FNB ordered: "Don't pay yet, finish talking"

LEKOPANYE MOOKETSI
Correspondent | Friday October 8, 2010 00:00

This followed an application filed by the union seeking an order to that effect. The union says while they were still negotiating with employers for a salary increase, the bank had already awarded an eight percent increase to the non-union workers.

The respondents in this matter were FNB and 103 non-union workers who were awarded the increase. 

In September, the court made an interim order that the bank should not implement  salary increases but the order was ignored. In his submissions yesterday, the union's attorney, Joseph Akoonyatse, accused the bank of undermining the spirit of collective bargaining which is recongised by law. 

Akoonyatse said the constitution makes it clear that every individual has the right to join a union. 'It is a fundamental right,' he submitted.

He said there has been a detriment after the bank went ahead to award a salary increment to some workers whilst at the same time it was still negotiating with the union. To him, that was tantamount to undermining the negotiation process and the union itself. He contended that his clients have suffered prejudice. He said the negotiation between the two parties is going to be negatively affected. 

The union lawyer said members of the union have a right to negotiate a salary increase with the employer. On the other hand, he said, non-union members cannot negotiate with the employers. 

'They are not entitled to negotiate,' he said. The judge chipped in to note that the court does not regard non unionised members who are the co-respondents as a unit.  He said they are just individuals. The employer has to deal with them as individuals and not as a group.   

Akoonyatse said the employer is faced with two conflicting rights. He told the court that the employers must ensure that the decision they take does not unduly prejudice the other side.

Akoonyatse said FNB acted in bad faith by offering non unionised employees a better package. 'It is a serious risk,' he said.

He said some union members have resigned from the labour movement because they have been tempted by the employers' offer.  He said it was imperative that the court should set the bank's decision aside.  'When we negotiate there is no party that must have the upper hand against the other. They must negotiate from an equal footing,' he pleaded. 

He said they want FNB to be held accountable for the terms and conditions of collective bargaining.

Attorney Odirile Itumeleng who represents the non-unionised employees took issue with the applicant's strategy to approach court without giving them proper notice. He said they could not be entitled to an interim order against any party without notice.

Itumeleng said the applicants decided to take a short route to court. He told court that the right for non unionised employees to deal with FNB does not take into consideration whether the employer is holding negotiations with the union or not.  He said the reasons his clients did not join the union showed that they can fight their battles at any time. 

Itumeleng implored the court to carry a balancing exercise. He said when one looks at the prejudice that his clients were going to suffer, it was clear that it was irreparable. He pleaded with the court to dismiss the application, adding that the applicants have an alternative remedy in this matter.

Attorney Mboni Chilisa, representing FNB, said the bank was forced to comply with the contractual obligations that it has entered into with the non union employees

'There is no dispute that they have contractual right to have their salaries reviewed in August. It is a right the applicant is aware of,' he said. He noted that what the bank did was to simply meet their contractual obligations.He said the bank was not spiting the union.

Chilisa said the proper and equitable balancing exercise was to have even union members accepting the eight percent that was offered on interim basis.  But the judge wanted to find out whether this could not weaken the union's bargaining position.

Chilisa said this could have rather strengthened the union's position because they could have known that in their negotiations they would not be entitled to anything less than eight percent. 

Chilisa said a person praying for an interdict has had to approach court with clean hands.  He said in the case of the applicants, they did not have clean hands, adding that the court should dismiss their application under those conditions.

The FNB lawyer said while the union has accused his clients of failing to negotiate in good faith but the applicants are also guilty of the same conduct.

He said on some occasions, the union has refused to come to the negotiating table. He said the union has also made unreasonable preconditions for negotiations like calling for a financial statement.

He noted that the union was making unreasonable demands in the full knowledge that the bank has contractual obligations with the non union employees.