... but claims vic­tory for donors

CityPress - - Business - DEWALD VAN RENSBURG dewald.vrens­burg@city­press.co.za

The Free Mar­ket Foun­da­tion’s heav­ily pub­li­cised court chal­lenge against the ex­ten­sion of bar­gain­ing coun­cil wage deals was quashed this week. De­spite a full Bench of three high court judges dis­miss­ing the foun­da­tion’s ar­gu­ment as “wholly wrong” and “fun­da­men­tally mis­con­ceived”, the lib­er­tar­ian think-tank claimed vic­tory – be­cause the judges also iden­ti­fied all the ac­tual ways that th­ese wage deal ex­ten­sions, which set wages for hun­dreds of thou­sands of for­mal sec­tor work­ers, could be legally chal­lenged.

The judg­ment gave com­pa­nies the weapons they needed to get out of col­lec­tive bar­gain­ing, claimed Leon Louw, the foun­da­tion’s ex­ec­u­tive di­rec­tor.

In ef­fect, the judg­ment is a guide for em­ploy­ers and in­ter­est groups such as the foun­da­tion on how to prop­erly at­tack fu­ture wage deals (see be­low).

This fol­lows failed at­tempts to do ex­actly that by, among other or­gan­i­sa­tions, the Na­tional Em­ploy­ers’ As­so­ci­a­tion of SA (Neasa), which has been try­ing to get out of wage deals at the Metal and En­gi­neer­ing In­dus­tries Bar­gain­ing Coun­cil for years.

Ger­hard Papen­fus, the as­so­ci­a­tion’s CEO, also called the judg­ment a “vic­tory”.

It would “ab­so­lutely” get used dur­ing the next wage talks in the sec­tor, he told City Press. “For us, it is a break­through.” Louw said he wanted the foun­da­tion to make a re­quest of its donors to fund an ap­peal, which he said could cost up to R10 mil­lion.

The case thus far has cost the foun­da­tion about R4 mil­lion, which was cov­ered by donors, he told City Press.

It was ini­tially funded and pro­moted by busi­ness­man Her­man Mashaba, who has since joined the DA and cut for­mal ties with the foun­da­tion.

This week’s judg­ment was a vic­tory for the donors – all of them for­mal em­ploy­ers – but did very lit­tle for the un­em­ployed, said Louw.

Get­ting them to fund an ap­peal would mean get­ting them to give money, even though they would not gain much more, he said.

“All we want is for the in­ter­ests of non-par­ties to be pro­tected. The judg­ment does not do that suf­fi­ciently yet,” Louw said.

The foun­da­tion’s rea­son­ing is that the coun­cils im­pose high wages that sti­fle small com­pa­nies and keep jobs from get­ting cre­ated at lower rates of pay.

Ac­cord­ing to Louw, the judg­ment clar­i­fies that the law al­lows for chal­lenges that “ev­ery­one as­sumed it did not”. The big win­ners were “big busi­ness”, Louw said. Large and small em­ploy­ers can now sim­ply re­sign from their bar­gain­ing coun­cil to re­duce its rep­re­sen­tiv­ity to be­low 50%. Then they can chal­lenge the ex­ten­sion of the coun­cil’s wage deals from the out­side us­ing this week’s judg­ment. “I al­ready got a call from a big com­pany, say­ing they will now pull out of their bar­gain­ing coun­cil,” he told City Press on Fri­day.

The case got off the ground in 2013, when the foun­da­tion first filed court papers, mak­ing an ex­ten­sive at­tack on the con­sti­tu­tion­al­ity of wage deal ex­ten­sions.

Since then, it had aban­doned most of its orig­i­nal case, leav­ing the North Gaut­eng High Court to con­sider one main ar­gu­ment, which was dis­missed. The long list of re­spon­dents in­cluded labour fed­er­a­tion Cosatu, the Na­tional Union of Me­tal­work­ers of SA, bar­gain­ing coun­cils and Labour Min­is­ter Mil­dred Oliphant.

Many of them asked the judges to slam the foun­da­tion with a puni­tive cost or­der, on the grounds that it had wasted their time and le­gal ex­penses by drop­ping most of its ar­gu­ments along the way and be­ing wrong on its re­main­ing one.

How­ever, the judges this week praised the foun­da­tion’s Ad­vo­cate Martin Brassey SC for the “el­e­gant and ad­mirable in­ge­nu­ity” of his ar­gu­ments.

“By com­pelling the de­bate in the way it did, the ap­pli­ca­tion in its re­sult has use­fully de­mar­cated the pa­ram­e­ters of power and ad­min­is­tra­tive jus­tice in the leg­isla­tive scheme gov­ern­ing col­lec­tive bar­gain­ing at sec­toral level,” read part of the judg­ment.

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