Moolmans prevails over BMWU, for now
Lebogang Mosikare | Tuesday February 9, 2016 12:47
The Union and Moolmans have clashed frequently over the years, with the labour organisation rallying against the contract labour practice used by the mining contractor.
BMWU had taken Moolmans to the Industrial Court arguing that the mining company was not consulting and negotiating with its members in good faith, a practice contrary to good labour relations.
Delivering ruling on the matter, which BMWU had brought to court on an urgent basis, Justice Christian Diwanga said he found that there was no need for BMWU to bring the issue to court on an urgent basis.
Without delving into the merits or demerits of the case, Justice Diwanga said BMWU still has a chance to bring the issue to court in a normal way.
Diwanga also said that there was no way the court could reverse the decision to rehire workers who were retrenched by Moolmans because it (retrenchment) had already happened.
A crestfallen BMWU vice president, Norman Kelaotswe, told Mmegi after the ruling that they are contemplating taking “radical industrial action” to paralyse the operations of Moolmans, which action is usually witnessed at mining companies in neighbouring South Africa, to compel Moolmans to deal with their members in good faith.
BMWU had applied for an urgent court application saying that the procedure taken to retrench its members was unfair and unprocedural.
“The respondent refused to involve the applicants in consultations and negotiations after signing the recognition agreement. The mining management had acted in bad faith,” said BMWU lawyer, Jackson Mthunzi.
Mthunzi also wanted the court to stop the respondents from making decisions that affect the workers welfare without consulting them.
He added that Moolmans has unilaterally stopped the applicants from going to work and has not bothered to consult the applicants about that issue.
“We want to indicate that the only forum available to all parties in the matter is the negotiation committee. The matter is urgent because the management continues to refuse to engage the union about the retrenchments although they have already carried out that process. We submit that this may not be the only retrenchment that is going to happen and want the court to give the way forward in the matter,” said Mthunzi.
The management, Mthunzi added, did not provide the names of the employees affected by the retrenchment and reasons for their retrenchment.
“The applicants’ position is that they were not consulted properly. They felt aggrieved and came to court to seek redress.
No decision of the court can change what has taken place. At the time the matter was at the labour department for mediation, the issue of retrenchment was not an issue. We want the court to restrain the respondent from taking any activity without involving the applicants. On December 29 last year, the respondent effected a shutdown without involving the applicants,” said Mthunzi.
He said they feel that the labour department may not deal with the issue urgently hence they approached the Industrial Court for redress.
However, the respondent attorney, Nothando Mogale, said there was no use talking about the retrenchment because it had already been superceded by events.
“We oppose that the matter is urgent. The applicants should have taken the matter to court in November when the retrenchments took place. The court has no jurisdiction to hear the matter because it is not urgent. The applicants feel that the respondent acted in bad faith, which is not the case.
We believe in consultation and acting with employees in good faith. The retrenchment process has been overtaken by events. There is no way the court can deal with this matter without dealing with the issue of retrenchment. We do not want the court to prejudge what will happen in the future as the applicants so seek,” said Mogale.
Mogale stated that the applicants were aggrieved by something during the retrenchment, which unfortunately has taken place and cannot be reversed.
“This application has no use and is just academic exercise. The best option that the applicants can do is to consider their action and approach the court in a normal way,’ Mogale said previously.