NUM and NUMSA act in defiance of the law and the needs of the country

13 August 2018

Eskom has noted the NUM and NUMSA press releases and media interviews in relation to the failure of Eskom and its union partners to reach an agreement on the protracted wage negotiations, and wishes to place the following on record:

1. Eskom is designated an essential service in terms of the precincts of the Labour Relations Act (LRA) precisely because the provision of power to the nation’s industrial and society needs is critical to sustaining and growing the future of the South African economy and creating much-needed jobs. All Eskom employees are, as a result, prohibited from engaging in any form of industrial action and/or any action that retards or obstructs Eskom's operations. In addition, non-essential service Eskom employees are bound by the precinct of the Labour Relations Act which prescribes the procedures to be followed in order to secure protected (from disciplinary action or job loss) strike action.

2. During June 2018, NUM and NUMSA defied the LRA and its essential service provisions and embarked on unprocedural, and therefore unlawful and unprotected, strike action. This strike action included various acts of criminality, including industrial sabotage and destruction of property. The industrial action led to rotational loadshedding that impacted on society and the economy very negatively, heightening the risk of further credit downgrades for the country and downstream job losses for industry.

3. On the basis of this national crisis, the Minister of Public Enterprises, Mr. Pravin Gordhan, held an urgent meeting with the unions and the company on the 15th June 2018. At this meeting all parties committed to normalize production and re-engage in peaceful, orderly collective bargaining without any further threats or disruptions from any party. Pursuant to this objective, the meeting reached an understanding that the unions would end all unlawful industrial action and the company would not discipline employees who engaged in the June 2018 unlawful industrial action that created the crisis Ministerial meeting.

4. Both parties then complied with that understanding. Industrial action was ended by the unions and the company did not discipline any employees for the June 2018 unlawful industrial action. The negotiations resumed in a peaceful and orderly fashion in the Eskom Central Bargaining Forum. Ten full days and nights of meetings were held over a further six-week period without further disruptions. Regrettably, no agreement was reached and at the end of July 2018 both the unions and the company requested the CCMA to mediate the outstanding matters under section 150 of the LRA.

5. Unfortunately, prior to and during the CCMA S150 process NUM and NUMSA members again initiated a second round of unlawful industrial action for five days against the letter and spirit of the June 2018 agreement, and against the procedures of the LRA, and against a standing Labour Court interdict outlawing industrial action that had been communicated by the company to all employees in every workplace. In addition, from a collective bargaining point of view, the new round of unlawful industrial action flew in the face of the all-party agreement to seek to finalize the negotiations under the statutory auspices of the CCMA in an orderly and peaceful fashion.

6. This second round of unlawful industrial action placed the entire power grid system at risk and again enforced load shedding alerts and necessitated gas-fired turbines to be initiated at great expense to the nation. It again included acts of criminality by way of industrial sabotage and destruction of property. Throughout this process the unions demonstrated no intent to prevent and/or distance themselves from the unlawful acts of their members. There has never been a single statement by unions declaring their member’s action unlawful and against the letter and spirit of bona fide collective bargaining. They have remained defiant and indeed complicit with the actions of their members, preferring instead to blame Eskom for the crisis they created. Sadly, the unions remain unaccountable agents who unilaterally walk away from the Ministerial understanding and act in defiance of the law and court interdicts, with an attitude of narrow self-interest defiance, underpinned by no humility or responsibility to service the power needs of the nation.

7. Despite this attitude of union leaders, the company sought at all times to uphold the integrity of the collective bargaining process whilst its operations were being shut down and the country’s power needs placed on high alert. Even under the CCMA process, notwithstanding the unlawful industrial action, the company made further improvements to the wage offer to assist in ensuring the settlement of the wage agreement. This final offer was to ensure that the parties could secure agreement to settle the wage negotiations. It was overwhelmingy accepted by Eskom employees and the operations returned to normal. After this uniform endorsement by union members, the company returned to the CCMA on the 8th August 2018 to sign the agreement in good faith.

8. Regrettably, despite the union confirming that all items are agreed in the wage agreement, and despite Eskom employees desperately awaiting the implementation of the agreement, the unions raised a new demand as an absolute precondition for signing the agreement at the meeting of the 8th August 2018. This demand was that the company must agree not to discipline any employee who engaged in the second round of five days of unlawful industrial action.

9. The company refused to accede to this new demand by NUM and NUMSA. From the point of view of the company, the unions gave up any once-off right to be protected from the no disciplinary action by the company when they re-engaged in a second round of unlawful industrial action in defiance of all labour law, and in defiance of a standing court interdict, and in defiance of the Ministerial-brokered understandings of orderly and peaceful collective bargaining processes. Moreover, it is untenable that the company is effectively being asked to both condone and be complicit in the unlawful actions of some Eskom employees and their unions. This cannot be reasonable or justified under any circumstances in any democracy, and especially in our country where labour law protects the rights of employees to fair and due process in the event of any disciplinary action being taken against them.

10. The company has advised the unions to sign the wage agreement so as not to further prejudice Eskom employees who await their salary adjustments. It has further advised the unions that employees who participated in unlawful action will be subjected to disciplinary hearings and where found guilty of acts of misconduct, disciplinary action will be instituted against them. The unions know well that they have every right to represent their members internally in company disciplinary hearings and they have every right to refer matters that they regard as unfair to the CCMA for final arbitration determination. However, the unions are resisting to follow this lawful route and instead prefer to threaten Eskom with more industrial action and place the country at even further risk. The company has advised too that those employees who engaged in potentially criminal acts of destruction of property and/or sabotage are outside the company’s jurisdiction and in the hands of the South African Police Service (SAPS).

11. The Eskom Board and management are steadfast in their commitment of restoring good governance to this critical public institution. Part of this commitment is to endure compliance with the country’s laws and company rules and consequence management for non-compliance. This is essential to secure the viability of the company for all its employees and the nation at large into the future. As such, Eskom remains committed to concluding the wage negotiations expeditiously. The company urges all employees to honor their contracts of employment and the law and refrain from engaging in any further unlawful industrial action. The company is ready to sign and implement the wage agreement once all parties sign.

Issued by Eskom Media Desk, 13 August 2018