7 Sep 04PCPD Briefing1 BRIEFING TO MEMBERS OF THE PORTFOLIO COMMITTEE OF PARLIAMENT ON DEFENCE WITH REGARD TO MILITARY LABOUR RELATIONS

7 Sep 04PCPD Briefing2 Aim The aim of this briefing is to inform members of the Portfolio Committee of Parliament on Defence (PCPD) about the developments and the current situation of military labour relations in the DOD since the last briefing to the PCPD during August 2002.

7 Sep 04PCPD Briefing3 Scope  Background  Overview of MTUs  Developments in the MBC  Military Arbitration Board  Court Applications  Current Status of Military Service Relations  Challenges facing the DOD

7 Sep 04PCPD Briefing4 Background  Establishment of Military Labour Relations –Hartzenberg –O’Reagan –GRXX

7 Sep 04PCPD Briefing5 Hartzenberg Sec 126B(1-4) of the previous Defence Act, 1957 (Act 44 of 1957) prohibited military trade unions activities. A High Court ruling in 1998 declared this section unconstitutional. The effect of the judgment was suspended pending confirmation thereof in the Constitutional Court

7 Sep 04PCPD Briefing6 Hartzenberg (Cont) In his ruling Judge Hartzenberg stated: “… I am not prepared to say in general that the prohibition of trade unionism is unconstitutional or that the prohibition against public protest is unconstitutional. Sec 126B(1) is unconstitutional on the narrow basis that the respondents have indicated that some of the rights which have been infringed, can through other measures be protected. It has failed to implement those other measures. An important element of Sec 36 is accordingly lacking”.

7 Sep 04PCPD Briefing7 O’Reagan Six months later in May 1999, the Constitutional Court upheld the High Court judgment. Soldiers would henceforth be seen as “workers” for purposes of Sec 23 of the Constitution The Court gave the DOD three months to draft regulations providing for trade unions.

7 Sep 04PCPD Briefing8 O’Reagan (Cont) In the same ruling Judge O’Reagan however said: “It seems to me that the nature of the Defence Force would require a different approach not only in relation to the subject matter appropriate for discussion and consultation with a trade union. It may also require a different approach to the nature of relationship between the union and the Defence Force.”

7 Sep 04PCPD Briefing9 GRXX General Regulations Chapter XX, were consequently promulgated in Aug 99, providing for: The establishment of military trade unions (MTUs) A Military Bargaining Council (MBC) A Military Arbitration Board (MAB) Fair labour practices for soldiers Engagement in collective bargaining and to negotiate on all matters of mutual interest, through the MTUs

7 Sep 04PCPD Briefing10 Overview of MTUs –MTUSA (Not registered) –AFUSA (Not registered) –SANUS (Not registered) –WLAU (Not registered) –SASFU(Registered) –SANDU (Registered and represented in the MBC)

7 Sep 04PCPD Briefing11 Developments in the MBC (Cont)  Suspension of negotiations (2001) –Threat of labour action –Undermining of military discipline –Personal attacks on senior DOD officials

7 Sep 04PCPD Briefing12 Developments in the MBC (Cont)  Mediation –Independent mediator –13 Feb 2002 for three months –No signed “manner & form” document to date

7 Sep 04PCPD Briefing13 Developments in the MBC (Cont)  Legal Action –SANDU interdict on DOD to negotiate –Vd Westhuizen judgment “no duty to bargain” –SANDU appeal

7 Sep 04PCPD Briefing14 Developments in the MBC (Cont)  Channels of Communication with SANDU –Workshops & walkouts –Documents for SANDU’s “notice and comment”

7 Sep 04PCPD Briefing15 Developments in the MBC (Cont)  Resumption of MBC –17 May 2004 –Principal issues NSF Pensions IMEM Transfers to SAPS

7 Sep 04PCPD Briefing16 Military Arbitration Board  Establishment and Composition of the MAB  Activities of the MAB MAB 01/2002 -Fire and rescue service work schedule MAB 02/2002 -Resumption of the MBC MAB 03/2002 -NSF Pension MAB 04/2002 -Staffing

7 Sep 04PCPD Briefing17 Military Arbitration Board (Cont) Activities of the MAB (Cont) MAB 05/ Amendment to General Regulations MAB 06/2002 -Transformation and Restructuring MAB 07/2002 -Implementation of maternity leave benefits

7 Sep 04PCPD Briefing18 Military Arbitration Board (Cont)  Activities of the MAB (Cont) MAB 08/2002 -Conclusion of a mediation agreement MAB 01/2003 -Transformation and Restructuring MAB 02/2003 -Performance Appraisal  Decisions by the MAB  Resolution of disputes before the MAB

7 Sep 04PCPD Briefing19 SANDU Court Applications  VD Westhuizen –Duty to Bargain  Smit Judgement –Duty to bargain –Shortcomings in GRXX –Registrar of MTU  Bertelsmann Judgement –Transformation and Restructuring –No implementation of any matters serving before the MAB

7 Sep 04PCPD Briefing20 Current Status of Military Labour Relations  Resumption of MBC on 17 May 2004 –IMEM –Transfers to the SAPS –Manner and Form –Outstanding Matters –FY2004/05 Wage Demands

7 Sep 04PCPD Briefing21 Challenges Facing the DOD  Effect of Smit and Bertelsmann Judgements –Minister will be hamstrung in the execution of his powers. –Members of the DOD will be seriously disadvantaged by certain of the rulings that barred the department from improving conditions of service eg. those SANDF members who are not unionized are held hostage by the stance taken by the unions.

7 Sep 04PCPD Briefing22 Challenges Facing the DOD (Cont)  Effect of Smit and Bertelsmann Judgments (cont) –The power to manage the DOD in terms of the Constitutional imperatives will be seriously hampered. –The Ministerial and management prerogative of the DOD will be taken away.

7 Sep 04PCPD Briefing23 Important Issues and Policies  NSF pensions –Subject to MAB Proceedings  Transfer of SANDF members to the SAPS –Slow progress, more workshops  Interim Mobility Exit Mechanism (IMEM) –Slow progress, more workshops  2004 Salary Negotiations –MTU response to draft agreement

7 Sep 04PCPD Briefing24 Conclusions  Although relations between the DOD and SANDU appear to be strained, steps are underway to rectify the matter and to place military labour relations on a sound footing.  The MBC resumed its activities on 17 May 2004 and is proceeding to meet the demands of the present situation and challenges associated therewith.

7 Sep 04PCPD Briefing25 Conclusions (Cont)  Once the legal outcomes in the Smit and Bertelsman cases have been analysed with respect to the impact they could have on military discipline and national security, further representations will be made in order to seek guidance from the Joint Standing Committee of Parliament on Defence.

7 Sep 04PCPD Briefing26 Questions, Comments