‘No further claims' clause can be challenged
Some of the debates at Numsa's National Bargaining Conference in April this year raised hopes that failures of the past would be transformed into successes in the future.
Cedric Gina reports on the debate around the 'no further claims clause' in the auto sector and the issue of the incorporation of the House Agreements into the Engineering Main Agreeement.
AFTER the strike in the auto sector in 2001, when auto comrades analysed the settlement agreement, many felt that the union sold out by not deleting the ‘no further claims' clause. Workers felt that the clause prevented them from striking on issues not covered by the agreement.
However at Numsa's April National Bargaining Conference, general secretary, Silumko Nondwangu, revealed that union legal opinion interprets the same clause in a different manner.
The ‘no further claims' clause says that: ‘the workers will not raise any substantive on cost issue covered in the agreement during the period of the agreement at national or plant level'.
The agreement however goes on to say that such issues can be raised, if they are not in the agreement.
According to Norma Craven , Numsa Legal Officer at Head Office, "workers can make substantive on-cost demands that are not covered in the agreement." Xolisile Copiso , Numsa shop steward from Daimler Chrysler confirms that in his factory "we have managed to increase the employer's medical aid contribution from 55 percent to 60 percent, in the presence of the ‘no further claims' clause that many comrades are complaining about."
The problem emerges if a dispute arises over the issue. While parties are negotiating in good faith, the agreement prevents workers from going on strike.
If there is a dispute about whether this interaction is in good faith, then either party may seek arbitration and the award can compel the errant party to engage in good faith.
"However this award relates only to the interaction and not to the substantive dispute," says Craven. "It is our opinion that if at the end of negotiations there is no agreement and providing workers comply with section 8.2.2 2, then strike action can be taken."
Clause 8.2.2.2 of the Agreement says that if the mediation/ conciliation fails, the mediator shall issue a certificate as contemplated in Section 135(5) in the LRA and either party shall be entitled to take industrial action upon forty eight hours written notice.
The General Secretary challenged the delegates to, "seek a strategy that will identify the auto companies where these legal opinions can be tested before the next round of auto negotiations".
Source
Numsa News