Picture: THINKSTOCK
Picture: THINKSTOCK

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THE Transport and Allied Workers Union of SA (Tawusa) on Tuesday asked the Constitutional Court to interpret a sectoral collective bargaining agreement in a way that would still allow workers to bargain and strike over their salaries at plant level.

Nearly 20 years after the Labour Relations Act established sectoral collective bargaining, and with the fracturing of the Congress of South African Trade Unions’s (Cosatu’s) dominance, a debate is gaining momentum about whether the sectoral system is too rigid, and whether it still serves the best interests of all workers, especially in sectors where employees have differing levels of skill. Tawusa’s case comes as the Free Market Foundation is also challenging aspects of the Labour Relations Act that deal with collective bargaining agreements.

On Monday, the Free Market Foundation went to the High Court in Pretoria to challenge the constitutionality of a section in the Labour Relations Act, which it said allowed a bargaining council to bind employers who were not party to the agreement.

At the Constitutional Court yesterday, counsel for Unitrans Fuel and Chemical, Andrew Redding SC, described the "philosophical choice" made in 1996: if a union had 50% plus one of the representation across a sector, it negotiated on behalf of all the workers in the sector at a collective bargaining council; all the workers, even if not unionised, would benefit.

The "sacrifice was to the flexibility" of negotiating at plant level. But the advantage was to avoid "an enormous disparity" across the industry, Mr Redding said.

In 2010, members of Tawusa, a small non-Cosatu-aligned union in the transport sector, went on strike. Their two demands related to Unitrans’s practice of paying different salaries to workers who did the same job.

There was also a specific dispute over the salaries of seven employees who had worked on a lucrative contract with Shell. When the Shell contract was lost, to avoid retrenchment most of the Shell workers had agreed to a lower salary, but the seven had refused.

Unitrans said while the workers talked of "wage parity", their real demand was for a salary increase — something clearly reserved for the National Bargaining Council for the Road Freight Industry. The Labour Court agreed and declared the strike unprotected.

During the course of the strike Unitrans agreed to increase the salaries of the Shell seven but would not budge on the other demand. The workers, relying on an earlier judgment of the Labour Appeal Court, insisted that wage parity was something over which they could legitimately strike. Within 24 hours of conceding on the salaries for the seven, Unitrans dismissed 94 employees.

In the Constitutional Court their counsel, Francois Wilke, said the sectoral collective bargaining process effectively denied Unitrans’s hazardous substance drivers the ability to negotiate their salaries, returning them to the law of "master and servant".

He said the bargaining council set industry-wide salary levels, but Unitrans paid higher salaries to the hazardous substance drivers because of their special skill. These drivers’ "real salaries" could never be negotiated at central level at the bargaining council, he said.

Once the company had "unilaterally" gone higher than the salaries in the sector agreement, he said, this amounted to a unilateral change to the terms and conditions of employment — something over which workers were allowed to strike; and giving them the elbow room to negotiate salaries.

But Mr Redding said the union had tried to disguise what was "transparently" an attempt to strike for a wage increase as a wage parity demand. "Such an approach was simply impermissable," he said.