Military trade unions this week clinched a victory over the Department of Defence on de-unionisation, forcing changes to the Defence Amendment Bill to reinstate all references to the military bargaining council that were left out of the original draft, Business Day newspaper reports.
The changes followed submissions by a faction of the South African National Defence Union to Parliament last week that amendments to the Defence Act to set up a national defence service commission would be a significant limitation on military trade unions’ right to collective bargaining. The original draft of the amendment bill dropped all references to the bargaining council, leading the unions to complain that this was de-unionisation by another means, Business Day said.
In its original form, the amendment bill would not have banned military trade unions but would have put the forum in which collective bargaining took place in doubt. Should the bill not have been changed, a Constitutional Court challenge would have been certain.
Both President Jacob Zuma and Defence Minister Lindiwe Sisulu are on the record as saying they do not want unions in the military, after an illegal march on the Union Buildings by disgruntled soldiers last year. Should the government want to de-unionise the military it would have to be done through a constitutional amendment, as the right of soldiers to collective bargaining is guaranteed by rulings of the Constitutional Court in 1999.
This week, after Parliament’s defence committee had heard three different legal opinions on the issue, Secretary for Defence Mpumi Mpofu insisted that it had never been the intention of the department to use the Defence Amendment Bill to de-unionise the military. She acknowledged, however, that by dropping all mention of the bargaining council “the unintended consequence was to give the impression that the bill intended to de-unionise”.
The chief legal adviser at the defence department, Siviwe Njikela, earlier told the committee that a decision had been taken to reinstate the references to the military bargaining council ” to eliminate any possibility of a misunderstanding “.
Earlier this month Sisulu told journalists she might go to the Constitutional Court to ask it to review its 1999 judgement. “That is the direction we’d like to take because when you look at the finding, it was saying you’ve got to put in place a mechanism that you do not take away the rights of the defence force. Our interpretation of it, either because we were not applying our minds to it or because of the pressure of the present in which we were operating, our interpretation at that time was that the Court said ‘there shall be unions’, which it did not say.
“So we are considering going back to the Constitutional Court and saying ‘would you consider opening this for discusion so that we can put accross our further view, which was not possible perhaps in the environment in which we were defending the case.”
Pic: Rioting SANDU members, August 2009.