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COURT JUDGMENT NULLIFIES COLLECTIVE BARGAINING

10/12/2017 23:11:00 By Vusi Sibisi

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THE courts last week delivered what can only be termed a coup de grace on the collective bargaining and industrial relations framework and by so doing made the continued existence of trade unions or organised labour purely academic and symbolic.

But maybe long before the courts delivered the fatal blow trade unions or organised labour had already perished probably by their own swords. It could well be that unions perished by suffocating from their own heave in the aftermath of their unsurpassed successes in the last half of the 1990s decade. Hence when the industrial relations framework was transfigured by the courts in a landmark judgment last week there was hardly a whimper from workers through their representative formations.

Catalytic to the transfiguration of the industrial relations framework was the judgment by the Industrial Court of Appeal - delivered by Justice Cyril Maphanga sitting with Justices John Magagula and Doris Tshabalala - in a case in which Nedbank Swaziland had appealed the judgment of the Industrial Court interdicting the banking institution from engaging temporary workers while its substantive employees, who are members of the Swaziland Union for Financial and Allied Workers (SUFIAW), were on a protected strike. Essentially the Industrial Court of Appeal ruled that it was Nedbank’s prerogative to engage temporary replacement staff for the duration of the strike action by its employees.

To what degree Justice Maphanga and company appreciate the effects of their judgment on collective bargaining and the existing industrial relations legal framework is a matter for conjecture. But the fact is this judgment has effectively dismantled the principle of collective bargaining. As I see it, the judgment can be likened to a tsunami to the concept of organised labour and collective bargaining. The effect of the judgment is fundamental because it has irrevocably altered, to the point of irrelevancy, the industrial relations playing field in the kingdom. This position derives currency from the fact that the only potent weapon in the armoury of and at the disposal of workers when negotiating for better and improved working conditions with employers has always been strike action. Irrespective, legislators had, in their wisdom, still provided a panacea for the employer in the form of no work no pay principle for workers participating in a protected or legal strike perhaps to get the parties to deal expeditiously with the issues at table.
Thus both parties had loaded guns in the event of disagreement or failure to compromise.
But in the wake of the judgment apropos the case between Nedbank and SUFIAW, a strike is now like a gun without ammunition. This means workers have been robbed their only effective bargaining tool, withdrawal of their labour, in order to force the hand of the employer. This has installed the employer as superior on the bargaining table and virtually making irrelevant the industrial relations legislative framework. In essence what this means is that employers, not workers, can prolong a strike action for lengthy periods now that they are free to engage ‘temporary’ labour while it is not in the best pecuniary interests of striking workers to be away from their duty stations for lengthy periods because of the no work no pay principle.
Paradoxically, the evolution of industrial relations was driven by the need to reform the master-servant relations between employer and employee. In fact the industrial relations framework was deliberately biased in favour of workers, both in law and in practice, as a means of correcting the historical injustices prevailing before then in which workers were underdogs and on the receiving end of an unjust order. Therefore, it takes a labour practitioner to better appreciate matters of industrial relations given their historical perspective, hence it is a specialized area of jurisprudence.
Thus the Industrial Court distinctly differs from other courts since it is a court of equity.
As I see it, this is comprehensively illustrated in the section dealing with the purpose and objectives of the Industrial Relations Act 2000 as amended at Section 4. But one that stands out above all else is Section 4 (f), which states; “Ensure adherence to international labour standards.” There is no need to explain this further because it is common cause that if and when this is contradicted, as it apparently has been with the open licence issued by the Industrial Court of Appeal for employers to engage temporary labour in times of strikes, this often leads to a country being isolated and censured by the International Labour Organization (ILO).
Given these peculiarities the structures and processes of dealing with conflicts within the ambit of labour relations is best served by experts in the field and not necessarily by general law practitioners. Similarly those charged with presiding over such matters must be versed in the field of industrial or labour relations because any departure could fatally fracture not just the processes but as well as make the environment hostile in direct contravention of the spirit of the Industrial Relations Act.
In the circumstances, the sooner the Industrial Court and its processes is separated from the rest of the courts the fewer instances the country could find itself at fault with the ILO and other international organs. Similarly, judges of the Industrial Court and its appellate division, besides possessing requisite skills and experience, must also have an intimate, comprehensive understanding and appreciation of the foundation upon which industrial relations was built that in turn makes the Industrial Court a court of equity it ought to be.