Expect constitutional challenge from labour

For the first time since 1996, when the current labour dispensation came into effect, there is now a real likelihood that government will face a constitutional challenge to all if not a substantial portion of the amendments to the Labour Relations Amendment (LRA) Bill, limiting the right to strike, and the introduction of the National Minimum Wage (NMW) Bill.

This challenge will probably come from the South African Federation of Trade Unions (Saftu). The federation has demanded the scrapping of these pieces of legislation as they "legitimise a poverty minimum wage and undermine workers' and trade unions' independence and democratic rights".

On 29 May the National Assembly passed the Basic Conditions of Employment Amendment (BCEA) Bill, the LRA Bill and the NMW Bill. These bills will now go to the National Council of Provinces for concurrence. The bills are unlikely not to be passed by the council. 

To address violence and prolonged strikes and to find ways of strengthening and promoting- collective bargaining, the LRA Bill, 2017 seeks to amend the Labour Relations Act, 66 of 1995. 

The amendments seek, among others, to provide that the registrar of labour consider the extension of collective agreements to non-parties, with the minister no longer assuming such role. Furthermore, in terms of picketing arrangements, the bill amends the Labour Relations Act in various other ways. The bill therefore has a strong focus on easing collective bargaining and regulating industrial action. 

The NMW Bill sets a minimum wage of ZAR20 per ordinary hour worked and will apply to all workers, although employees of the South African National Defence Force, the National Intelligence Agency, the South African Secret Service and volunteers are excluded. 

Farm workers, domestic workers, learners employed in terms of the Skills Development Act and workers on expanded public works programmes have different minimum hourly rates, and these will be applicable from a date to be fixed by the president. 

According to the government, the NMW Bill will "advance economic development and social justice by improving the wages of the lowest-paid workers, protecting them from unreasonably low wages, promoting collective bargaining and supporting economic policy".  

It will also "ensure that the pervasive, entrenched exploitation of workers in various sectors of the economy is put to a stop". 

The BCEA and the Labour Relations Act are being amended. The amendments to the BCEA, among others, seek to repeal provisions dealing with sectoral determinations and to provide for daily wage payments applicable to certain employees to bring the BCEA in line with the NMW Bill. 

According to Saftu, the Department of Labour ignored the submission it made to the portfolio committee and it believes that the department was "hellbent on pushing through its own policies and ignoring any contrary views". 

Saftu demands a "living" minimum wage be introduced "which will rescue all workers from poverty and enable them to live a decent life and become fully part of the country's economy". 

There remain key areas of disagreement, which have been highlighted by the strike on 26 April, in which the unions have made it abundantly clear that they are not in agreement with some of the proposed amendments, specifically in relation to the holding of compulsory strike ballots, new picketing rules and the extension of the period of conciliation, which may make going out on strike more difficult. 

A constitutional challenge can easily take two to three years before it is finalised. This will leave uncertainty around changes to labour laws, which is undesirable. 

Saftu flexed its muscle on 26 April when it had its first protest against the minimum wage. The federation showed that it has significant support and it will maintain its momentum by taking the government to the Constitutional Court to challenge the amendments.

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