SACCAWU CONTEMPLATES / CONSIDERS APPAEALING AGAINST THE COMPETITION TRIBUNAL DECISION ON THE WALMART 51% ACQUISITION OF MASSMART
SACCAWU notes the decision of the Competition Tribunal to approve Walmart's acquisition of 51% of Massmart with utter dismay and cannot help but wonder whether the Commissioners of Tribunal were attending the same process attended by the intervening and objecting parties.
Whilst somewhat not surprised, if the history of our experiences with the Tribunal on Acquisitions, Mergers and Private Equity Buy-Outs is anything to go by, the Union is grossly disappointed by the Tribunal's decision to approve the acquisition with such meek, flimsy, vague and discretionary conditions.
In fact, to term same as conditions is an exaggeration and abuse of the terminology, legitimization and elevation of the merging companies' non-committal eleventh (11th) hour undertakings, if not capitulation gesture.
This, despite the discovery documents, submitted to the Tribunal reluctantly at the instance of intervening Governmental Departments, blatantly exposing that the retrenchments of 503 workers (from a target of 1 500) and the dismissal of 71 workers (in breach of the collective agreement abolishing the forty [40] hour rolling week); were not only linked to the process but integral / central part of Massmart's repositioning for this acquisition and merger transaction.
Such company documents also exposed the anti-Union tendencies with strict interest on the outstanding duration of the current collective / relationship / recognition agreement with SACCAWU.
All objecting unions, including COSATU, overwhelmingly proved issues of stifling of the competition both within Wholesale & Retail Sector as well as Public interest issues. This evidence was corroborated by intervening Government Departments, international expert witnesses, as well as by the Shoprite Checkers Tribunal witness. What becomes evident is that to the Tribunal, shedding of jobs becomes a Public interest only if same is said to be significant population of members.
This approach seems very insensible and insensitive, hence families affected by the deliberately shedded 574 jobs are merely numbers to the Tribunal. Sadly, the Tribunal seems to have left the livelihood of such families squarely to the discretion of the merging companies, despite the closing submission of the Competition Commission who also became convinced by the corroborative evidence, to the extent of reducing the demand of reinstatement of retrenched workers to be made a condition to merely an non-binding "consideration" by the merged entity.
The Tribunal, despite all overwhelming and convincing evidence presented before it, as is usually the case, decided to go against the grain and concluded contrary to the evidence and in the process pull wool over the eyes of the unsuspecting Public that there are conditions, when in fact the Tribunal simply capitulated, without adding any substance, to the guilty conscience orientated hollow undertakings by the merging companies, which they merely record "voetstoots" as "conditions" when the reality is the converse.
Over time, it has been our observation that the Tribunal, which is supposed to be a Public Watchdog allows itself to be presented with what it wants to hear in order to justify the rubber stamping of proposed mergers/acquisitions, after which the Tribunal would not care what happens going forward.
‘In all previous transactions that we know of (at least those involving SACCAWU as an intervening or interested party), the Tribunal had, based on the recommendations of the Competition Commission from the company presentations, accepted vague submissions that there would be no job losses as a result of the merger in the so-called foreseeable future.
The foreseeable future that is neither qualified nor quantified and got taken on the word of the merging parties, despite objections and arguments to the contrary by SACCAWU; with bare signals like immediate duplication of jobs, facilities, systems, etc, which on their own create potential for job shedding. As would be expected, within six months or so, jobs are beginning to be shedded massively, thus adding to the already over-populated reservoir of unemployment and poverty. The cases in point are, but not limited to:-
Pick ‘n Pay's acquisition of Score Supermarkets that were doing well especially in townships and the lower market bracket. Score has since perished with a lot of jobs being lost in the process.
African Bank's acquisition of Ellerine Holdings, which also was followed by massive store closures, departmental closures, outsourcing of functions and consequent job losses.
The list is endless and continuation of same can be seen in Massmart's current process of acquiring Rhino Cash and Carry so as to close down competition within the scope of Rhino and its competitors.
SACCAWU strongly reiterates that Walmart transaction cannot and should not be approved without tangible, practical and implementable and/or enforceable conditions, hence the Union is exploring and consulting on its resolve to take the Tribunal's decision / outcome on appeal. On the other hand, together with COSATU on her section 77 Application, we would mobilise our members within the Labour Movement (both Locally and Internationally) and civil society for the intensification of the campaign until our demands that are intended to set conditions are fully met.
Accordingly, we are currently consulting our Lawyers on the process towards lodging an appeal. We will closely study the reasons once forwarded on June 29, as these preliminary reflected on the outcome are rather vague and contradictory in many respect.
Statement issued by SACCAWU head office, June 2 2011
Click here to sign up to receive our free daily headline email newsletter
