Three Cosatu-affiliated public sector unions say the government will have to pay the increases it refused to pay to workers this year, even if it has to be done in stages.
The government has refused to pay an increase provided for in a multiterm wage agreement signed in 2018 after massive cuts to the wage bill were pencilled into the budget in February in a bid to curb the ballooning budget deficit.
The state has emphatically said it does not have the money to implement the 2020 agreement, as it would cost the government R37.8bn, and the government could also not raise the debt to pay for it.
Reneging on the agreement has put the state on a warpath with unions, who are fighting a battle in court to ensure that the agreement is implemented.
While the Public Servants Association, among other unions, brought the initial court challenge, Cosatu unions have now joined the case after the government filed a counterapplication to ask the court to declare it unlawful to pay out the final leg of the agreement as it would be unconstitutional.
The government’s counterapplication has pushed aside arbitration proceedings brought by the Cosatu public sector unions as the constitutionality of the agreement is now being questioned.
In papers filed in the labour court on Monday, the SA Democratic Teachers Union (Sadtu), the Democratic Nursing Association of SA (Denosa) and the Police and Prisons Civil Rights Movement (Popcru) argue that a just and equitable remedy for the current dispute could be to make staggered payments.
The unions say the court has the discretion to make a just and equitable order, which includes ensuring that the government complies with the agreement, “even if it does so in a staggered or phased manner”.
In the answering affidavit, Mompati Galorale, chief negotiator for Sadtu on behalf of the unions, says the government went into the agreement with open eyes in 2018, and the counterapplication was a strategy to frustrate and avoid arbitration proceedings.
He says that in challenging the constitutionality of the agreement the government shows it “has breached its constitutional obligations in a shocking manner and wishes the court to countenance its conduct”.
“It has failed to lead by example in respecting its constitutional obligations. It does not come to court with clean hands in its effort to assert the constitution.”
He emphasised that trade unions had to rely on good faith on the part of the government during collective bargaining, and that the current application by the state was “not in good faith”.
He said the apparent lack of good faith on the part of the government, as well as any deliberate breaches of its constitutional and statutory duties could not justify letting the government “walk away from its freely undertaken contractual obligations under the collective agreement”.
The government, in explaining its financial constraints, has indicated that the situation has been compounded by economic devastation caused by the lockdown imposed to curb the spread of the Covid-19 pandemic, as well as the downgrade to junk status by Moody’s Investors Service in March this year.
“It cannot be permitted to opportunistically take advantage of the Covid-19 pandemic to avoid legal obligations freely undertaken, in circumstances where permitting it to do so would strike at the heart of collective bargaining and industrial peace under the constitution and the Labour Relations Act and decidedly undermine these,” Galorale said.
He said even if Covid-19 had affected the government’s ability to conform to the disputed terms in the agreement, it would at best justify an adjustment to the terms, such as the time period within which the performance must be rendered.
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