THE SOUTH African Federation of Trade Unions has called on Labour Registrar Advocate Lehlohonolo Molefe to ‘resign’ – after the labour court suspended as ‘reckless’ his bid to deregister the Democratic Municipal and Allied Workers Union of South Africa (Demawusa).
Molefe’s decision to deregister the union DEMAWUSA – over strike action – was suspended by the labour court.
Molefe had deregistered the union last January 31, after it allegedly failed to provide proof that it conducted a secret ballot prior to its members going on a protected strike, among other reasons.
This was after Johannesburg’s Metrobus employees, who are members of DEMAWUSA, had embarked on a protected strike action on September 17 to demand that workers be paid according to their experience, and that the union be allocated offices and resources in all three Metrobus depots.
‘Literally the next day, after seeing the strike on television, the office of the registrar wrote a letter to DEMAWUSA to demand proof that the union had secretly balloted the members in line with the new provision of the Labour Relations Act (LRA),’ Saftu general secretary Zwelinzima Vavi said.
On Tuesday, the labour court ruled that Molefe’s decision to deregister DEMAWUSA be ‘suspended pending the outcome of the union’s appeal against the decision.’
‘Saftu has maintained,’ Vavi went on, ‘that the office of the registrar acted not only recklessly but its decision is informed by the political bias against the independent, democratic and campaigning unions that do not form part of the sweetheart arrangement of the tripartite alliance with the governing party.
‘We have charged that the registrar is wholly inconsistent in the application of the law. Unions in the tripartite alliance, which, for years, did not comply with the provisions of their own constitution and in direct contradiction to sections 98, 99 and 100 (of the LRA), were never deregistered.’
The labour registrar has been cracking the whip on unions which allegedly fail to comply with their constitutions and the LRA. In March 2019, Molefe issued a notice of intention to deregister the Association of Mineworkers and Construction Union (Amcu) saying it had violated its own constitution – a move the union described at the time as a political attack aimed at destroying it.
At the time, Molefe charged that Amcu had not held an elective conference for five years, and had ceased to function as a genuine trade union as envisaged in the LRA. In September, Molefe ditched plans to deregister the union after a number of written representations from its leadership.
Then the Amcu leadership told delegates at its national elective conference later in September that they had told Molefe ‘if you dare deregister Amcu, the mines and other industries will come to a standstill’.
However, Molefe then denied being threatened by the union for his decision to not go ahead with his plans to deregister it.
In May 2019, however, Molefe wrote a letter to SA’s largest trade union, the National Union of Metalworkers of SA (Numsa), saying its audit reports from 2009 to 2015 had failed to comply with the LRA.
Numsa was expelled from union federation Cosatu, a key ally of the ANC, in November 2014. The Saftu affiliate has insisted that it complies with the LRA and described moves to deregister it as political.
On Wednesday, Molefe told Business Day that his office is ‘studying’ the labour court judgment. ‘Once we are done, we will then decide on whether we should appeal the judgement.’
Meanwhile the (South African) government’s grand plan to cut the public wage bill would seem to be on a road to nowhere, at least for this year, if the unions have anything to do with it.
The government’s review of the 2018 public sector wage agreement, announced late last month, may just turn out to be a damp squib.
For all the government’s posturing and claims to be talking to labour about reviewing the deal, the Public Service Co-ordinating Bargaining Council (PSCBC) – the bargaining council in which the agreement was struck – says the government cannot simply pull out of the deal.
Should it do so and fail to give effect to the wage increase it agreed to in the 2018 wage talks, the government risks being hauled to court by unions in litigation that could span a number of years. Such a move could also place the government in a precarious position politically, given the breach of trust it would involve.
This is according to PSCBC general secretary Frikkie de Bruin, speaking to the FM about the review tabled in the council on February 25.
‘The bottom line is the government cannot withdraw from a binding agreement if that agreement has an expiry date and a deadline for its implementation – it cannot withdraw in law,’ De Bruin says.
He describes the situation as a marriage in which one party was caught cheating: and the PSCBC is the go-between trying to save the rocky union.
While it is not ‘competent’ in law for the government to withdraw from the deal, it may simply decide not to comply, and not implement the inflation plus 1% increase on April 1, the date agreed to by parties in 2018.
This is one scenario De Bruin sketches. If this happens, unions will most likely declare a dispute, and the PSCBC would have to step in to enforce the agreement.
If the government were to then ignore an enforcement order, the stage would be set for the unions to go to court.
De Bruin confirms to the FM that there are no formal talks about the review under way between the government and the unions in the council. He says both sides are ‘upset’ and have their own rules of engagement.
The unions, for example, refuse to entertain talk about a review, while the government wants labour to agree to the possibility of a review before entertaining any further talks.
This comes just weeks before the last leg of the wage deal is expected to be implemented. With three weeks to go, and unions standing firm, government’s much-publicised attempt to reduce the public wage bill appears to be dead in the water.
‘It’s a power play on both sides,’ according to De Bruin. How the government proceeds will set the tone for the next round of wage talks, set to unfold later this year. Should it fail to implement the increase on April 1, it would mark a severe breach of trust, with far-reaching implications for collective bargaining, De Bruin adds.
‘It could flaw the whole collective bargaining process … we are absolutely in uncharted territory for the public sector,’ he says, adding that it could also spell the end of multiyear agreements.
This would have a negative effect on the government’s ability to plan and budget over the medium term.
Ironically, the Public Servants Association, which represents about 250,000 workers, had requested that the 2018 deal be reopened and reviewed shortly after it was signed, as it was unhappy with the deal. The government flat-out refused at the time, saying there was ‘no way’ the deal could be reviewed.
The National Education Health & Allied Workers Union (Nehawu) this week confirmed that it has held no formal talks with the government and that, come April 1, it expects the increase to be implemented.
Spokesperson Khaya Xaba says the union will ‘go to war’ if this doesn’t happen.
Meanwhile the SA Democratic Teachers Union held a key leadership meeting over the weekend, in which its top brass rejected the government’s proposed review.
‘The (national executive committee) clearly stated that it was not prepared to compromise on this but was prepared to engage the employer on the next round of negotiations and other alternatives aimed at saving jobs in the public service,’ said general secretary Mugwena Maluleke.
‘The union will embark on report-back meetings to members to allay fears about their jobs and wages. The union will also begin the process of consultations for the next round of negotiations,’ he continued.
Nehawu is holding a bargaining forum later this month, and a bargaining conference thereafter, also to prepare for the next round of wage talks which open in August. The next meeting before the PSCBC will take place in April.
The government’s review proposal appears to be going nowhere, unless it reneges on the 2018 deal. But this would be tantamount to a declaration of war — one that would place collective bargaining, and President Cyril Ramaphosa’s administration, in an untenable political position.