa companies and demands their reinstatement.

The court agreed to give the parties until 4 November 2014 to come up with arguments for or against a permanent interdict which would stop Meibc from sending the agreement to the Minister of Labour, as the law demands, for her to extend it to the entire sector, which would then make it legally binding on all employers in the sector.

If this was granted, and Meibc were forbidden to send the agreement to the Minister it would make the agreement redundant and unenforceable. Neasa, and indeed any employers, would then be free to pay lower wage increases than those in the agreement.

Neasa also seeks a court ruling that the major employer group, the Steel and Engineering Industries Federation of SA (Seifsa), cannot sign wage deals because it is a federation of employer groups - not an employer group itself, which is not allowed in the Meibc constitution. They argue that the number of employers who signed the deal with NUMSA - only those in Seifsa - is far below what is defined in the Labour Relations Act as representative of the whole sector.

Neasa also argues that the Meibc's management committee wasunconstitutionally elected at its annual general meeting, that is was constituted in a way that did not accurately represent the relative strength of some employer organisations and that it had been sidelined during the wage talks. Italso claims that a number of smaller employer groups are illegitimately being denied full voting membership.

The majority of Meibc members nevertheless voted last week to ask the Minister to extend the wage deal across the sector, including to parties that had not signed the July agreement.  Its general secretary, Thulani Mthiyane, says that the council was obliged to follow the decisions taken by voting members.

He argued that before the Meibc management council - which, he insists, had been properly constituted - voted on the extension of the wage deal, all due processes had been followed. He expected that "when we argue the matter in full court proceedings in November there will be a decision that does not undermine collective bargaining."

Meanwhile NUMSA has refused to return to negotiations with Neasa. Its sector bargaining co-ordinator, Steven Nhlapo, has accused them of playing "dirty political games" in order to boost its membership and finances. "A decision by the minister not to extend the agreement risks destabilising the whole industry ... which is the core of manufacturing".

The Neasa case has similarities to another case being lodged by the Free Market Foundation, based on an argument that the Minister of Labour's enshrined power, under the Labour Relations Act, to extend bargaining council collective agreements to non-party employers, is unconstitutional.

The 2013 COSATU Collective Bargaining, Organising and Campaigns Conference, vowed to fight the FMF. It saw that a ruling in their favour would mean the death of collective bargaining, and that we could no longer practise solidarity with weakly organised workers, even when we represent the majority in the sectors.

"This in turn would leave workers at the mercy of their unscrupulous employers who will now willy-nilly offer them peanuts without any consequences," declared the Conference.

If the Neasa and the FMF have their way, collective bargaining agreements will not be worth the paper they are written on. What is the use of the constitutional right to collective bargaining if the agreements are not binding on all employers in a whole sector?

They will be in effect nothing more than voluntary agreements. If firms can legally employ workers on lower pay and worse conditions than in the agreement, how can their competitors who signed the agreement be expected to comply?

It will lead to a free-for all, where employers can pay whatever wages they can get away with. It will inevitably lead to a race to the bottom, as firms compete to cut their labour costs, ending with starvation wages, no protection of workers' human rights and naked exploitation across the sector.

The Neasa court case further strengthens the Conference's view that we face "a coherent, deliberately orchestrated, socio-economically and politically right-wing funded campaign to weaken and ultimately dismantle our democratically legislated labour relations dispensation, especially its collective bargaining machinery".

All these attacks are similar to moves made by international capital to destroy the labour movement and create conditions for even more extreme conditions of exploitation of the working class.

COSATU reaffirms the Conference declaration "to fight these anti-worker, anti-human rights attacks until the bitter end, legally organisationally and specifically on the streets and in our workplaces."

The federation repeats its call for all its members - and the tripartite Alliance - to reject this attack on our worker rights. If the courts uphold Neasa's and/or the FMF's interpretation of the law, then the law must be changed to bring it into line with Section 23 of the Bill of Rights.

If necessary we shall also explore lodging a complaint with the International Labour Organisation and we shall not flinch from implementing our 11th National Congress mandate to significantly step up our campaigns and our demand for a Living Wage, and take the battle to the streets protected by a Section 77 order.

The federation pledges its full support for all the workers who have been locked out for more than six weeks and are denied their right to work, and we are launching a campaign of solidarity in all COSATU provinces. Below is a list of workplaces where members are locked out.

List of companies and total number of members locked out

EKURHULENI REGION

SEDIBENG REGION

HLANGANANI

J.C BEZUIDENHOUT REGION

WESTERN CAPE REGION

NORTHERN CAPE REGION

MPUMALANGA REGION

KWAZULU NATAL REGION

 Eastern Cape

TOTAL 11

Statement issued by Patrick Craven, COSATU national spokesperson, September 30 2014

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