- NUMSA wants the Labour Court to declare that Comair and its business rescue practitioners are acting unfairly regarding a section 189 retrenchment process.
- The union also objects to a collective agreement signed between Comair's rescue practitioners, Solidarity and other parties.
- Solidarity says this might mean that Comair - which operates kulula.com and British Airways domestically - could lose its business rescue funding.
Whether Comair's kulula.com and British Airways brands will be able to start operating again as from 1 December after all, might be impacted by an urgent Labour Court application by the National Union of Metalworkers of South Africa (NUMSA) on Thursday.
NUMSA wants the Labour Court to declare that Comair and its business rescue practitioners are acting in a procedurally unfair manner regarding a section 189 retrenchment process which started on 27 October this year. The aim is to reduce the 1 800 employee count by 145.
NUMSA also wants the Labour Court to declare that its members are not bound by the terms of a collective agreement reached in late September this year between Comair, the rescue practitioners, Solidarity and a pilots' association.
NUMSA wants the section 189 process to be withdrawn and a fresh notice issued. It also does not want the collective agreement from September to be relied on.
"There must be consultation in good faith on all issues contemplated in the Labour Law Act regarding section 189 retrenchment," states the union.
According to a supporting affidavit to the NUMSA application, the collective agreement contains provisions which will lead to employees waiving their rights to remuneration for the period of 5 May to 1 December this year. Comair went into business rescue at the beginning of May. The collective agreement also provides for a reduction in workforce and a section 189 consultive process to be shorter than the legally required 60 days.
"We reject the idea that workers must be bullied just because there is a threat of liquidation. Just engage meaningfully. The power is in their [the rescue practitioners] hands. If they care that much about the rescue process being threatened, they will engage meaningfully," says NUMSA spokesperson Phakamile Hlubi-Majola.
Other side of the coin
Derek Mans, Solidarity's organiser of aviation and defence, however, believes NUMSA's insistence that the collective agreement which exists between the airline and Solidarity must be abolished, might mean that Comair would lose its business rescue funding.
"The purpose of the agreement is to assure the continued existence of Comair so that as many jobs as possible can be retained," said Mans. "Solidarity has always consulted with its members and other employees on an ongoing basis and always acted in accordance with their mandate."
According to Mans, the collective agreement is part and parcel of conditions set by the Comair Rescue Consortium, which won the bid in the rescue process.
"There were certain conditions the consortium wanted in place before it would commit R500 million. Some of the conditions to be met were labour issues. They wanted 50% plus 1 of all employees to agree to those terms before they could commit. Solidarity and another union signed the collective agreement as we together make up more than 50% of Comair's 1 800 employees. We have agreed to shorten the section 189 consultation period," says Mans.
"We also accepted the rationale of why we have to go through a 189 process. Comair is not sustainable [in its current form] because of the impact of Covid-19 leading to it not beinig able to operate and generate an income. We are still hopefull that flights could resume from December."
Mans says NUMSA's court application is putting the company's ability to start operations in December at risk.
"The collective agreement is a creature of the business rescue process. All pros and cons were presented to members and we had an overwhelming mandate to accept it. If we do not meet the consortiums' conditions, there will be no investment and Comair would have to be wound down," says Mans.
"Employees did not want to take that risk, so they gave us a mandate to sign the collective agreement. If we continue beyond December with the section 189 process, it might mean the monies will not be paid in terms of the rescue plan and staff will continue not to earn salaries."
A spokesperson for the consortium said, because the matter is being heard by the Labour Court on Thursday, they are unable to comment until after the court has ruled.