The two biggest unions at cash-strapped SAA have lodged an urgent court application to order the airline’s business rescue practitioners (BRPs) to pay workers outstanding wages and other employment benefits.
The National Union of Metalworkers of SA (Numsa) and the SA Cabin Crew Association (Sacca) want the labour court to declare the decision by the joint BRPs, Les Matuson and Siviwe Dongwana, to withhold the wages unlawful and unfair.
They are demanding that the airline pay their members three months’ arrear remuneration, a 13th cheque, and a lump sum in respect of a 5.9% wage increase signed in November 2019 within seven days.
SAA has been in business rescue since December 2019 and relies on government bailouts to stay afloat. It was allocated R10.5bn in state funding in October 2020 to implement its business rescue plan.
Louise Brugman, the spokesperson for the BRPs, on Monday said they had received R1.5bn in 2020 and R1.3bn in 2021 of the R10.5bn.
Over the past three years, the government has provided more than R20.5bn of fiscal support to SAA. The unprofitable airline, which has posted more than R18bn in losses since the 2015 financial year, signed a 5.9% wage agreement with the unions in November 2019, after a bruising weeklong industrial action that cost SAA about R52m a day.
The wage agreement, backdated to April 1 2019, was viewed as undermining President Cyril Ramaphosa’s efforts to wean cash-burning state-owned enterprises from the national fiscus.
In her affidavit, Sacca president Zazi Nsibanyoni-Mugambi said given the national lockdown, employees did not, “other than Ters [Temporary Employer/Employee Relief Scheme] monies, receive payment of remuneration as of April 2020”.
SAA resumed domestic air travel for business purposes on June 1 2020 when the country moved to level 3 lockdown. Nsibanyoni-Mugambi said while this removed the defence of supervening impossibility of performance on SAA’s part, “the respondents failed to pay employees remuneration as from June 1 2020 to date”.
She said the BRPs paid employees who had agreed to waive their rights in respect of the balance of the remuneration due to them in December 2020, and refused to pay anything to the applicants’ members.
Attorney Minnaar Niehaus, representing Numsa and Sacca, said the BRPs were in breach of the Companies Act, which he said gives “preferential treatment” to the Labour Relations Act. He said there was no reason SAA had not paid workers’ salaries once funding became available.
Niehaus lashed out at the BRPs for “abuse of power”, saying their demand that workers waive their right to a part of their wages during December was “quite a perverse and cruel one, given the timing of that demand”.
Advocate Andrew Redding, for the BRPs, poked holes in Niehaus’s arguments, saying no case had been made that there had been an infringement of the labour legislation.
He said the settlement proposal for workers to waive their rights to a balance of the remuneration due to them had been made to “all employees equally”. He conceded, however, that Numsa and Sacca members “appear to be entitled to seven months’ pay [from June 2020 to December 2020], a 13th cheque and the 5.9% wage increase … that’s a claim they have not lost”.
“Numsa and Sacca have a gold-standard claim [regarding] wages and conditions [of employment],” said Redding, noting, however, that there had been no infringement of legislation and that employees had not been victimised by the BRP’s actions.
He also shot down an argument by Niehaus that the application was urgent, saying: “An economic need is not an issue of urgency … the urgency is self-created.”
Judge Andre van Niekerk reserved judgment.
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