On Tuesday 13 August, the North Gauteng High Court reserved judgment on
whether s32 of the Labour Relations Act, No 66 of 1995 was 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.