"Don't look for conspiracy if stupidity is a good enough explanation", David Munroe.
Dear Industry Employer
In our previous newsletter on Monday, 5 January 2015, we highlighted the main interventions which have an immediate impact on the Industry. In this newsletter I will deal more comprehensively with the implications of these interventions and actions currently taken by NEASA.
THE 2011/14 INDUSTRY MAIN AGREEMENT AND THE DECEMBER 2014 LABOUR COURT JUDGEMENT
As previously communicated, the Labour Court, on 17 December 2014, set aside the 2011/14 extension of the Metal Industry Main Agreement to non-parties by the Minister of Labour. The effect of this is that the MEIBC will no longer be able to enforce any of the provisions of this agreement (2011/14) on non-parties.
Although it may well be possible for employers to recoup increased wages incurred over the 2011/14 period from the employees, NEASA does not encourage this course of action as it may prejudice the employment relationship. However, in some cases, operational/financial needs may necessitate this drastic action. The fact remains, this was an illegal agreement.
A further potential course of action, on a collective basis, will be communicated shortly.
THE EXTENSION OF THE 2014/17 AGREEMENT TO NON-PARTIES BY THE MINISTER
WHY NEASA WILL NOT ACCEPT IT
Right up-front we want to make the following very clear:-
we were deliberately excluded from the negotiations leading up to this agreement (which were surreptitiously conducted by a ministerial team, Seifsa and NUMSA) and will therefore NEVER accept its terms; and
Seifsa, representing only 15 percent of employers in the Metal Industry, have negotiated this deal, which they 'reluctantly agreed to' (they even admitted it – how deplorable?), which they admit 'will lead to massive job losses' and which they have illegally and unconstitutionally managed to have extended to non-parties – the remaining 85 percent of the Industry. WHAT A CHEEK!
SO WHAT DOES NEASA DO NOW? …
We will review the decision by the Minister of Labour to extend the Industry hostile and illegally obtained agreement. The first step in this regard is to lodge an urgent appeal, in the Labour Appeal Court, against the Labour Court's decision to allow the MEIBC to even request the Minister of Labour to extend this agreement. Leave to appeal has already been obtained and proceedings are currently underway.
… AND WHAT DO YOU DO IN THE MEANTIME?
CONSIDER NEASA'S APPROACH IN THIS REGARD
we do not want to deny any employee his or her appropriate wage;
where circumstances justify it, we are in favour of wages being paid and increases being granted which are even higher than the prescribed minimum; however,
we are also of the view that the only sustainable wage or increase is one that can be reconciled to a business' own unique circumstances/affordability.
CONSIDER THE RISKS
The fact that NEASA will challenge the newly extended main agreement, is based on our judgement that we have very good prospects of success. Although we will attempt to speed up proceedings, it’s not solely in our hands. It took us three years to have the 2011/14 extension by the Minister set aside by the Labour Court. We hope that the upcoming legal challenges will not take that long, but whatever the scenario, it leaves you, the employer, with uncertainties; and there are no guarantees.
THE BASIS OF NEASA'S UPCOMING LEGAL CHALLENGE
Without boring you with the detail, NEASA's upcoming legal challenge will be based on, amongst others and very broadly, the following grounds:-
there is currently no validly elected Council;
the 2014 negotiations therefore did not take place in the Bargaining Council; and
the request to the Minister to extend was invalid – in various respects.
Then, just to put the cherry on this spectacular mess, the Minister also extended the period of operation of the 2011/2014 agreement – which the Labour Court declared invalid – to 30 June 2017. It is unclear how the Minister proposes that two manifestly different agreements – 2011/14 and 2014/17 – are to operate concurrently. It makes no sense at all.
But here's the icing on the cake
Just days before the Minister's extension, NUMSA, unconditionally, and on a national basis, capitulated to NEASA's demands, ie. a 7 percent wage increase, a 50 percent reduction for new employees in respect of the lowest three grades, a new exemptions policy and the payment of Leave Enhancement Pay only in respect of hours actually worked.
Consider all of the above …
… and then, taking into consideration your operational needs, decide what you want to do.
Whatever you do …
… we will support you.
Should you have any queries regarding the above, NEASA members may contact our hotline.