Military Trade Unions: briefing by Department of Defence and Minister

Defence

28 August 2001
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Meeting report

JOINT STANDING COMMITTEE ON DEFENCE

JOINT STANDING COMMITTEE ON DEFENCE
29 August 2001
MILITARY TRADE UNIONS: BRIEFING BY DEPARTMENT OF DEFENCE AND MINISTER

Documents Handed Out:
Labour Relations for Members of the SANDF: briefing outline (see Appendix)

Chairperson: Mr J.N. Mashimbye

SUMMARY
The meeting aimed at reviewing the relationship between the Department of Defence and the recognised military trade union. There were concerns voiced by both the Military Bargaining Council and the Minister. The Minister will prepare a report on the issue. The Committee will invite the recognised military trade unions to brief them as well.

MINUTES
Legal Framework
Colonel Du Plessis who is a member of the Military Bargaining Council and a negotiator from the Department of Defence, gave the legal background leading to the issues at hand. He referred to the case of South African Defence Union v Minister of Defence 1999(4) SA 469. In this case, the constitutionality and validity of s126B of the Defence Act of 1957 was challenged in so far as it relates to the right of the applicants to form and join trade unions, to participate in the activities and programmes of trade unions and to strike. It was held that the scope of the prohibition under this provision as captured by the definition of "acts of protest" suggested that the members of the Defence Force are not entitled to form, air and hear opinions on matters of public interest and concern. This infringed on the freedom of expression as provided for by s36 of the Constitution. This could not be regarded as reasonable and justifiable limitations aiming at striking the balance between ensuring that the members of the Defence Force act in a manner encouraging trust and confidence in the discharge of their duties while enjoying their right to freedom of expression.

It was held that the challenged provisions would then remain as prohibition against strike action and incitement of strike action which were not challenged.

It was further held that the term 'worker' had to be interpreted to include members of the armed forces and that as such they were entitled to form 'trade unions' and 'employee organisations'. Even though a disciplined and effective defence had to be maintained, it could not mean that allowing members of the force to join trade union, no matter how circumscribed its activities, would inevitably undermine the discipline and efficacy of its Defence Force.

Developments in the Military Bargaining Council
Colonel Du Plessis stated that there had been an official meeting between the Department of Defence and the members of the recognised military trade union, SANDWU, but that it was not easy to resolve matters due to the fact that the Union seemed to have the tendency to bring forth issues and then keep on stretching them until they become very big issues.

He also said members of the Union did not seem to be sensitive to the negotiators and insisted on being involved in managerial matters. Interpretation of issues also was another problem.

He went on to explain that the present Defence Act and Regulations seemed to conflict with the Constitution as the members of the Defence Force are not regarded as workers in terms of the Act but instead as soldiers who should just obey without complaints.

He referred to the 'grey period' before the formation of the Union when there were still ongoing negotiations between the parties. The question is whether those negotiations are to be taken into account or only the issues after the Union's formation should be focused on.

The Department, according to the Colonel, sees the Union as militant displaying the spirit typical of trade unions. He said that there were issues which still had to be resolved.

He indicated that the Military Bargaining Council was being flooded with issues of administrative nature which could be cleared off without the involvement of the Council. The Union was further using the media to challenge the negotiators' mandate, attacking individuals and thus playing the man and not the ball.

There has been a Conciliation Board meeting held but some members were not content. The issues challenged relating to military prosecution were issues that the Department felt were not to be challenged. Pensions were also not a matter for negotiations.

Discussion
The Chair stated that members were to meet with their parties before raising any questions since the presentation is being made for the first time. He went to say that he believed South African Constitution to be the best. He explained that most countries do not allow members of the Defence Force to vote whereas in South Africa they are given that opportunity.

He stated that inasmuch as the Constitutional Court recognised members of the force as workers, a balance had to be struck to avoid anarchy as that could be dangerous. There is no doubt regarding the need for relief measures by the members of the Defence Force. However the question was whether the current measures were appropriate. He said that he personally did not believe that Military Trade Unions (MTU) would be the best way.

There was also a concern raised by one member of the Committee to the effect that in most cases trade unions end up compelling those in authority to give in to their demands and that there was a fear regarding this MTU.

Report Handout and Criticisms laid out against the recoginsed Union
Mr Smit (NNP) inquired as to whether the Minister's proposed report on the issue was going to be handed out. He also asked about the truthfulness of the statements indicating the membership of the recognised Union to have fallen below the legal requisite number for establishment of Unions and whether the Union was in anyway politically aligned.

The Minister of Defence, Mr T. Lekota, stated the whole issue was still at its very initial stages and that as such there was not yet a comprehensive remedial proposal. He further said that review of the General Regulations might have to take place should need call for it. He indicated that the National Defence Force occupies a position in security making it a unique institution.

