In an article in Politicsweb on 15 September 2023, Tshwane mayor Cilliers Brink discusses the possibility of seeking an exemption from the South African Local Government Bargaining Council (Council) to pay a salary increase.
It seems that the Council, through the responsible commissioner, won’t grant such an exemption because ‘it would seem that the commissioner thought that granting any exemption from a collective pay deal would undermine the very process of collective bargaining’.
The collective bargaining process requires both parties to exhibit good faith in bargaining wages and conditions of employment. It does not mean that the employer is obliged to offer anything or to move up on an offer.
The issue regarding a 0% increase is harsh and unusual, but key is that the employer can justify its position and Brink believes that Tshwane can.
The South African Municipal Workers’ Union (SAMWU) does not have a great reputation for constructive and strategic negotiation. In the private sector it is generally understood that in the cut and thrust of employer-trade union relations, one has to be very strategic about when to strike or when an employer should lock out.
Generally, a position is determined by the relative strength and weakness of the parties. If an employer, for example, is at a point in the year where demand for its product is low and/or is well stocked and is not pressed to make product, the power will lie with the employer. Thus, the union and its members take the risk that the employer will be able to withstand the strike for longer than the union members can afford to lose wages by striking.
Conversely, if an employer is under a lot of pressure to meet customers’ demands or if there’s a greater than usual demand and so production needs to be ramped up, the union is in the more powerful position and its members are less likely to need to stay out for too long as the pressure on the employer will be greater and the need to settle the strike more urgent.
Fairly simple
Obviously, the above scenarios are fairly simple and don’t account for the variety of factors that affect the situation. The principle, however, remains.
The problem with Tshwane is that the norms of wage and benefit bargaining are abnormal. Public servants and the unions that represent them are used to public sector employers caving into some level of demand, however difficult the fiscal position may be. Funds are not sourced from private resources that may fluctuate and affect how much, if any, increase can be given to employees.
In the public sector, the power is seldom with the employer. First, the employer and the trade unions, while in opposition, are also allies politically. So, the employer (rather the political party which makes up the majority in the employer) needs the trade unions for support for political party purposes elsewhere. Second, although negotiations may be tough, ultimately the employer will concede. This is influenced by the first premise, but the ability to concede is eased by the fact that the money that the employer can use does not belong to it, was not earned by it and can be accessed from other budget areas even if it means compromising on other services to citizens.
Eskom in 2023 granted a 7% wage increase for non-managerial bands. This followed an unlawful and violent strike. In addition, a 7% increase in the housing allowance and a once-off gratuity of R10 000 for the first two years of the three-year agreement, were also agreed to.
In a media statement on 15 June 2023, Eskom’s Acting Group Chief Executive, Calib Cassim, said: ‘The collective agreement will go a long way in stabilising our organisation by providing Eskom with sufficient space and time to collaboratively work together to urgently address our most pressing challenges.’
These are desperate words: these are the words of an employer held hostage by a threatening, violent, and destructive hostage-taker who is selling the family silver to obtain the ransom.
Brink makes reference to SAMWU’s launch of ‘mass action’ because Free State municipalities don’t pay on time. Brink notes that the grievances are legitimate; the municipalities withhold pension contributions and are beset with corruption and mismanagement. However, he also notes that their fear of SAMWU contributed to the woes of the municipalities.
Brink refers to these municipalities have had to pay above-inflation salary increases: these municipalities made no effort to seek exemption from the Council from these increases.
Tshwane passed a budget with a 0% salary increase for councillors and employees, and it authorised the City Manager to apply to the Council for exemption from these increases. The Council refused the application.
On review
The City is taking that decision on review to the Labour Court, inter alia, because Tshwane doesn’t know where the R600 million for salary increases will come from. ‘We have already reduced expenditure on contracted services and scrapped all capital projects that cannot be funded by grants from the national government.’
‘If we were to pay the salary increases the unions demand, we will find ourselves in the same position as most municipalities in the Free State. We will either have to cut services to residents or pay employees like we pay Eskom, as and when we can, dependent on cash flow.’
The resultant unlawful strike resulted in the expected violence, arson, destruction of property, and even attempted murder. Brink points out that at its height, only about 20% to 30% of employees actively participated in the strike. However, the real problem became the violence directed at those, including employees and contractors, who refuse to participate in the strike.
It matters not whether a strike is lawful or unlawful: striking does not permit unlawful behaviour. About that there can be no argument. An employer is entitled to take disciplinary action against any striker for such behaviour; this may well include, and in Tswhane has resulted in, dismissal.
Distressingly but not unexpectedly the South African Police Service (SAPS) arrested some strikers early on in the strike for petty crime, but then it advised the city that they were ‘treating the matter as if it were an internal security issue for the municipality to deal with’.
Brink thought first that when a ‘municipal employee and SAMWU member was shot by people who had earlier warned him not to work, I thought that this would be the turning point. I was wrong’. He was wrong again two weeks later after two waste-removal trucks were torched in the space of 48 hours.
The SAPS’s lack of action in no way derogates from the right of Tshwane to lay criminal charges and, simultaneously, take disciplinary action against strikers’ misconduct. It’s important to remember that the two courses of action are distinct and separate. No employer has to wait for the outcome of a criminal case; an employer can charge an employee, hold a hearing and, if warranted, dismiss an employee in a matter of days while the criminal justice system is still getting out of the starting blocks.
No obligation
Even if a court ultimately dismisses a case or finds an accused not guilty, the employer is under no obligation to rehire the person. The only issue is whether the dismissal was procedurally and substantively fair in terms of labour legislation; the criminal outcomes are irrelevant.
Over time political demands for Tshwane not to act against strikers and to reinstate those who had been dismissed and to pay salaries to those who had not been working mounted. ‘Even the ANC, who had supported the budget and the 0% salary increase, jumped on the bandwagon’.
This is where Brink and his colleagues’ backbones have to stiffen. The EFF embarked on its trademark aggression and attempted violence to press these demands. Oh, the heroes of the people!
‘They have demanded a “political solution”’. This would be the kiss of death in light of Tshwane’s rights, nay obligations, not to cave. It’s an exercise of power periodically seen in the private sector, but never in the public sector and it’s way overdue.
It’s not just that Tshwane has the right to try to change the power dynamic, it’s obliged to try to secure the power for the benefit of the people it serves. It would be well for Brink’s political foes to accept that.
[Image: Clayton Majona from Pixabay]
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