A dust-up has been building between SAA’s pilots’ union and the national airline’s owner, the national government. The story below was first published in South Africa a few days ago and attracted quite a lot of attention locally. It is a story worth sharing with a wider audience because pilots around the world are facing major disruptions to their careers. Pilots at South African Airways face additional challenges that compound their situation.
The SAA Pilots’ Association (SAAPA) is challenging what it regards as an unlawful proposal by state-owned flag carrier South African Airways (SAA) when retrenching pilots as part of the restructuring of the airline. SAA has been in business rescue since 5 December last year and only a few weeks ago Finance Minister Tito Mboweni allocated R10.5 billion to implement the rescue plan. Only about 1 000 employees will be retained, including 88 pilots.
In the view of SAAPA, a “race” criterion is being used in the retrenchment process of pilots.
SAA has a collective agreement with its pilots. It deals with retrenchment pay, furlough and the selection criteria of pilots to be retrenched as well as the recall provisions. When an employer retrenches under section 189 of the Labour Relations Act (LRA), the employer must use the agreed selection criteria and the rest of the collective agreement remains binding, according to SAAPA.
SAAPA has tried to negotiate with SAA and its business rescue practitioners on reaching an amendment to the mutual agreement on selection, but the company has insisted that the selection will be aligned to the economically active population figures, according to SAAPA.
“SAA and the rescue practitioners have proposed that only white males be limited to these figures and that, where for instance there are too few black women pilots in SAA, that black male pilots be retained to “fill up the shortfall”, even if that means having a higher percentage than the economically active population of the country,” says Captain Grant Back, chair of SAAPA.
According to SAAPA, SAA has told the pilots that their positions are all redundant. Yet, there will be up to 88 pilot positions in the restructured airline. Of the 88 pilots SAA wants to select only four white male pilots (out of 261 who did not take the voluntary severance package offered) and retain all 39 black pilots as well as some Indian, colored, and white women pilots to “fill in” the total number.
“Whilst SAAPA is supportive of transformation, we cannot allow this discriminatory and unlawful approach to stand,” says Back. “Selection criteria for retrenchment, in terms of the Labour Relations Act have to be fair and objective. Selection based on race is not fair or objective or lawful. In terms of South African labour law an employer cannot dismiss employees based on race.” In the view of SAAPA, the reason SAA is facing “a transformation disaster is due to years of mismanagement and corruption”.
“Pre-Covid 19, the SAA pilot group was the most transformed in any airline in the country by a substantial margin. Conversely, there are almost no black pilots employed by Mango, and there appears to be no employment equity pressure at Mango, nor any intention to change the demographics there. SAA, the rescue practitioners, and the Department of Public Enterprises (DPE) refuse to engage over their different approach to this pilot group,” says Back. “While all of SAA’s pilots face dismissal, Mango pilots are flying,” comments SAAPA.”
SAA has referred a dispute with SAAPA to the CCMA as it seeks the unilateral cancellation of all collective agreements with SAAPA. It wants SAAPA to agree to the cancellation of all the collective agreements but SAAPA has not agreed and this could lead to a lockout of SAA pilots.
In a normal situation, when a company is not in business rescue an operational lockout is the employer’s equivalent of a strike. In a protected lockout the employer is permitted to exclude employees from their workplace and is not required to pay them. The purpose of the lockout is to put pressure on employees to accept the employer’s demands and this would end the lockout. According to SAAPA, in this case, SAA is intending to lock all the pilots out until they agree to a new collective agreement and the new retrenchment conditions and selection criteria.
The pilots have not been allowed to work since the business rescue practitioners mothballed the airline a few weeks ago due to lack of funding. Employees are, therefore, not getting paid currently and have not been paid since April. In the view of Back, it seems that SAA wants to “starve” the pilots out to make them agree to a new collective agreement. “The rescue practitioners have refused to allow pilots to take early retirement – in breach of an agreement – to access their pension funds. The voluntary severance packages were supposed to be paid to employees at the end of August, but no payments have been made to any employees,” states Back.
SAAPA is willing to amend and even entirely remove the current collective agreement and negotiate a new one “if the company acts within the law and pay what is legally owing to the pilots”. “SAA has not put forward any grounds except that it has claimed that the collective agreements are too onerous. However, the parties are still in negotiation over a possible new collective agreement,” says Back.
Of the R10.5 billion Mboweni allocated to SAA in his mini-budget, about R2.2 billion is for voluntary severance and retrenchments at SAA. SAAPA is, however, concerned about SAA aiming for a lockout of the pilot group while the airline is still negotiating the dispute with SAAPA. If necessary, the union will consider applying for an interdict to prevent SAA from locking out its members.
“Despite all of this, the pilots remain committed to try and negotiate a possible new collective agreement and SAAPA is trying to find a lawful way to ensure that some transformational gains are maintained but also that the mismanagement of SAA and the horrific business rescue process is not further prejudicial to the pilots,” says Back. “South African taxpayers should be asking where the new board and new management are that were promised months ago. Questions should be asked of the rescue practitioners as to what action they have taken to recover funds from individuals implicated in forensic reports into corruption at SAA.”