Following NUMSA’s historic victory in the Constitutional Court against labour brokers, workers have scored other major victory in the same court. In a majority verdict it has 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.
The SA Correctional Services Workers Union (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.
This sets an important precedent. From now all unions have the right to to represent their members and bargain on their behalf. And all employers now have a duty to grant minority unions organisational 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 make 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.”
This robust defence of workers’ constitutional right to collective bargaining is particularly important, not only for minority unions but for the entire labour movement, at a time when employers are attacking and undermining collective bargaining.
SAFTU welcomes this great victory, but warns that – just as with the ruling on labour brokers – 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.
Unions who are not recognized by their employers must immediately step up the fight for their right of access to workplaces, for stop-order deductions from their members, recognition of their shop stewards, the right to collective bargaining and an end to punitive ‘double deductions’ by employers deducting an ‘agency fee’ from non-members of the majority union, in terms of an agency fee agreement between the employers and sweetheart majority unions.
Unless the minority unions stand firm, employers will simply ignore the Constitutional Court.
It is the same with the ruling on labour brokers. SAFTU also welcomed that victory but warned that employers will seek ways to avoid having to employ directly workers they previous hired from labour brokers.
Already we have seen the example at Kellogg’s in Springs, where of 142 out of 328 packers and boxmakers, who had been previously placed by labour broker Adcorp, were taken on as permanent workers by Kellogg’s, in line with the Constitutional Court ruling.
Their pay doubled and they received benefits such as medical aid and a provident fund for the first time – but then they received retrenchment letters!
A similar process in unfolding at MTN, where jobs were outsourced to several different companies which MTN labelled “outsource partners” but which were in effect labour brokers. These companies paid lower wages and imposed worse conditions and benefits, but now, instead of being permanently employed by MTN, the workers are being threatened with dismissal.
SAFTU calls upon all workers to join the mass movement against all the attacks on the jobs and living standards of workers and the poor majority of South Africans, which is mushrooming by the day.
As well as demanding the complete banning of labour brokers and stopping the attacks on collective bargaining. we are calling for an end to the job-loss bloodbath, scrapping the increases in VAT and fuel level, a living national minimum wage instead of the insulting poverty figure go R20 an hour and the repeal of laws passed by Parliament to undermine the constitutional right to strike.
We shall if necessary take all these issue through the courts, even once again up as far as the Constitutional Court, but we know that legal victories can only be sustained if they are backed up by mass action in the workplace, the community and the streets to force employers and the state to enforce them.
That is why both SAFTU and the recent Working-Class Summit have agreed to a three-day general strike and mass marches later in the year, which will unite all workers – employed and unemployed, women and men, young and old – with poor communities and civil society organizations in a united and militant protest.