Industrial Relations Article 1

Introduction

The bourgeoisies in our economy have resolved to frustrate the working class by purging those who
are perceived to be a threat to their stranglehold of the economy.
They feel threatened by the proletarians who need radical transformation at the workplace
appertaining to wages, working conditions, housing allowances and other perks that are genuinely
due to the workers.
However, what these malevolent capitalists need to take into cognizance is that the workforce has
already compromised as the capitalists have relegated them into peasants rather than owners of our
beloved countrys affluence and mineral wealth.
Thus it is pivotal and paramount that they (capitalists) have to satisfy the demands of the working
class appertaining to wages, working conditions, allowances etc.
All the demands mentioned supra are not negotiable as the capitalists are owners of industry and
commerce in this country and Africa in general by default.
They cunningly and heartlessly relegated the proletarians from the social and economic apex to
lower levels of social strata due to the fact that they owned the means of production, a key
component of the free market system.
They are very quick to give the workers vehicle finance, but repress the working class from acquiring
business loans.
However, they have waged red tape and bureaucratic standards against the proletarians for fear
that the working class will end up owning the means of production.

Section 189A of the Labour Relations Act 66 of 1995

The companies are utilizing the aforesaid section to eliminate the employees who
are perceived to be a menace to the interests of free market economy.
In a socialist state this heart-rending reality would never transpire as the masses
would be collective beneficiaries of the wealth of the country.
There would be no purging by one against the other. This sick, lame and counter
revolutionary commercial apparatus would be a thing of the past.
In the case of Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics
versus Chemical, Energy, Paper, Printing, Wood and Allied Workers Union, the
employer employed this section as a modus operandi to eject the working class from
its employ.
However, in accordance with the aforesaid section the employer has to issue a
notice to the workers inviting them to a consultative process to explore avenues that
could be used short of dismissal of the employees.
In most instances the captains of the industry are exploiting this commercial tool to
frustrate and dismiss the true owners of the wealth of this country (the workers).
They (capitalists) exploit this section as an academic exercise to accomplish their
petty and self-centred interests.
They (employers) do not invite the working class to genuinely engage but instead
they embark upon big boss mentality to reverse the gains of the revolution by the
proletarians.
Thus it is very crucial for the working class to capture their own minutes of the
proceedings so that they can prove to the labour tribunals that the employer used the

proceedings as an academic exercise for a predetermined worker-bashing

conclusion.
In the case stated supra the employer came up with economic jargon engineered to
confuse and perplex the workers.
It is critically important for the workers and particularly the shop stewards to be
trained in corporate strategies so that they cannot be tricked by the employers.
This is in line with dialectics made prominent by the socialist father and proponent,
Karl Marx.
The courts should also be impartial, non partisan and just by safeguarding the
interests of vulnerable workers mero motu.
In the light of the fact that according to the employer there were 31% losses in the
operation of the business while the other business of the employer (Rigid Group)
experienced a surge in profits by 31%, there is no evidence of the proposed transfer
of the workers to Rigid without the change to the terms and conditions of
employment.
There is also no engagement of the company revolving around the fact that the
shareholders of the employer unilaterally needed between 7 and 12% profit margin
prior to investment of the purportedly ailing company.
It is paramount that our trade union representatives should leave no stone unturned
in safeguarding the interests of the working class against neoliberals.
There is also uncontested testimony that the company needed R106 million
reductions of costs, and it targeted the wage structure and overtime.
However, there is no counter testimony appertaining to the rationale behind targeting
the blue collar workers.

The white collar workers were untouched and unaffected by these dastard employer
modalities, and this is unfair labour practice of great proportions.
Why the company targeted these defenceless and poor workers and their sections
as there are other sections that could have been re-evaluated like procurement.
It is also on record that the company had a computerised system of Sispro, and a
logical question would be why the working class should be a sacrificial lamb of the
companys computerised deficiencies?
However, sanity dictates that if it is outsourced the company should terminate the
contract with the service provider.
The company should have employed other available computer systems in this
market that is controlled by them by default.
On the flip side of the coin, if Sispro is an in-house computer system those who are
responsible should have been charged with gross negligence, dereliction of duties
and bringing the company into disrepute, in case all these transpired due to their
indecisions and indiscretions.
However, in the alternative incapacity proceedings should have been instituted
against those who are root causes of the employers alleged financial predicaments.
There is also testimony that the company has already implemented a change of shift
system in various subsidiaries of the employer, and that it needed to also implement
the change relating to the workers in question.
The constitutions of the plethora trade unions encourages proletarian
internationalism as well as local worker solidarity.
There should be caucus meetings by the proletarians at the work place so that
inconsistencies perpetrated by the intransigent captains of the industry can be
averted.

