Serious misconceptions about the FMF's legal challenge to the Labour Relations Act have caused misplaced hostility
According to Attorney Craig Kirchmann, Kirchmanns Inc, there have been serious misconceptions about the FMF's legal challenge to the Labour Relations Act (LRA) brought by the FMF in March. These have created a false perception about the true nature of this case, caused a knee-jerk reaction and attracted misplaced hostility from some factions. At this week's media update on the legal case, Kirchmann said "Critics are missing the point. It is not an attack on bargaining councils or collective bargaining or unions. It is not about the minimum wage or a race to the bottom. It is a narrow challenge to amend the law to prevent the minority from dictating to the majority and to give the Minister appropriate discretion to take into account considerations other than sufficient representation".
On 4 March 2013, the Free Market Foundation, led by Chairman Herman Mashaba, filed a constitutional challenge in the Gauteng North High Court to Section 32 of the Labour Relations Act 1995. This clause allows collective agreements on wages and conditions to be extended to employers who were not party to the negotiations. The announcement has been the subject of detailed media, public, trade union and academic commentary and debate.
Kirchmann said "Currently the minister's hands are tied and she does not have the right to apply her mind to whether an extension will promote economic development and social justice and whether the extension will have a negative impact on those without a job. The FMF are asking for the law to be amended to give her that right. It is a small request which will have a major impact on the unemployed."
The FMF believe that some bargaining council (BC) agreements impose inappropriate and unaffordable wages and conditions on smaller employers who consequently reduce their workforce and/ or cannot employ more workers. Often these terms are imposed deliberately by larger employers as a means of minimising competition and keeping out potential new entrepreneurs. Smaller firms tend to be more labour and less capital intensive and can create the jobs which over seven million unemployed South Africans desperately need, if spared BC extensions.
The fact that both unions and BCs receive income from extensions may be a factor in their reluctance to see this challenge be successful. This is at the expense of the poorest and most marginal in society, those not even on the lowest employment rung. The FMF believe that individuals should have the right to decide for themselves at what wage they will accept work that will restore their dignity and allow them to avoid grinding poverty perhaps turning to crime.
Kirchmann made the pertinent point that ministerial discretion had been part of collective bargaining since the 1920s: it was removed in 1995 by the LRA.
During the 20 court days allowed for responses, the Minister of Labour has filed a notice of opposition while attorneys for the ministers of Justice and Constitutional Development have advised they will not be opposing. 15 BCs intend to oppose and South African Commercial Clothing, Textile and Allied Workers Union (SACTWU) is expected to intervene as a respondent. Cosatu has not responded but a notice on behalf of the big five public sector unions has been received despite section 32 not being applicable to them.
The FMF has agreed to requests by a number of respondents for time extensions in which to file answering affidavits. All responses are expected to be filed by Jun/July 2013 so realistically the matter will not be heard in court before late 2013 or early 2014.
Statement issued by Craig Kirchmann and Herman Mashaba, Free Market Foundation, April 26 2013
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