On the question raised by Mr Smit, the Minister explained that the report would have to present a complete picture and preparations were being made in that regard.

Regarding the number of members of the Union, the Minister stated that he was not in a position to say whether the number fell below the minimum requirement or not. He explained that the trade unions in the process of registration had a responsibility to prove that they do not fall below the number and that he then accepts the information bona fide. However, he indicated that the other military trade unions could lodge a complaint to the Minister should the number of members of the recognised union fall below the number as provided for and the Minister could accordingly withdraw the union's registration.

On the issue of the Union being politically aligned the Minister stated that should it happen to be the case, it would be wrong and the Union would then have to be summarily dismissed. He said that it was important for members of the Force to study issues systematically and indicated that the Defence Bill was still to appear before the Parliament and that in the interim the old Defence Act still remained applicable.

Mr Smit followed up the Minister's comment by stating that he would forward the document that lays out the criticisms to the Minister.

Procedure in Other Countries
Mr Middleton asked if there were any other countries that allowed the existence of the MTUs.

The Minister in reply gave an example of the Netherlands among other countries but he also explained that the difference was that these were just associations aiming at allowing the military to approach the government from time to time to address issues.

Education of Members
A question was raised regarding the measures which have been taken to educate the SANDF members.

In response Colonel Masilela explained that there was civic education going on at the moment.

Colonel Du Plessis said that there were problems relating to funds to enable formal education but that the obligation to inform members was still being carried out. He stated that such training would have to be carried out jointly with the Union.

Staffing
There was a question concerning the fact that some SANDF members are being transferred to fill posts for which there was nobody else to fill and whether doing so was not tantamount to infringing the right of the members to fill entry posts voluntarily.

Colonel Du Plessis replied that this was part of an operational structure and that such issues could not be addressed by an outsider, otherwise this could bring the military operations to a stand still.

He made an example to the effect that in the UK there was a Board of Remuneration which deals with remuneration issues only, deciding on whether there should be increments or not but that the Board does not interfere with military operations. In Norway and Sweden, trade unions or however they are referred to there, could go on strike. However, he said that South Africa was the first country to allow the existence in the form in which it is currently and that one wonders whether it is going to work.

He expressed the view that in cases of disagreements, the important question should always be what is in the best interest of the country.

The Chair summarised the meeting by stating that the Committee notes the report by the Minister and that it would hold a follow-up meeting for trade union issues in order to come up with a balanced view.

He said that the ruling by the Constitutional Court had to be respected and there had to be an acceptance of the existence of trade unions. Therefore the Committee decided that trade unions which are registered and recognised would be invited.

He concluded by saying that the Military Ombudsman would also be invited with the view of making his office a serious office for relief.

[Note: There are five military trade unions: three are unregistered, one is both registered and recognised (SANDU) and another (SASFU) has recently registered. In order to register, there has to be 5000 members. In order to be both registered and recognised in order to enter the Military Bargaining Council, there has to be 16 000 to 17 000 registered members.
SANDU = South African National Defence Union
SASFU = South African Security Forces Union]

Appendix:
LABOUR RELATIONS FOR MEMBERS OF THE SANDF

· INTRODUCTION

· AIM

· LEGAL FRAMEWORK

· BACKGROUND

· DEVELOPMENTS IN THE MBC

· OPTIONS AVAILABLE

INTRODUCTION

· Fair labour practices

· Establishment of MTUs

· Collective bargaining

· MTU activities not disruptive

· Environment conducive to sound and healthy LR

AIM

To enlighten the members of the Joint Standing Committee on Defence on the developments and current situation with regard to labour relations in the DOD and more specifically in the Military Bargaining Council (MBC).

LEGAL FRAMEWORK

1. Challenge - 1999

2. Sec 126B of the Def Act, No 44, 1957

3. Own argument

· Sec 22(1) of the Constitution

4. Argument by Applicant

· Sec 23(2)

5. Essences of Ruling

· Beyond reasonable and justifiable

6. Funding

· 126(B)(1) - Unconstitutional and invalid

· Three months to comply

· 126(B)(2) - Unconstitutional and invalid

· Members are workers

· Limitations justifiable ito Sec 36

BACKGROUND

· Constitutional Court Ruling

· Matters for Negotiation

· Military Bargaining Council

· Military Trade Unions

DEVELOPMENTS IN THE MBC

· First official meeting

· Reasons for inability to resolve matters

· Extension and development of issues

· Lack of sensitivity of negotiators

· Interpretation anomalies

· Insistence to be involved in managerial matters

· Present Act and Regulations

· "Grey period"

· Disputes

· Confrontational stance

· Flooding of the MBC

· Use of media

· Playing the man and not the ball

· Disputes declared Promotion Policy - Settled

· Military Prosecutions

· NSF Pensions

· Changes to the GR

· Staffing

· Views of members of the PDSC

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