'Eskom strike will be unlawful'

Johannesburg - Legal experts doubt whether workers will have a legal footing to stage a strike at Eskom, which by law is deemed an essential service.

This came after trade unions representing the majority of the electricity utility's workers said although they hoped for a last-minute deal to avoid a strike, they did not rule out the possibility of a work stoppage.

Trade union Solidarity said on Monday it hopes Eskom will table a revised wage offer before Tuesday, when it goes to brief its members and ask for a mandate on the way forward.

"There is no formal deal at the moment, but there is a willingness from all parties to find a solution and we are committed to finding a negotiated solution," said Solidarity deputy secretary general Dirk Hermann. He was talking about "informal discussions held between the senior leaders of trade unions with Eskom's senior managers at the weekend".

Hermann said the discussions were outside the formal negotiating structures and the principals would take them to the formal structures. "There is a willingness to avoid any disruptions through strike."

Solidarity, however, would not rule out the possibility of a strike if a deal failed to materialise. "We will ask our members for a mandate and take it from there." Hermann said a strike was a possibility. "If the members ask for a strike, then a strike it will be."

The National Union of Mineworkers (Num) said it would ask its members for a mandate on Tuesday, as efforts to resolve the wage dispute have so far failed. Despite Eskom being declared an essential service and a strike therefore being illegal, the three unions have said they would go ahead with industrial action if that was what members wanted.

'Anything they do must be within the law'

"There is nothing illegal about a strike at Eskom. The court interdict three weeks ago was about us [Num] not following due process in going on strike," said Num spokesperson Lesiba Seshoka. "This time we have." He was referring to an interdict that stopped his union going on strike in May.

However, labour law experts have also said Eskom's organised workforce cannot legally strike in support of its demand for a 9% across-the-board wage increase and R2 500 per month housing allowance. Eskom has said its 8% wage increase and R800 per month housing subsidy offer was "as high as it can go".

Legislation makes an arbitration process compulsory. Eskom has referred the matter for that purpose, but unions say they will not go that route because they distrust the system.

"To strike would be flouting the law. I think the strike talk is just a bluff," said Andrew Levy of Andrew Levy Employment. "They can't strike. That would be socially and morally reprehensible, and a blatant disregard of the law."
 
Levy said the unions can nominate their own arbitrator, which - together with Eskom's nominee - would nominate an umpire to make a binding ruling on the dispute.

"The law is very clear that on essential services there can be no strike," said Joe Mothibe, director of employment and labour at Denys Reitz. Asked what would happen if unions simply went ahead with a work stoppage, Mothibe said Eskom would probably obtain a court interdict preventing the strike, as it did in May.

"They [unions] must just follow the law and go for arbitration. Anything they do must be within the law." Mothibe said the arbitrator would decide on a fair and equitable wage settlement.

 - Fin24.com