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Shopsteward Volume 27 No. 2

COSATU Media Monitor COSATU Media Monitor COSATU Media Monitor

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Media Centre  |  COSATU Press Statements

COSATU DEFENDING THE CONSTITUTION

Business S.A. the National Party, the Democratic Party and the Inkatha Freedom Party, all parties with a track-record of opposition to the advancement of workers interests, are appealing to the Constitutional Court to find that South Africa's working people have been given too many rights under the new Constitution and that for this reason the new Constitution should be found not to comply with the principles agreed upon during the Codesa negotiations.

COSATU is confident that the labour-related aspects of the new Constitution are in accordance with the Constitutional Principles and has instructed legal Counsel to defend these aspects of the Constitution. COSATU rejects the attempt by minority parties, who found insufficient support for their views in the democratically elected Constitutional Assembly, to use the certification procedure simply to take a second- bite at the cherry- hoping to misuse the certification process for political ends.

The objecting parties have focused their attack on three areas;

  • the exclusion of a lock-out right,
  • the entrenchment of collective bargaining for employers organisation and
  • a clause which deals with the validity of the Labour Relations Act in terms of the interim constitutions. and requires a process of consultation with business and labour before it may be amended (s241).

The legal arguments are summarised below in broad terms.

While Business South Africa is amongst the objectors on the point it is noteworthy that significant business constituencies, namely lack business in the form of FABCOS( a BSA affiliate) and NAFCOC have made it clear that they do not support BSA'S application to oppose the certification of the constitution.

NO RIGHT TO LOCK-OUT.

The objectors argue that a right to lock-out should be included in the new Constitution on the basis that it is necessary to enforce their right to collective bargaining (guaranteed in terms of Principle 28), that it is required in terms of the right to equality (Principle 5), that it is required in terms of the guarantee that all "universally accepted fundamental rights" would be included and that " due consideration" would be given to the rights in the interim constitution (Principle 2)

COSATU's response is that none of the Principles placed an obligation on the Constitutional Assembly to include a lock-our right.

Principle 28's guarantee to employers of their right to collective bargaining is included in the constitution at s23(4). COSATU reject the employers' assertion that they require the right to lock-out workers as part of their right to collective bargaining.

Principle 5's guarantee of equality is relevant to the relationship between "men and women and people of different races". Therefore, it cannot in law be used as a basis for justifying a lock-out right in order to bring equality between workers and bosses.

Secondly, Principle 5 is a guarantee of substantive, not merely formal, equality. In other words, to give employers the right to lock-out merely because workers have been given the right to strike would have the effect of entrenching the power of bosses in the name of equal treatment. It would have the effect of neutralizing the impact of the right to strike which was recognised in order to bring creater parity in the worker- employer relationship in the first place.

Principle 2's guarantee that "universally accepted fundamental rights" should be included in the Constitution has not been breached because the lock-out is not a universally accepted fundamental right. In fact, very few countries include a right to lock-out in their Constitution's and, unlike the right to strike, no international legal instruments elevate it to the status of a universally accepted right.

Secondly, Principle 2's guarantee that "due consideration" would be given to the rights contained in the Interim Constitution has also been fulfilled. The Constitutional Assembly's records of the deliberations over, and ultimate rejection of, a lock-out right bear testimony to the process of "due consideration ". Also it should be born in mind that the lock-out was treated as something less than a right in the Interim Constitution, i.e. it was treated as a "recourse" which should not be impaired.

COLLECTIVE BARGAINING FOR EMPLOYERS" ORGANISATION.

The objectors argue that, in terms of Principle 28, individual employers should be guaranteed the right to collective bargaining and that the right should not be granted to employers' organisations.

COSATU responds to this argument by saying that the correct interpretation of Principle 28 is that it grants collective bargaining rights to employers as a class and employees as a class. Secondly, the fact that individual employers can assert their right to collective bargaining based on the guarantee of fair labour practices adds weight to the contention that Principle 28 should be interpreted to guarantee collective bargaining between trade unions and employers' organisations at a centralised level.

If Principle 28 were to be destructively interpreted as only providing the right to individual employers then centralised bargaining would be jeopardised as individual employers would be able to opt out of centralised bargaining on the basis that they had a right to bargaining at an individual level. On the other hand, protection of collective bargaining for employers organisations ( at a centralised level) does not preclude bargaining at the level of the individual level. On the other hand, protection of collective bargaining for employers organisations (at a centralised level) does not preclude bargaining at the level of the individual employers.

S241 Protection of the labour Relations Act (LRA) and the procedure of its amendment.

The objectors argue that this section breaches Principle 4 which states that the "Constitution shall be the supreme law of the land" in that the section immunises the LRA from constitutional scrutiny. It is ironic that the objectors should raise problems with s241 as it was inserted in the Constitution as a result their insistence that the lock- out provisions in the LRA would be vulnerable to a constitutional challenge if there was no lock-out right in the Constitution, hence the necessity to include a clause (s241) designed to protect the LRA.

COSATU's response to this argument is that as it is the constitution itself which is defining its scope and ambit the clause does not undermine the constitution's supremacy. In effect, all that the Constitution is setting out to do through s241 is to give its blessing to a set of provisions in the LRA until such are amended through a process of consultation. Such a mechanism is not unprecedented as almost identical provisions dealing with labour relations were included in the Interim Constitution at s33(5).

An alternative argument is that s241 means that the provisions of the LRA which are constitutionally valid in terms of the Interim Constitution "remain valid", but that those that are not valid could be subject to Constitutional view.

    COSATU also rejects
  • add point about their attempt to denounce the LRA.

Nowetu Mpati COSATU Head of Communications

8 July 1996

Tel: + 27 + 11 + 339-4911 Fax: + 27 + 11 + 339-2281 E-mail: nowetu@cosatu.org.za

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