Labour Court dismisses Numsa’s application to halt Comair retrenchments

The Labour Court has dismissed union, the National Union of Metals of SA (Numsa) application to scrap Comair’s retrenchment process, paving the way for the airline to continue to implement its business rescue plan. 

Comair, which operates Kulula.com and British Airways locally, had its rescue plan adopted by creditors in September and foresees that the airline will resume operations in December.

The implementation of Comair’s rescue plan is subject to various matters including it entering a retrenchment process with employees, entering into a collective agreement with the trade unions agreeing to a total reduction of 400 jobs and the collective agreement to agree to a reduction of employee numbers in various categories approved by the airline’s post-rescue consortium of investors. 

In his judgement on Monday, Judge Graham Moshoana held that in the face of retrenchment process, employers are well within their rights  “to agree upfront with an employee or a collective of employees that in the event termination happens for operational reasons a specified amount of severance pay may be paid. The statutory obligation of an employer is to propose a severance pay.” 

Comair entered into a collective agreement with Solidarity and the airline’s pilots association in October following issuing Section 189 notices in September. Although Numsa does not want the court to declare the collective agreement to be dismissed, the union says the business rescue practitioners entered into the collective agreement with a minority of the employees at the airline.

Pilots association is larger 

Numsa argued that Solidarity went on a recruitment drive at the airline to ensure that it became the majority union. Employees who joined Solidarity during the recruitment drive did so out of fear of retrenchment or liquidation of the airline, Numsa said. 

Solidarity has denied these claims, saying that it was acting in the interests of its members. 

At the time of the signing of the collective agreement, Solidarity and the pilots association had a combined membership of 1028, which is more than half of the workforce compared to Numsa’s 574 members.

Based on the numbers, there can be no doubt that Solidarity and the pilots association are the majority union at the airline, Moshoana said. He added that  the argument that the Comair breached Numsa’s majoritarian recognition agreement by allowing Solidarity to engage in a recruitment drive in order to amass sufficient numbers to enable it to extend the collective agreement and thus undermined collective bargaining, has no merit 

 On October 27 notices were given to employees to consult on the conditions of the collective agreement, with the first meeting planned for the October 30. There was one meeting that occurred where Numsa raised objections regarding the process. Following that meeting, the union launched its dismissal application against the retrenchment process. 

Employees who signed the agreement waived their rights to salaries between May and December 1, and further agreed to a reduction in remuneration for 2021, in addition to agreeing to retrenchments.

Numsa had accused Comair of attempting to circumvent the struggling airline’s retrenchment process by entering into a collective agreement with Solidarity and a pilots association. 

Numsa argued that it should not be bound by the collective agreement, the court to declare the Comair’s business rescue practitioners Richard Ferguson and Shaun Collyer have acted in a procedurally unfair manner and that the airline issue fresh Section 189 notices. 

Numsa’s spokesperson, Phakamile Hlubi-Majola said the union is still studying the judgment, while Solidarity’s organiser for evaluation and defence,  Derek Mans described the ruling as a victory for workers. 

“It was of the utmost importance that this agreement remained in place to ensure the survival of the airline and to make it possible for it to start flying again on 1 December 2020. It is thanks to this agreement that the jobs of hundreds of employees are protected, and the airline’s long-term sustainability is protected,” he said in a statement on Monday.