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DENEYS REITZ ATTORNEYS
28 May 1996
APPLICATION TO CERTIFY
A NEW CONSTITUTIONAL TEXT IN TERMS OF SECTION 71 OF THE CONSTITUTION OF THE
REPUBLIC OF SOUTH AFRICA, 1993
We act on behalf of Business South
Africa.
We enclose herewith our client's objections in compliance with
the Constitutional Court's directive dated 13 May 1996.
Our client seeks
the opportunity to present oral argument to the Court.
DENEYS
REITZ
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IN THE CONSTITUTIONAL COURT OF SOUTH
AFRICA
RE: THE APPLICATION TO CERTIFY A NEW CONSTITUTIONAL TEXT IN TERMS OF
SECTION 71 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA.
1993.
THE OBJECTION OF BUSINESS SOUTH AFRICA
THE OBJECTOR
- Business
South Africa is a confederation of employer and business organisations and
represents the collective economic and social
interests of business in South
Africa. It is recognised by the ILO as the representative of South African
employers both nationally
and internationally. Its members include registered
employer organisations representing employers of every size who bargain
collectively
with unions both through employer organisations and
directly.
THE RELEVANT CONSTITUTIONAL PROVISIONS AND
PRINCIPLES
- The
objection is that clauses 23 and 241 of the Constitution do not comply with
principle XXVIII (read with principle XII) and principle
IV
respectively.
THE GROUNDS OF THE OBJECTION
-
Principle XXVIII requires that :
3.1 the right of employees and employers to engage in collective bargaining
be recognised;
3.2 the right to collective bargaining be protected
3.3 parity be maintained between the collective bargaining rights conferred
upon employees and those conferred upon employers.
- The
requirement that the right to collective bargaining be both recognised and
protected is not satisfied merely by recording a right
in those terms without
protecting those activities whereby employers and employees customarily underpin
and render effective their
right to bargain.
- A
large number of employers engage in collective bargaining with trade unions at
plant or enterprise level, but the right to engage
in collective bargaining by
such individual employers (as opposed to employers’ associations: section
23 (4) (c) ) is neither
recognised nor protected. That omission contravenes
principle XXVIII directly and principle XII indirectly.
- Clause
23(2)(c) confers upon workers the right to strike, and thereby protects their
right to engage in collective bargaining. No
equivalent protection has,
however, been afforded to employers.
- Collective
bargaining is the primary means for resolving the conflicting economic interests
of management and labour. A fundamental
purpose of labour law is to
institutionalise such conflicts by creating structures in which employers and
employees, through a struggle
in which neither obtains an enduring and decisive
advantage over the other, eventually elaborate rules which both are anxious to
protect.
- It
is critical to that purpose that a degree of parity be maintained in the
deployment of power between employer and employee, and
that the State cannot by
legislation create a material imbalance in the remedies available to either side
in furtherance of collective
bargaining.
- Cameron
et al in : The New Labour Relations Act at p.4 correctly identify the
relationship between collective bargaining and industrial
action:
“The guarantor of the institution of collective bargaining is the
threat of industrial action. No threat is effective unless
there is a real
possibility of its eventuality. Strikes and lock-outs are integral features of
collective bargaining and unless they
are afforded protection...the threat
becomes non-existent. Without the potential for pain, there would be no serious
endeavour to
negotiate and conclude a collective settlement.”
- This
approach is and was in 1993 widely accepted by employers and employees, approved
by the Appellate Division, and underlies the
Interim Constitution and principle
XXVIII.
- The
absence of any express reference to the right to strike in principle XXVIII (or
elsewhere) indicates that the legislature considered
that that right was
implicit in the protection afforded to the right to collective bargaining.
Given the even-handed treatment of
employer and employee in principle XXVIII,
the protection of equivalent employer rights must similarly be
implicit.
- In
South Africa the strike takes a number forms, including the total or partial
cessation work, go-slows, intermittent strikes, work
to rule and overtime bans.
It is often supported by sympathy strikes, picketing, protest action, product
boycotts and community
pressure. In other countries, a number of these actions
are either illegal, or simply not employed, and constitute dismissable offences.
In this country therefore the strike is a most formidable weapon capable of
inflicting grievous harm on the employer.
- On
one interpretation, Clause 23 has not only entrenched the right to strike
without entrenching any countervailing employer right,
but has also deprived the
employer of any effective counteraction. On this interpretation, by entrenching
the right to strike without
similarly protecting the right to lock out, clause
23 renders those provisions of the Labour Relation Act, 1995 which grant the
right
to lock out unconstitutional on the ground that they diminish the right to
strike.
- Clause
241(1) recognises and seeks to ameliorate the consequences of that
interpretation. If effective in this, it is contrary to
principle IV, which
provides that the Constitution shall be the supreme law of the land. By
insulating the Labour Relations Act
from the Constitution, section 241(1) seeks
to elevate the former Act above the Constitution. If ineffective, the protection
it purports
to afford is illusory, because the employer rights it protects are
vulnerable to repeal or statutory prohibition after a process
of
consultation.
- By
conferring upon trade unions the right to bargain collectively the Constitution
by implication may impose a duty to bargain upon
employers. But parliament is
free to deprive employers of every course of action or response by which they
might endeavour to advance
their own bargaining positions or resist the demands
of the union. The right to lock out, to close the plan or to implement wage
offers after impasse may be removed. An obligation to pay striking workers may
be imposed. The employer's constitutional right to
engage in collective
bargaining is in those circumstances a hollow right, devoid of
substance.
- Collective
bargaining encompasses both the resistance of another's demands, and the
endeavour to secure compliance with one's own.
Unless the employer's right to
engage supportive action such as the lock out guaranteed in the Constitution,
its ability ever to
secure assent to its demands in the course bargaining, is
precarious. Without the right to engage in such action, collective bargaining
is reduced to passive resistance.
M. J. D. WALLIS S.C.
C. D. A. LOXTON S.C.
A. E. FRANKLIN
K. GOVENDER
COUNCIL FOR THE OBJECTOR
28 May 1996
CERTIFICATION OF
NEW CONSTITUTIONAL TEXT: YOUR REF. MR J. PITMAN: RE BUSINESS SOUTH
AFRICA
I have been asked by the President of the Constitutional Court
to inform you that the following directions have been given in response
to your
letter dated 13 May 1996 written on behalf of Business South Africa:
- Business
South Africa may submit written argument to the Court in regard to clause 23 of
the Constitution.
- Such
written argument shall be brief and succinct and shall be lodged with the
Registrar of the Constitutional Court by not later
than 18 June 1996. It should
deal with the objections to the said clause which may have been lodged with the
Registrar in terms of
paragraphs 2, 3, 4 or 5 of the directions given by the
President of the Constitutional Court on 13th May 1996.
- Upon
receipt of the written argument referred to in paragraph 2 hereof, further
directions will be given indicating whether or not
Business South Africa will be
permitted to present oral argument at the public hearing in amplification of its
written argument.
The date for oral argument has provisionally
been set down for 1 July 1996. You will be advised of further directions in due
course.
MS M. NIENABER
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