MEIBC: SEIFSA’s take on NEASA’s petition to the constitutional court demands some clarity.

SEIFSA’s TAKE ON NEASA’s PETITION
TO THE CONSTITUTIONAL COURT
DEMANDS SOME CLARITY

by Jaco Swart

The Steel and Engineering Industries Federation of South Africa (Seifsa) recently published a newsletter in which a number of disparaging, misinformed and even blatantly false allegations were made.

The newsletter claims that the “main agreement has stood up to legal scrutiny” three times, as it has survived challenges at the Labour Court and the Labour Appeal Court. This illustrates a clear misconception as to what the current legal challenge is about.
 
In August 2022 NEASA approached the Labour Court on an urgent basis, to obtain an interim interdict to prevent the MEIBC from requesting the Minister of Employment and Labour from extending the agreement, and/or preventing the Minister from extending the agreement, until such time as the events that led up to the extension request have been scrutinized and found to have been lawful and valid, or not.  
 
The Labour Court dismissed the interim interdict (Part A of the application), which is not the subject matter of the petition for leave to appeal to the Constitutional Court, but then also proceeded to dismiss the review (Part B of the application) which was simply the background to support the application for an interim interdict. Part B, the review, was never before the Court, was not ripe for hearing and was not argued by any party before the Court. 

The dismissal of the review by the Labour Court, in our view, effectively deprived NEASA and its members from accessing the Court by way of a review application to properly ventilate Part B before a court. It is this action by the Labour Court that NEASA wishes to appeal.
 
It can therefore not be said that the main agreement has “stood up to legal scrutiny”, as it has not been lawfully or legally scrutinized at all. 
 
Seifsa goes on to claim that the Seifsa affiliates represent by far the greater majority of employers in the sector.  Unfortunately, simply saying it does not make it true. The Seifsa affiliates represent approximately a thousand employers in the sector. This amounts to 10% of all the employers in the sector – hardly a majority. Incidentally, NEASA represents almost double the number of employers in comparison to Seifsa. 
 
In its newsletter, Seifsa advises that NEASA should aspire to the lofty ideals of compromise and “a level playing field for all”. Although these are indeed worthy concepts, it should be remembered that compromise is a two-way street where it cannot be expected from one party (NEASA in this case) to simply fall in line and voluntarily subject its members to draconian conditions of employment. 

Further to this, the ideal of a level playing field, under the current dispensation is, unfortunately, unrealistically idealistic. Collective bargaining currently only favours big business and creates a level playing field for them, whilst creating a very uneven playing field for the downstream and SMMEs that are subjected to the same conditions of employment, but simply do not have the means or ability to compete with big business. It is therefore an effective mechanism for big business to eliminate any potential competition.  
 
The whole collective bargaining scheme was, as pointed out by Seifsa, agreed upon by the social partners at the National Economic Development and Labour Council (NEDLAC), including ‘representatives of business’. However, the representative of business on NEDLAC is Business Unity South Africa (BUSA), which, unsurprisingly, takes its instructions from big business. 
 
It is alluded to by Seifsa that NEASA is selfish, self-serving and power driven. If fighting for the rights and survival of employers make NEASA guilty of these transgressions, so be it. However, what can be more self-serving than creating a dispensation which benefits only yourself and the rest be damned?