Backpay for locked out workersBooysen Mashego
Our members at M and P Bodies went out on an unprotected strike action on August 2 2007 in support of a fellow employee who had been dismissed by the employer.
The employer immediately locked out the individual employees and issued a lock-out notice. The employees tendered their services with effect from August 3 2007. This tender was not accepted by the employer.
The lock out was ended on August 13 2007. The workers returned to work on August 14 2007. Numsa head office instructed Ruth Edmonds attorneys to bring an urgent application on behalf of our members to interdict and restrain the employer from continuing with a lock out of our members.
The partiesâ€™ contention was that the employees have a clear right not to be unlawfully locked out by the employer who had failed to comply with the requirements of section 64 of the LRA in any way at all.
Insofar as the employer may believe that it was engaged in a defensive lock out, Numsa advised the employer that the strike had ceased on August 2 2007 and that the employees would tender their services with effect from August 3 2007.
Despite this letter, the employer failed to end its unlawful lock out on August 3 2007 and refused the individuals tendering of their services.
The employer contended that it had locked out the employees in response to their participation in a strike that did not conform to the provisions of section 64 of the Act.
The application was argued successfully by the union. The court found that the lock out was unlawful and the employer was ordered to pay the employees' payments of their contractual wages for ordinary hours of work for the period from August 3 to August 13 2007.
Last bid to help New Sun workersAs Numsa News went to print, Numsa's lawyers were busy lodging a request to liquidate Thaba Nchu company, New Sun, in a final bid to get access to the assets of New Sun so that workers can be paid what the court awarded them.
More than 100 workers have been waging a battle with their employer since 2003. Way back then their employer applied to the Metal Industries Bargaining Council (MEIBC) to pay below the minimum wage rates to its entire workforce.
The MEIBC looked at their request and ordered them to pay 60% of the minimum wage rates from July 1 2003. However, the company failed to pay the extra amount and fell into arrears.
In November 2003, the MEIBC again wrote to the company ordering them to pay their arrears before December of that year.Once again the company failed to do so.
Workers embarked on an illegal strike demanding payment of their arrears. The employer dismissed all the striking workers. Numsa took the issue to court.
The court found in the workers' favour. It said that the employer had provoked the workers into striking and said their dismissal was 'procedurally and substantively unfair'.
It ordered the employer to reinstate them all (besides those that had died in the meantime) and to pay them what it owed them together with interest.When workers returned to work they found their employer gone.
When the sheriff tried to attach the assets of New Sun so as to pay the workers, he was told that the factory was owned by someone else and he could not attach the assets."Workers keep on asking me how this is true," says Sehume, Numsa shop steward at New Sun.
"The new owner is the very same person that used to work with New Sun!""There is no difference between the election of Zimbabwe and the case of New Sun," says Sehume.
"Today the winner is the loser!""Our view is that the new owner is using New Sun's equipment and assets," says Mashego. "Bringing an application to liquidate will we hope get the owners to attend the liquidation hearing so that we can find out what happened to the assets of New Sun – its machinery, equipment, cash and how they were managing the business.
"I feel for those employees," says head of Numsa's legal department, Booysen Mashego, "they have a judgment in their favour but it cannot be enforced.
"The liquidation route is the "only legal route left to us to get what is owed to workers," says Mashego.New Sun workers will hold a report back meeting on August 23 in Thaba Nchu. Let's hope they have good news to report.
Workers win reinstatement
When hundreds of workers arrived at Numsa Head Office, national treasurer, Philemon Shiburi got nervous. He thought they could be coming to complain about service. But then he saw the smiles on their faces!
Overjoyed Top Trailer workers show their happiness with national treasurer Philemon Shiburi and Jacob Xilongo
Workers from Top Trailer in Wadeville had just won reinstatement after their employer had fired them for allegedly participating in a strike in 2006.
"The company said it was a strike; we argued from the beginning in their enquiry that the dismissals were unfair and uncalled for because it was not a strike," says Jacob Xilongo, Numsa organiser in Ekurhuleni region.Just as Numsa was ready to represent workers in court, the company offered to talk.
In terms of the agreement reached, it said it would take all workers back who wanted reinstatement with 12 months compensation starting from mid-August.
About 40 workers chose compensation instead of reinstatement.