The Free Market Foundation (FMF) has approached the North Gauteng High Court, arguing that collective bargaining agreements should not be binding to employers who are not members of bargaining councils.
The foundation’s application to the court is nothing less than a declaration of war on the workers, and against the whole labour relations regime. Their aim is to leave workers defenceless against ruthless exploitation by employers. We must do everything we can to stop them!
The FMF is claiming that the Minister of Labour’s power, under the Labour Relations Act (LRA), to extend bargaining council collective agreements to non-party employers, is unconstitutional and it is seeking a ruling to that effect.
They argue that participants in bargaining councils are “private actors to whom the state cannot delegate powers of statutory regulation without violating the constitution; and, secondly, that the Labour Relations Act, by distorting the provisions of majority rule, permits a minority to coerce the majority into complying with standard sets of terms and conditions of employment”
Numsa could not disagree more and is joining the legal action because, as the largest union in five bargaining councils, it will not sit back and see the workers’ gains from collective bargaining agreements stripped away and our members left defenceless.
Collective agreements, through Section 32 of the LRA, make it much easier to negotiate deals which protect and improve our wages and working conditions. They prevent exploitation, and enable us to turn a downward spiral in wages to an upward spiral, based on skills and productivity improvements and to increased aggregate demand for goods and services.
But if the FMF has its way, collective bargaining agreements will not be worth the paper they are written on. If they are not binding on all employers in the sector they cover, they are in effect nothing more than voluntary agreements. If firms can legally employ workers on lower pay and worse conditions than in the agreement, how can those who did sign the agreement be expected to comply? None of them will sign!
It will lead to a free-for all, where employers can pay whatever wages they can get away with, inevitably leading to a race to the bottom, as firms compete to cut their labour costs, ending with starvation wages, no protection of workers’ human rights and naked exploitation across the sector.
At a time when millions are unemployed, they hope that they will be able to recruit desperate workers prepared to toil for next to nothing, on the basis that ‘any job is better than none’, leading to a ‘race to the bottom, at the end of which all workers are no better off than slaves.
The Congress of South African Trade Unions (Cosatu), of which Numsa is an affiliate, has brought an application to intervene in the main application as a respondent but this does not detract from Numsa’s interest in the application which exists independently from Cosatu’s. While there will of necessity be some overlap between the interests of Cosatu and Numsa in the main application, Cosatu’s intervention will therefore of necessity operate at a broad based level in order to encompass the interests of all its affiliates and their members.
Numsa’s intervention will focus specifically on the bargaining councils of which it is a member and will seek to demonstrate how the extension of the collective agreements concluded in those bargaining councils in terms of Section 32 has facilitated its collective bargaining goals. Our intervention will help the court to deal with the issues before it.
Numsa will oppose the FMF’s main application and make the following broad submissions in support:
The Applicant will need to show that the exemption process – which already provides that collective agreements concluded in bargaining councils may be extended to non-parties in certain circumstances and provided certain requirements are met – is an inadequate or ineffective mechanism to address the prejudice of which it complains. The FMF has not done so and so its constitutional challenge is accordingly misconceived.
No constitutional rights are infringed by the extension mechanism in section 32 of the LRA.
In the event that it may be found that a constitutional right is infringed by the extension mechanism in section 32 of the LRA then Numsa will submit that that section is consistent with international labour standards and with the values that underlie an open and democratic society based on freedom and equality.
We must reject this brutal attack on our fundamental worker rights with the disgust that it deserves. Worker rights are human rights. There can never, ever, be a return to the gross human rights abuses of our country’s apartheid past. Even if the FMF win in the court, they will never win in the streets and factories.
We will turn their champagne into vinegar! This brutal attack on our rights will unleash one of the biggest waves of popular resistance against capital that this country has ever seen.