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PAY COLA THIS YEAR – JUDGE URGES GOVT

By Sifiso Nhlabatsi | 2020-01-17

INDUSTRIAL Court Judge Abande Dlamini has urged government to keep its promise and pay public servants the long-awaited cost of living adjustment (CoLA).

Government has maintained its promise to pay CoLA in the new financial year beginning in April.

Judge Dlamini said this when delivering his judgment on the strike by Public Sector Associations (PSAs) of September last year over the 7.85 per cent CoLA.

He said the court is aware that at the height of the back and forth on the cost of living adjustment in the year 2019, government came out to assure civil servants and all stakeholders concerned that in the financial year 2020/2021 its fiscus would have improved, and that civil servants would definitely be considered for CoLA.

“In this regard, therefore, the court implores our government to consider the welfare of its employees and keep its promise by engaging and negotiating with the unions on a meaningful cost of living adjustment that will be agreeable to all concerned parties,” part of Justice Dlamini’s judgment read.

On the other hand, the Industrial Court judge pointed out that it is high time  labour unions and their leadership did a serious introspection and rather stick to their core mandate of ensuring peaceful and harmonious industrial action as per the country’s labour laws.

The judge said however frustrated and despondent workers may feel about their socio-economic conditions, their bypassing laid down procedures and escalation of their conduct to tactics of disruption, intimidation and violence shall never be countenanced and condoned by the court.  According to Justice Dlamini, the court fails to comprehend why strikes should degenerate from a peaceful withdrawal of labour, to errant and violent conduct in which non-striking employees and innocent third parties are adversely affected, without regard to their constitutional rights not to be part of the strike if they so choose.

He said this given that the country’s legal framework incorporates a variety of accessible ways to resolve labour disputes.

“The tactics of intimidation and violence that characterise industrial action of late have a negative impact, not only on our already struggling economy, but on lives and properties as well,” the judge stated.

Judge Dlamini added that more often than not, innocent citizens get caught up on these violent tendencies and conduct, are injured and hospitalised.

He said the country’s cities and towns infrastructure is thrashed and vandalised and businesses affected during these strikes.

“All this abhorrent conduct is uncalled for and clearly unnecessary,” Justice Dlamini stated.

Court stops civil servants’ 7.85% CoLA strike

Government has emerged victorious in stopping civil servants from commencing with the strike action over the 7.85 per cent cost of living adjustment.

Judge Abande Dlamini in his judgment ordered that civil servants were interdicted and restrained from continuing with the strike action which commenced on 23 September 2019. The National Public Service and Allied Workers Union (NAPSAWU) with the Swaziland National Association of Teachers (SNAT) engaged in a strike action demanding a cost of living adjustment of 7.85 per cent.

This was after government made it clear that it will not give civil servants what they were asking for due to its fiscal and cash-flow challenges.

The strike action turned out chaotic which resulted to the ministry of labour and social security moving an application to stop the strike. 

 The ministry petitioned the court on a certificate of urgency interdicting and restraining the respondents (SNAT and NAPSAWU) or anyone acting in cohorts from continuing with the strike in terms of notices to strike served upon the government of Eswatini.

The ministry wanted the strike stayed with immediate effect pending the determination of the application.

After a long court battle which took about three months, the Industrial Court  finally issued a judgement on the matter.

The judge started off his judgment by emphasising that the right to strike has always been and still remains the cornerstone of the collective bargaining system in Eswatini.

“For that reason, one therefore needs to state it categorically that strikes that are characterised by violence and the unruly behaviour of strikers is detrimental to the legal foundation upon which our labour relations as a country are founded,” Justice Dlamini stated.

He added that this was detrimental and further extends and causes irreversible harm to the country’s already struggling economy.

The judge explained that by and large the aim of a strike is to persuade the employer through peaceful withdrawal of labour to agree to the employee’s demands.

He said it is therefore expected, and in fact acceptable that a certain degree of disruption may be expected in the work place during a strike.

Justice Dlamini said, however, it is not acceptable to force employers through violent or other unlawful conduct, to accede to their (unions) demands.

He said any such violent or other unlawful conduct seriously erodes and sabotages the fundamental values upon which this very strike is firmly founded and rooted.

“Not only that, such conduct negates the rights of non-striking workers to continue to exercise their democratic right of working with dignity, in a safe and secure workplace.”

Minister of Labour Makhosi Vilakati, when moving the application to stop the strike, stated that the strike had become legally untenable due to its threat to national interest. Judge Dlamini read out examples given by the minister saying that the unions and their members intimidated and threatened to harm teachers who were exercising their rights not to partake in the action. 

He said they were so reckless that they invaded Nyakatfo High School on 25 September 2019 and terrorised pupils and teachers.

Reports of threats to life were also cited in the application by the minister.

National interest threatened

In deciding the matter, Judge Dlamini pointed out that the court was enjoined to determine if the minister had to its (court’s) satisfaction proved that national interest was threatened or affected by the actions of the respondent unions and their members.

“If we are satisfied that the minister has proved that indeed national interest is threatened or affected, then the court will not hesitate but grant the minister the injunctive relief he seeks,” the judge explained.

Judge Dlamini stated that from the evidence before court, coupled with the submissions of both the attorney general and lawyer Lucky Howe, it is the view of the court that national interest has not only been threatened but has been adversely and seriously affected by the conduct of respondent’s union members.

 

“Having made this finding, it is therefore the duty of this court, having regard to the national interest of course, to intervene and interdict such unlawful conduct,” Judge Dlamini stated.

 

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