Opinionista Ian Ollis 16 July 2013

Trouble in the NTM: Everything that’s still wrong with labour relations

The National Transport Movement may not yet have seen the same kind of violent meltdown that the mining industry experienced at Marikana. But there’s no assurance that this won’t change.

The dispute between the National Transport Movement (NTM) and the Passenger Rail Agency of SA (PRASA) are shining examples of what is wrong with South Africa’s labour relations environment. While there is no connection between AMCU (The Association of Mineworkers and Construction Union) and the NTM, the two movements seem to have been formed in a similar fashion: workers unhappy with the relevant Cosatu-affiliated union, in this case SATAWU, broke away to form a new union which workers believed would better represent their rights. In the same way that workers in the mining industry lost faith in the National Union of Mineworkers and joined AMCU, so workers who lost faith in SATAWU joined the NTM. There are two main differences between the two scenarios, which I am comparing: There has been no violence on the scale of the meltdown at Marikana in the transport sector and NTM has not been recognised at a single employer. However, both of these situations may change in the near future.

The reason for the lack of formal recognition of NTM by employers, relates to the problems with our labour laws and the labour relations environment in SA. I have confirmation from the Labour Ministry that the National Transport Movement is formally registered with the Department of Labour. All unions who have got to this stage, have a final hurdle to cross to get recognition and rights at the door of an employer. This hurdle involves meeting a membership threshold expressed as a percentage of total eligible employees at a particular employer. Due to section 18 of the Labour Relations Act, thresholds are set with each employer through a process via the Bargaining Council involving a contract between the employer and the Unions concerned. Only Unions which have more members than this agreed threshold qualify for recognition. Recognition at an employer grants the relevant union access to the property and crucially, an arrangement for deduction of union fees by employers and payment of these fees to the relevant union, and therein lies the rub: No threshold, no recognition, and no recognition, no deduction of membership dues or access to the employer’s property. The setting of the threshold is therefore crucial as smaller unions are easily locked out if the threshold is set very high and they effectively go bankrupt. It’s somewhat cynically referred to as “majoritarianism”.

This issue was tested recently. At BHP Billiton, a case was recently heard in the labour court as BECSA, a Billiton subsidiary, and the National Union of Mineworkers (NUM) unilaterally raised the threshold for union recognition at their company  from 15% to 30% by negotiating contractual arrangements, effectively locking out the minority unions who don’t have 30% of the workforce as members. The case was heard by Judge Anton Steenkamp, who granted interim relief to UASA and AMCU, the minority unions in this case. Judge Steenkamp further ruled that in terms of the law, the CCMA must hear the actual substantive case on whether the new contract could go ahead. The CCMA has yet to rule, but the case has raised questions about the fairness of a labour regime, which can allow majoritarianism to take over.

At Lonmin, it appears that NUM tried similarly to stop AMCU being recognised. Now the tables have turned and AMCU is the majority union, it appears that AMCU is wanting to extract revenge by similarly raising the threshold to lock out NUM altogether and destroy its base in the area.

In the Transport sphere, NTM finds itself up against this exact problem. It appears that SAA, PRASA and related government entities, are not as keen to recognise a new union as they have made out. The NTM has applied for recognition at SAA and at Prasa and been turned down. At PRASA, the shortfall against the actual threshold was so small at the time, that I understand the CCMA actually recommended that PRASA recognise the new union in order to prevent a deterioration of relations. Prasa argued that the NTM went out on an illegal strike and stopped the process leading to a stale mate. The threshold is just over 1,700 members, which NTM claimed to have exceeded at the time. Since then, as I indicated in my budget speech, PRASA has fired over 1,000 staff, who were members of the NTM. Some have been fired for allegedly partaking in an illegal strike (with unsubstantiated allegations of train burning), while NTM disputes that the strike was illegal. Some have now been fired for being whistle blowers on corruption within PRASA. What is clear is that if you fire enough workers, of course, the thresholds will never be reached.  (Consider for a moment that virtually no members of the other unions have been fired or suspended during this period).

A further problem is bedevilling good labour relations in the transport sector. The system of bargaining councils, regulations and laws allows union membership fees to be collected for staff who are not members of any union! Invoices are sent for “levies in lieu of membership fees”. This seems to me to be legalised theft. I have seen letters of resignation from NTM members who wish to resign from SATAWU and join NTM and stop their deductions going to SATAWU. I have also seen payslips months later showing deductions from their salaries being paid to SATAWU for membership fees. These same NTM members are now handing cash membership dues to the NTM, which they wish to belong to, on top of their membership dues, deducted by PRASA. They are effectively forced to pay monthly union membership fees twice for daring to resign from SATAWU. This is all supposedly allowed under our current labour relations regime.

My colleague in Parliament, Sej Motau MP, is arguing for both of these problems to be addressed through amendments to the Labour Relations Act, but Cosatu is making this impossibly difficult to achieve. Fedusa, seeing the dangerous ground ahead, has called for the scrapping of Section 18 of the Labour Relations Act, which enables thresholds manipulation. While thresholds continue to be manipulated by state-owned enterprises, private corporations and Cosatu-affiliated unions, and while bargaining councils, labour laws and employers make it so incredibly difficult for workers to resign from one union and join another, we are going to see more strikes and, God forbid, more violence.

Meanwhile, the National Transport Movement claims to now have 6,000 members and still has not been recognised by Prasa or SAA. DM

Ian Ollis MP is the DA Transport spokesperson and can be found on twitter @ianollis

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