Minister Oliphant fights for her right not to think
16 February 2016
Next week on Monday 22 February 2016, the Free Market Foundation’s (FMF) Labour Law Challenge will be heard in the Pretoria High Court 22-25 February 2016 when Minister of Labour, 23 Bargaining Councils (BCs) and the Congress of South Africa Trade Unions (Cosatu) will face the FMF in court to argue the legality of S 32 2 of the Labour Relations Act (LRA) 1995.
The FMF is arguing for the right on the Minister to think for herself and consider the wider socioeconomic implications of extending agreements, to allow the Minister to think before she acts, to consider the implications for the unemployed, small businesses, marginal workers and others of extending private contracts between unions and employers to non-parties. Currently, she has no choice and must. The FMF seeks to change this to “may”.
Craig Kirchmann of Kirchmann’s Attorneys acting for the FMF said there was a wide ranging misunderstanding about the purpose of the case. “This case is not about undermining collective bargaining or bringing about the end of collective bargaining or trade unions. It is about amending one section, S 32 2, to prevent the minister from being compelled to extend agreements to non parties by bargaining councils who do not represent the majority and don’t speak on the part of smaller businesses or employers who cannot afford to pay wages designed for larger companies.
Kirchmann said that before the LRA 1995 was introduced, such ministerial discretion did exist. The Act purposefully removed this ability of a minister to apply her mind. He took issue with the claim it will be a ‘race to the bottom’ saying that legislation exists to ensure fair labour practices are in place.
Kirchmann outlines several of the legal arguments including that a bargaining council is a private actor or entity not a public body accountable to the public yet it seeks to make binding law on nonparties. Public bodies are accountable and their decisions can be challenged but not so with bargaining councils. Also, that BC agreements impact directly on rights of association in that the agreements are arbitrary decisions that directly impact on parties who have consciously elected not to be part of this body. S 32 also impacts on the right to dignity. Research & evidence clearly shows there are people who would prefer to work for lower pay than not work at all.
He questioned the exemption protection argument put forward by opposing parties saying exemptions were notoriously difficult to achieve in practice and that an firm applying for relief had to ask this from the very people who seek to impose this in the first place. “They support the decision so why should they overturn or set aside the agreements for anyone?”
FMF executive director Leon Louw said that this clause had a direct impact on Unemployment, job creation and business development. South Africa has the world’s highest enduring unemployment rate and a stagnating economy. Over half the youth have never been employed. S 32 is a significant clause because it imposes prohibitive costs on vulnerable workers and enterprises; existing jobs are lost and new ones are not created.
“Victory in this case will not change SA’s abysmal unemployment figure overnight but it will bring hope to the 8.7 million who are desperate for a job at any rate of pay”, he said.
Businessman Herman Mashaba spoke at the briefing saying that the media should ask the minister why the case took so long to get to court and why she is defending it when the FMF was on her side and fighting to give her the right to actively help the 8.7 million unemployed.
Mr Mashaba is no longer involved with the legal process going forward. FMF executive director Leon Louw said, “The case was launched in 2013 when Herman Mashaba was Chairman of the FMF Board. He has been a friend and supporter of the FMF for many years. Since the FMF is politically neutral, Mr Mashaba resigned as Chairman when he joined the Democratic Alliance (DA).
As architect and main funder of the case, he agreed to continue his involvement in the case however when Mr Mashaba decided to be a mayoral candidate for Johannesburg, it was agreed by all concerned that he should no longer be involved with or responsible for the case.
The FMF Board and staff thank Mr Mashaba most sincerely for his friendship and support, and wish him well in his political career”.
Statement issued by the Free Market Foundation, 16 February 2016
