LUCIO TRENTINI: Neasa’s top court move over metals industry pact resembles Stalingrad strategy

The metal industry’s three-year main agreement on terms and conditions of employment, signed in 2021, will go down in history as having created a number of firsts.

It is the first time in 30 years that increases have been awarded on rand and cent (as opposed to on actuals), the first time in more than a decade that the main agreement has been gazetted and extended to all employers and employees in the industry, and the first time the main agreement has stood up to legal scrutiny.

The application of the National Employers Association of SA (Neasa) to the labour court to overturn the agreement was struck down with costs, and leave to appeal suffered the same fate. Then the labour appeal court arrived at the same conclusion, albeit without awarding costs. Neasa has now taken a decision to petition the Constitutional Court for leave to appeal against the labour appeal court judgment and has not minced its words, boldly stating that “this fight is far from over and employers should not lose hope. All avenues have not yet been exhausted”.

Indeed, Neasa has not yet exhausted all legal avenues in desperately seeking the redress it firmly, but mistakenly, believes it is owed. One wonders if it is intentional or just coincidental, but it is beginning to look very much like a so-called Stalingrad strategy, deployed to delay or even avoid any possibility of finding common cause with the exhaustive list of respondents cited in Neasa’s papers.

Section 34 of the constitution guarantees everyone’s right to have any matter that can be resolved by the application of the law decided before the courts. Companies affiliated to the Steel & Engineering Industries Federation of Southern Africa (Seifsa) represent the majority of employers and employees in the sector.

Given that our courts have shown themselves reluctant to deny such repeated access to the courts the question becomes: given who we are, who we represent, what we do and the current state of our beleaguered sector, is this negative and obstructive process the best way for collective bargaining partners and adversaries to settle their differences?

Reasonable mechanism

I think not. The strategic logic for developing a better collective bargaining framework should have as its starting point ideals that are aligned with a commitment to decent and equitable labour practices and a fair economy that levels the playing field for all. Of course, these ideals require compromise and deal making, which are hardly evident in courts of law.

If an agreement is negotiated and concluded by bargaining agents who represent and employ the majority of employees falling within the council’s coverage, the extension of a bargaining council agreement is seen as a reasonable and necessary mechanism of sectoral collective bargaining. This is the legislative model, which the social partners agreed on in 1995 and parliament duly enacted.

Section 32 of the Labour Relations Act expressly empowers — indeed, requires — bargaining councils and the minister of employment & labour to follow a specific procedure for extending bargaining council agreements. This procedure was agreed upon in 1995 by the parties to the National Economic Development & Labour Council, including the representatives of business. Twenty-eight years on, the system stands accused of being unfair. In reality, arguments supportive of this view are at best inconclusive, and at worst speculative.

Preventing or delaying extension of the main agreement may well delay the implementation of the main agreement for non-parties, but the indirect effects are no less important. For the affected workers and their unemployed family members this would almost certainly translate into greater distress. It is hard to reconcile this with the goal of social justice.

As we begin applying our minds to the tactics and strategy employers aligned to Seifsa will be deploying in the next round of industry wage negotiations in 2024, we realise that as a sector we are, and probably will still be next year, in the midst of a number of crises, ranging from the lingering effects of the Covid-19 global pandemic to various economic (energy, logistics, supply chain, inflation, interest rates) and political uncertainties. We are also reminded that we will not be negotiating in a vacuum. The last thing industry needs is the prospect of another full-blown strike.

Perilous situation

The current main agreement is undoubtedly a paradigm shift and illustrates how like-minded negotiating partners can work together in pursuit of a greater good. Compromise was clearly evident on both sides of the table; trust was deepened and relationships were forged. In the course of negotiations participants came to the conclusion that change was necessary, that we needed to move out of our respective comfort zones and conclude an agreement that not only addressed the concerns of all participating constituencies but, more importantly, laid the foundation for what to expect in 2024 — stability, industrial peace and certainty.

Should Neasa win in the Constitutional Court it will leave the industry in a perilous situation. The unions will retreat to their comfort zones, and Seifsa will probably again find itself the main protagonist, representing the largest chunk of employers and employees in the sector. And when negotiations unravel all will bear the consequences and endure the destruction of value, across all organisations irrespective of affiliation.

Courts are adversarial in nature, which is hardly conducive to building relationships. Courts have a vital role to play, and if it weren’t for our robust judicial system who knows where SA would be now. But in the collective bargaining space good agreements are founded on sound relationships, not selfish, self-serving power-driven dynamics.

Seifsa, representing 18 independent employer organisations, the Plastic Convertors Association of SA, the Consolidated Employers Organisation and the five biggest trade unions in the industry will collectively be serving opposing papers to Neasa’s petition for leave to appeal.

One hopes that for the greater good of the sector and in defence of a fair, just and equitable dispensation the result is favourable — if not, we all stand to lose far more than we bargained for.

• Trentini is CEO of the Steel Engineering Industries Federation of SA.