The North Gauteng High Court yesterday (13 August 2013) reserved judgment on whether s32 of the Labour Relations Act, No 66 of 1995 is unconstitutional. This section of the Act empowers the Minister of Labour to extend agreements concluded in a Bargaining Council to non-parties.
According to Faan Coetzee from the Employment practice at Cliffe Dekker Hofmeyr, “The Confederation of Associations in the Private Employment Sector (Capes), with other parties, are applying to court to declare this section unconstitutional and on other grounds apply to have an agreement regulating Labour Broker employees in the industry set aside. The Motor Industry Bargaining Council, Minister of Labour and Numsa, who are parties to the Council, are opposing the application.”
The judgment will have a profound effect on the presence of labour brokers in the motor industry as the agreement, which is the subject of the application, phases out the use of labour provided by labour brokers. The “ban” on labour brokers, as the applicants argued, will be set aside if the applicants are successful with the challenge on the particular agreement.
Freedom Under the Law has launched a similar application against all Bargaining Councils and the Minister to declare S32 unconstitutional. This application is limited to the constitutional challenge and is not yet ready to be heard in Court.
Coetzee notes that both cases hold implications for all bargaining councils. The extension of their agreements is important to the councils and if the Capes application is successful in respect of the challenge to S32 all the bargaining councils whose agreements have been extended will be affected. If the application is successful only in respect of Mibco’s one agreement regulating labour brokers, it will affect Mibco only.
The Capes matter is the first opportunity for the court to consider the constitutionality of s32,” he adds.
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Author: Angela Graham from Cliffe Dekker Hofmeyr. Originally distributed by MyPR.co.za.
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