Cosatu again ducks their day in court and delays: FMF bargaining council legal case until 2016
22 September 2015
At the direct and late intervention of Cosatu last week, the FMF has been informed of yet another delay in bringing their constitutional challenge to the mandatory extension of bargaining council agreements - S32 of the Labour Relations Act 1995 (LRA). The date has been postponed from 09 -12 November 2015 to February 22 – 25 2016. This will be almost three years to the day since the FMF launched their legal challenge in March 2013.
S32 is the clause which compels the Minister of Labour to extend private bargaining council agreements across an entire sector to control the unemployed and companies, usually SMEs, which were not party to the negotiations and cannot afford to pay higher wages and offer conditions agreed by larger firms and unions. The FMF seeks to change just one word from “must” to “may”, to allow the minister to apply her mind to what she does, especially concerning the wider socio-economic conditions within an industry, and to think about whether extending an agreement will harm new and existing jobs.
“We are shocked, angry and dismayed by this development,” said businessman Herman Mashaba, who is leading the FMF’s challenge. “Initially I could not believe it. After nearly three years of delaying tactics, subverting the judicial process and blatant contempt for the rule of law, yet again Cosatu is unable to get their act together and get into court for the dates agreed by all sides. Perhaps Cosatu is afraid of taking their case to court and testing the legality of S32”
Mashaba said he was also baffled by the silence of the Minister of Labour. “The FMF case is about fighting for her to be given the power to exercise her executive role. She should also be concerned about the delay in the court hearing".
FMF executive director Leon Louw said, “For nearly three years we have been battling with respondents, including Cosatu, who have done everything they can to delay justice for the unemployed and their beleaguered employers. Their actions suggest that they do not respect the Constitution. Why else would they not want clarity on whether private parties entering collusive agreements should be allowed to force a minister to turn private collusive deals into a laws binding non-colluders? Let the Constitutional Court decide, not Cosatu”.
Mashaba agreed saying, “It appears that Cosatu neither respect nor care for their over eight million destitute unemployed compatriots who are being denied the basic human right to sell their labour and to find dignity in being employed. They neither respect nor care about up to one million small, informal and emerging businesses trying desperately to create wealth, jobs and justice for all”.
“Such delays, although frustrating, do not change the resolve of the FMF to pursue this case all the way to the Constitutional Court. Delaying tactics are unwelcome but will not alter our determination to bring this matter to finality. We owe this to our destitute, unemployed fellow citizens,” he declared.
Louw concluded, “The FMF will put the delay to good use to educate and inform business and labour members of bargaining councils, as well as non-members, about how their freedom to participate in or refrain from centralised collective bargaining is being undermined and sabotaged by their own bargaining councils, perhaps without their knowledge or approval”.
Statement issued by the Free Market Foundation, September 22 2015