Two of the biggest court actions involving a trade union and the government began on Monday when papers were filed at the Labour Court in Johannesburg.
The trade union Solidarity has asked in two separate cases that the State’s controversial restructuring resolution, Resolution 7/2002, as well as the agency agreement within the civil service, be declared invalid.
The restructuring process involves approximately one million workers, and if Solidarity succeeds with its application to have the agency agreement invalidated an amount in the region of R270-million will have to be returned to workers.
Resolution 7/2002 first aroused controversy in December last year after media reports that employees in the Department of Public Works had been recalled from leave to reapply for their existing positions.
Solidarity claims that some employees in the Department were telephoned at home at two o’ clock in the morning and informed of interviews scheduled for the following day, during which it was to be determined whether they were redundant. The so-called ”FIFO” (first in first out) principle caused particular resentment among workers.
Solidarity is acting, among others, for three police members who have produced statements detailing how they had been disadvantaged by the process.
”Complaints received by Solidarity range from a chaplain who had been transferred to a post as financial clerk, and numerous specialists who were posted to operational service. Solidarity is also aware of at least one police member who had committed suicide after receiving notice of his transfer, and another member who is currently in hospital after a failed suicide attempt,” Solidarity said in a statement.
Resolution 7/2002 is furthermore applicable to all public service officials, and is still to be enforced in all departments. In terms of the resolution the process must be completed by June this year, although allowance has been made for a deferment period of three months.
Solidarity said it objects to the fact that Resolution 7/2002 does not improve service delivery in the civil service. The trade union is particularly opposed to the compulsory use of affirmative action in the restructuring process. Race is used as the criterion by which a person can be transferred or — if found redundant — even be dismissed.
”We do not believe that the Law on Equal Employment or the South African Constitution allows for the dismissal of workers on the basis of their race.
”Our legal counsel advises that the resolution overreaches in terms of the application of affirmative action. We will argue that the resolution unfairly discriminates against employees on the basis of their race and to the detriment of an efficient civil service.
”In a recent case between Solidarity and the Police Service, judgement was in favour of Solidarity when the judge found that the Police Service had placed too much emphasis on representation”, said Dirk Hermann, Solidarity representative.
Solidarity also objects to a clause contained in the resolution stipulating that a person who refuses to accept a transfer may be dismissed. According to Hermann, Solidarity is positive about the restructuring process in the civil service.
”Everything possible should be done to improve service delivery. Solidarity also accepts the reality that affirmative action needs to be applied in the civil service. There is, however, a statutory framework within which such a process should take place. If it happens outside this framework it negates one of the pillars of our democracy, i.e. statutory government.
”Our advice is that this resolution is not compatible with the labour laws and the Constitution of South Africa, and it is our duty to test it. Doing so protects the Constitution and will help to keep democracy alive in South Africa.”
In the second action Solidarity argues that the agency agreement in the civil service does not comply with the necessary legal requirements. In terms if the agreement the government can deduct 1% from the salaries of non-trade union members and remit this income to trade unions. Solidarity maintains that the deduction of agency fees from employees’ salaries by the state, as employer, is illegal, since the agreement does not comply with the requirements of the Labour Relations Law.
An agency agreement is an encroachment on the freedom of choice. The Law on Labour Relations gives clear guidelines according to which such an agreement can be effected. If all the guidelines are not followed the agreement is illegal.
”We are not disputing the principle of agency agreements,” Hermann said.
”But we wish to make sure that it strictly follows the guidelines of the Labour Relations Law.”
Solidarity is acting on behalf of members who are currently paying agency
fees.
The government now has ten days in which to decide whether or not to
oppose Solidarity’s applications. – I-Net Bridge