At the Constitutional Court last year the SA Correctional Service Workers Union (SACOSWU) won a historic victory. In a majority verdict the court outlawed the abuse of a trade union’s majority status to deny workers of minority unions their right to recognition, collective bargaining and freedom of association.
SACOSWU was opposing an appeal by POPCRU to the Constitutional Court to overturn a lower court’s ruling that where a majority union has a pre-existing collective agreement with the employer setting a threshold of representativeness for admission to a departmental bargaining council which the minority union does not meet, that does not permit the majority union to then debar the minority union from bargaining with, and entering a collective agreement to grant them the self-same organizational rights.
The majority judgement could not be clearer: “The [constitutional] right to engage in collective bargaining lies at the heart industrial action… Participation of each side [the trade union and the employer] in the collective bargaining constitutes the exercise of this right…
“Notably, on the workers’ side, the right is conferred on a trade union. This makes membership of a trade union the gateway to collective bargaining for workers. Therefore the right every worker to form and join a trade union is critically linked to the right to engage in collective bargaining. The right to form and join a trade union guarantees freedom of association. Its importance is acknowledged not only in the Constitution but in international law.”
The South African Federation of Trade Unions welcomed this great victory, but warned that a change in the law does not translate into a change in the reality in the workplace and the boardroom unless the unions mobilize their members to fight for its enforcement.
That warning has been proved correct. Today SACOSWU is still battling to exercise the rights to which the Constitutional Court ruled they were entitled to.
On 26 February 2019 its national office bearers were scheduled to have a meeting, scheduled two weeks earlier, with the employer, the Department of Correctional Services (DCS), represented with the Chief Deputy Commissioner (CDC) for Human Resources, Romeo Adams, to discuss this issue.
But at around 15.30 on Friday 22 February 2019, the CDC’s office phoned to cancel the meeting.
On 25 February SACOSWU went to the DCS head office to communicate to the National Commissioner, Arthur Fraser, about its dissatisfaction on how they had been treated by the employer, six months after the Constitutional Court judgement.
“We are struggling to meet and discuss our organizational rights,” said SACOSWU. “On our arrival the Commissioner was not available and no-one there was prepared to give us a hearing.
“The Chief Operating Commisioner, Mandal Mhbela then gave an order that an Emergency Support Team (EST) must be called to take us out off the building. Within 30 minutes the EST from Kgosi Mampuru arrived and we engaged with them until a date for the next meeting was settled.
“We shall be seeing the Management Team on 8 March 2019 and we are also of the view that we should demonstrate at the head office gate from tomorrow, 27 February, until they meet us.”
The union has been summoned to go to the parliamentary portfolio committee meeting tomorrow to report on the matter there ad request them to force the Commissioner to meet with us now.
The department is trying to reverse a Constitutional Court ruling through bureaucracy, and it is vital for all unions, especially those in a minority position, that they do not succeed. Unless the minority unions stand firm, employers will simply ignore the Constitutional Court.