There is also testimony by the company that meetings were held with the
employees, and the million dollar question is whether the working class had a
meaningful voice in those proceedings.
The yolk of the matter is that there is a deliberate attempt by the bourgeoisies to
suppress progressive legislation enacted by the government of the day.
They have hired researchers to embark upon novel strategies that could be
embarked upon to weaken the genuine effect of transformative enactments.
In return, it is incumbent upon the workers to counter act these counter revolutionary
acts by the free market system practitioners by embracing tactics elaborated upon
elsewhere in this article.
The proletarians are compelled to attend these consultative meetings with little or no
knowledge on corporate strategies of the capitalists.
There was no dispute that the consultative meetings took place. There was also no
contention whether the principle of audi alteram partem rule was honoured or not.
Thus it is highly magnificent to throw every available contention against the
capitalists so that the judiciary can have no option but to judge in favour of the
working class.
It is also on record that on the 11th June 2010 letters were addressed to individual
employees offering them alternative employment, except five employees.
The aforesaid five employees were paid severance pay equal to one weeks pay of
each year of service with the employer in accordance with section 41(2) of Basic
Conditions of Employment Act 75 of 1997.
There is no contention that the employer waged a witch-hunt against the five
employees who were not offered employment due to perhaps involvement in the
strike.

However, there is also no evidence of pragmatic and authentic alternatives provided

for the aforesaid five employees short of dismissal.
The aforesaid severance pay is too minimal and it should be transformed so that it
can genuinely change the lives of the workers who end up acquiring it.

Judgment of the court a quo

Mokoena AJ then found that, as members of the respondent had acted upon the
expertise and knowledge of the respondent as a trade union and as they would
have been significantly impoverished had they accepted alternative employment
offered by the appellant, these members of respondent had not acted
unreasonably by not accepting alternative employment offers which had been
made to them by the appellant. For this reason, he found that the failure by the
appellant to pay these members severance pay was in violation of s 41 of BCEA.

The appeal

In terms of letters of 11 June 2010, save for the five employees to which reference
has already been made, the balance of the employees were offered alternatives to
retrenchment.

These alternatives were essentially based on the four shift system which abolished
overtime. Respondent contended that the affected employees were justified in
not accepting what was an unreasonable and unfair set of conditions which were
to be imposed upon them by appellant, pursuant to this new offer. Appellant
contends, in terms of s 41(4) of the BCEA, that an employee, who unreasonably
refused to accept the employers offer of alternative employment with that
employer or any other employer, is not entitled to severance pay in terms of s
41(2) of the BCEA and that the refusal in the present dispute was sufficiently
unreasonable to justify the application of s 41(4).
The appeal judge found in favour of the employer by substituting the order of the
court a quo.
It is highly symptomatic that according to the appeal judge the choices of the workers
in section 189 proceedings are limited.
In other words the working class have to accept whatever is thrown at them by the
bourgeoisies, no matter how irrational or farfetched.
The appeal judge has a beggars are not choosers mentality, and this is highly
skewed, inequitable and unjust.
There is no evidence that the trade union or workers lodged a further appeal to the
Supreme Court of Appeal.

Conclusion

There shall be no peace, harmony and tranquillity at the workplace, unless there is
no suppression of socialist advances as well as inequalities redressing modalities.
In addition, there will be no fair, reasonable and equitable labour dispute outcome,
unless the arbiter recognises the fact that the genesis of myriad labour disputes are
the pitfalls of free market system.

Coined and crafted by

Mr Zenani France Sibanyoni (e mail address: zenanisibanyoni@gmail.com
phone: +27 79 709 6167
B Proc degree (University of Limpopo), University of SA HR Certificate &
University of Cape Town Preferential BEE Certificate
Services offered:
1. Drafting of all legal pleadings and documents
2. Drafting of contracts, including but not limited to: sale agreements,
partnership agreements, joint venture agreements, sponsorship
agreements, advertising agreements, service level agreements
3. Drafting of workplace policies, disciplinary policies and procedures
4. Employee Share Ownership Programs
5. Part time Management of Labour Relations Departments
6. Legal Advice