Bargaining Council hangs in the balance

SHARE   |   Wednesday, 09 March 2016   |   By Staff Writer
Motshwarakgole and Motsamai Motshwarakgole and Motsamai

The fate of the Public Sector Bargaining Council (PSBC) is to be sealed in a judgment of Industrial court judge President Justice Tebogo Maruping next week, when he rules over an urgent application to dismantle it by BOPEU. At the hearing of the case on Monday Justice Maruping together with South African Advocate Alec Freund for BOFEPUSU expressed concern about the ambiguity in the Constitution of the bargaining forum. Of particular concern to the judge was the requirement of "one third threshold" instead of a definite figure and lack of clarity on the definition of a "trade union party" coupled with the provision for an "acting jointly arrangement" for admission to PSBC.  

BOPEU has filed an urgent application asking court to declare that the admission and continued presence of BOFEPUSU at the public sector bargaining council (PSBC) is unlawful. The application was filed after the union withdrew from the joint arrangement with four other public sector unions, through which they had been admitted to the bargaining council. It was only when the general secretary of PSBC was ordered to verify if the trade union party satisfy the threshold, following the withdrawal of BOPEU, that the latter insisted that they were still part of the PSBC despite their decision. Other members of the council disagreed.

BOPEU argues that the federation does not satisfy the requirements for admission because it is not registered and recognised as a trade union in the public service, and that its members are not natural persons in the public service but rather corporate entities (trade unions). In view of this, the federation does not meet the minimum threshold, the union argued. Advocate Freund told court that it is wrong to suggest that the federation was ever admitted to the bargaining council. "BOFEPUSU the federation did not as a body apply for admission to the bargaining council, instead the five public sector unions jointly applied under the label BOFEPUSU.

PSBC admitted the five constituent trade unions as a unit (trade union party) under the joint application not the federation. The acting jointly arrangement was admitted not separate trade unions," he said, further arguing that therefore the verification process to determine threshold cannot be carried out on individual unions. Freund said BOPEU was never admitted as an individual trade union to the bargaining council, as they never applied as such, and therefore lost any rights to sit in the council when they withdrew from the acting jointly arrangement under which they sat at PSBC. He said none of the unions’ rights have been breached by excluding them from the bargaining process and further that BOPEU is not claiming the same in its court papers.

To demonstrate this, he said, have since applied for admission to PSBC under Botlhe Bargaining forum, which is a clear indication that they are aware that they are currently not members. He said the PSBC would have been stillborn from the onset if the crafters of its constitution, who included all recognised trade unions and government representatives, insisted that only those who meet the one third threshold should be admitted. Upon this realisation a provision was made for unions to pool their numbers together and form an "acting jointly arrangement" for the purpose of satisfying the threshold and for all public servants to be represented at the bargaining forum regardless of the size of their union. "This makes life easier for the employer as he now deals with only one trade union party as opposed to fragmented members who may bring numerous offers," he said. 

BOPEU lawyer Joseph Akoonyatse stuck to his guns and insisted that his client is a member of the bargaining council. It emerged during the arguments that BOPEU's major contention emanates from the fact that other trade unions that represent fewer members (e.g. 8 000) have a seat at the bargaining council, while they are excluded. Justice Maruping said such realisation has also given him sleepless nights, to which Freund said the court has no business in making the case for BOPEU who are in the current position as a consequence of their decision to quit the acting jointly arrangement. 

Justice Maruping amplified the gravity of the matter when he revealed that he is having "sleepless nights" and is "troubled" by the possibility of denying over 26 000 public servants the right to be represented at bargaining table if he discharges the rule nisi and rejects BOPEU application. On the other hand, the effect of Justice Maruping confirming the temporary order sought by BOPEU would be to dismantle the bargaining council and stop the 2016/17 salary negotiations. Except for NALCGPWU (former Manual Workers Union) all other public sector unions cannot be admitted to PSBC as they do not meet the one third threshold on their own.