Labour Court decision is a ‘blatant travesty of justice’ says South African Confederation of Trade Unions

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SAFTU members marching from the Labour Court in Johannesburg to the Department of Labour offices

SOUTH AFRICA’s union federation SAFTU is appalled by the judgement of the Labour Appeal Court against several public sector unions over the unilateral government withdrawal from a signed and legally binding agreement.

The Labour Court dismissed the application to enforce the final year of a three-year collective wage agreement, concluded between the unions and government. In the most blatant travesty of justice, the Labour Court has declared Clause 3.3 of the 2018 public service collective agreement invalid.
The judgment is a direct attack on the right to collective bargaining. It represents a wrecking not just of a wage agreement but the very integrity of the collective bargaining system. SAFTU is disappointed but not entirely surprised by the judgement.
This judgment is only the latest in the series of anti-labour class jurisprudence recently coming out of the courts and confirms that, in the final analysis, the judiciary administers the law in the interests of the ruling class.
2018 Public sector collective agreement
In the aftermath of wage negotiations with the government, the parties reached an agreement on June 8 2018.
The agreement entailed wage increases of between 6 to 7% in 2018/19, 3% in 2019/20 and 6 to 6.5% in 2020/21.
Government has implemented the agreed increases for the first two years of 2018/19 and 2019/20 but escalated a campaign to viciously attack the agreement and vilify the public servants and public sector trade unions, to justify its decision not implement the deal.
Despite constant assurances by the Minister of Public Service and Administration to the contrary, the Minister of Finance announced early this year that the government has unilaterally decided to pull out of the agreement and not to implement Clause 3.3 of the agreement to increase public servant wages for the year 2020.
The agreement was already a compromise imposed on public servants by the unwavering position of the government to offload the burden of the capitalist crisis worsened by neo-liberal macro-economic policies on public servants and the working class.
These policies have ensured that the monopoly-capital big corporations and the tiny elite at the top of the social pyramid-pay less in taxes.
It is these policies, bailouts of private corporations and plundering of the public purse by the capitalists and their corrupt politicians, that bear the primary responsibility for the economic crisis.
The myth of a bloated public sector and inflated public sector wages is bourgeois propaganda to justify the brazen attacks currently being carried out against public servants and the working class as a whole.
The lies of a bloated public sector have been repeated frequently enough and have settled as truth not in important segments of society but into the judiciary.
This is reflected in the language of the judgement. The Court falsely and scandalously seek to counterpose the interests of public servants to the rest of the working class and poor masses in the country.
It negates the fact that both public servants and the poor majority suffer from the neo-liberal hollowing out of the state and crumbling public services.

ANC government placing itself at the vanguard of the capitalist attacks against the working class
Through the attack on the public servants, the ANC is placing itself at the forefront of the capitalist war on workers across the economy.
The wrecking of the public sector agreement has set a ghastly precedence for capitalists in other industries. In the motor industry, SA Post Office and many other sectors, employers are already following this example to renege on the agreements using coronavirus as an excuse.
In the clothing and textile, and many more industries, the bosses are imposing wage freezes, and rolling back many hard-won conditions.
By wrecking the public service collective agreement, the ANC has, however, more than reaffirmed its consistent political loyalty to the capitalist class.
It has betrayed the workers in the public service, who are the backbone of its alliance partner, the Congress of South African Trade Unions (COSATU).
This brazen act of class and political betrayal ultimately reveal the false theoretical and political foundations of the Tripartite Alliance. It is the cruel reminder that the Tripartite Alliance serves only as an instrument of deception to chain the working class to the ruling class.
SAFTU calls on COSATU to break from the Tripartite Alliance and to reclaim its independence. COSATU must fight shoulder to shoulder with other working-class formations against the neoliberal onslaught on the working class.
COSATU needs to fight alongside SAFTU and other working class forces in order to achieve immediate and historical interests of the working class as a class for itself. In a nutshell, to become a force for a workers revolution and socialism.
If there is doubt about this need, the Judgement makes clear its considerations in para 31 where the Court argues that:
‘In summary, the prejudice caused by refusing to adjudicate upon the legality of Clause 3.3 in circumstances where so large a sum of money is required from the public purse and where it is common cause that the State finances are in an even more parlous state than they were before the advent of Covid-19, all dictate that the discretion of this court should be exercised in favour of examining whether there is legal justification for the payment of so large a sum of public money to a small cohort of the South African population.’
This statement is deeply political, ideological and serves to parrot neoliberalism that has helped the rich to be richer and the poor poorer.
Much reliance was placed on the treasury’s arguments of the national finances and the inability of the state to afford the pay deal without imperilling the interests of other sections of the working class such as grant claimants and beneficiaries.
This reasoning completely ignores the reality that capitalists in South Africa are sitting on R1.6 trillion of investable capital that could potentially, through taxation finance the wage settlement without taking from the social expenditure.
The judgement does not consider that the government’s own officials admit it loses 35-45% of its procurement budget to tender fraud which is a staggering R250 billion annually. The Court also ignore the government’s own information that the economy loses up to R400 billion through illicit cash outflows.
Instead of considering all these facts, the Court has trapped itself into ‘there is no alternative’ to self-imposed ‘Structural Adjustment Programmes’ mentality of government.
Fundamentally, this reasoning falsely pits the interests of sections of the working class against each other, while the capitalist class and big corporations who enjoy a far lower corporate tax rate of 28% than at the end of apartheid (54%)!
This manoeuvre to divide the working class not only ignores the fact that the very same public servants remit portions of their wage to family members living in unemployment. It also represents an attack on the main mechanism available in a capitalist system of wage slavery to all workers seeking to improve their living conditions by gaining a larger proportion of the fruits of their labour – namely by engaging in industrial action and collective bargaining.
The precedent set by the treasury and this judgment will result in more employers using the spectre of bankruptcy to pull out of agreements providing for hard-won improvements in wages, working conditions and job security.
The judgment relies on the constitutional powers of the treasury. Still, it fails to consider the implications of the erosion of collective bargaining on other rights enshrined in the Bill of Rights, including the basket of socio-economic rights and set the clock back to the pre-Wiehahn Commission era.
If this setback is not to be in vain, this judgement should serve as a cruel reminder and clarification of those who suffer illusions in the judiciary.
In our view, this and growing anti-working class jurisprudence coming out of the courts is a crushing blow to judicial cretinism.
The lesson of the judgment is that the entire state apparatus under capitalism, including the legislature, executive, and judiciary is, in the final analysis, the apparatus of the ruling capitalist class.
In some individual instances, the more progressive judges will, relying on a relatively progressive constitution with rights to substantive equality, socio-economic, cultural and environmental rights, will rule in favour of the working class.
But where the fundamental interests of the working class come up against the profit imperative of the ruling class, especially in the period of a deepening organic crisis of capitalism, the judiciary invariably sides with capital, even where there are clear and persuasive legal arguments in the other direction.
SAFTU will also be studying and consulting on the judgement and to explore its options in law. We will certainly support any decision to appeal the ruling not only in Court but through mobilisations and mass action.