The Constitutionalisation of Fair Labour Practices in South Africa

Abstract

Ten years into democracy is reason enough to reflect on the work of the Constitutional Court of South Africa. My focus is the constitutional right to fair labour practice. New labour laws passed since 1995 read with the Constitution create a single system of law which substantially supplants the common law. The interpretation clauses in the Constitution, the Labour Relations Act of 1995 (LRA) and the Employment Equity Act of 1998 ensure that effect is given fully to the standards of the International Labour Organisation, to which South Africa was readmitted in 1995. Hence, every worker and employer enjoys rights of freedom of association and collective bargaining and protection against discrimination. Workers are protected against unfair dismissal. All these rights are elevated to constitutional guarantees. They therefore compete on an even plane with other rights, in particular the right to property. A brief overview of the Court's judgments gives insight to a constitutional approach to the interpretation of labour rights. The Court extended labour rights to those excluded by the LRA, namely members of the South African Defence Force. Even though trade unions with minority representation are denied access to conciliation and arbitration under the LRA in order to secure recognition by an employer, the Court has confirmed that they may nevertheless strike for such rights. It has treated the right to strike as both an individual and a collective right even though by definition a strike is concerted action. On job security, it inferred that the right not to be unfairly dismissed means that employees may be transferred without their consent when the business is transferred as a going concern. Affirmative action has been held to be constitutionally authorized. The Court instated a job applicant who was discriminated against because he was HIV positive. The development of the jurisprudence has been mainly positive. Elevating labour rights to human and socio-economic rights ensures a generous treatment of the rights. Never before have so vast a number of workers enjoyed such a wide range of rights. However, adjudication about fundamental rights in labour matters is never easy. For instance, two judges of the same division of the High Court, in cases involving the same parties, issued conflicting judgments, the one holding that there is and the other that there is not a Constitutional duty to bargain that applies to the Minister of Defence. The Constitutional Court itself has adopted the approach that the law is fair to both employers and workers in a way that there are no Labour relations as power relations anticipate that there are underdogs. Yet another case shows that an over-generous interpretation of the constitutional right by, for instance, extending bargaining rights to unrepresentative unions could distort the labour relations model intended by the legislature. Labour legislation represents a delicate, negotiated balance of the contending forces of labour, business and government. Judges should be slow to interfere with that balance. Finally, as generous as the laws are, they do not on their own create employment.