FMF court application: Real issue in dispute

In a very recent article published by a leading academic and legal practitioner it is incorrectly stated that the FMF’s recent application to the High Court is based on a primary argument that “the parties to a bargaining council are ‘private actors’ to whom the State cannot delegate the ‘substantive power’ of statutory regulation”. The real issue is whether section 32 of the LRA is unconstitutional to the extent that it allows a government official, the labour minister, to extend any collective bargaining agreement between ‘private actors’ to parties or persons in the relevant sector who are not parties to that collective agreement.

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New legal focus on rights of work seekers

FMF research revealed that the system we currently have in South Africa was observed in the United States, New Zealand, Australia and Germany. After the reunification of East and West Germany, the rich western companies colluded to make the cost of business for the smaller, labour-intensive companies high. The US Supreme Court eventually outlawed the practice.

FMF chairman Herman Mashaba said it was a total myth that it was capitalism’s fault that there weren’t enough jobs to go around. He believes that this court case is his fight for those with no voice.

Minister’s invalid extension of private agreement to non-parties

Constitutionality of extending bargaining council agreements

Antimarket fundamentalists offer no employment

Unions are direct and substantial beneficiaries of labour law, which is fine. The FMF, though, has no self-interest in the outcome of the case. Contrary to union rhetoric, most “capitalists” want to have collective bargaining. The issue is whether their deals should be imposed on competitors and the unemployed. Smart unions concerned about declining membership, low wages and the unemployed should support the FMF’s application because more employment will mean more members for them and a “seller’s market” for their labour. Of absolutely no help to the unemployed are the antimarket fundamentalists who offer no employment themselves and vilify people who do.

For whom the bell tolls

Extending bargaining council agreements to non-parties is being challenged in the High Court as being unconstitutional. All citizens should be allowed to seek work and earn money for food and shelter. Will the ANC and COSATU dare to defend the scheme concocted for purely political gain by Prime Minister JC Smuts in 1924 ?

1 Comment

GilesFiles on February 21, 2017 at 2:43 pm

See:
Amcu v Chamber of Mines of SA (CCT87/16) [2017] ZACC 3 (21 February 2017) per Cameron J (Nkabinde ACJ, Froneman J, Jafta J, Madlanga J, Mbha AJ, Mhlantla J and Zondo J concurring) at fn 89

Free Market Foundation v Minister of Labour [2016] ZAGPPHC 266; 2016 (4) SA 496 (GP) concerned a challenge to section 32 of the LRA. In that case, the High Court went further, and considered the possibility that an extension of a collective agreement made in a bargaining council framework could amount to administrative action. The Court found that while the negotiation and conclusion of a collective agreement would not necessarily constitute administrative action, the parties’ request under section 32(1) to the Minister to extend the agreement may constitute administrative action. The Court was inclined to find that PAJA would apply; and if not, the decision would still be subject to rationality and legality review.

Whatever the position in regard to section 32, section 23 extensions entail the exercise of public power. A section 23(1)(d) extension occurs without more upon the conclusion of an agreement that conforms to the provision’s specifications. Differently put, the parties’ employment of the statutory provision by itself entails extension. This entails a public dimension. Unlike extensions under section 32, there is a single rather than a two-step process.

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FMF court application: Real issue in dispute

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