Ollis Proposal to amend the Labour Relations Act, Adoption of minutes

Meeting report

Ollis proposal to amend the Labour Relations Act
It was noted that the object of the legislative proposal was to provide for accountability of unions in the event of destruction of property, violence and intimidation by union members. A draft Committee Report had been circulated amongst Members for consideration.

Mr F Bhengu (ANC) referred to point 2 of the report, noting that the Committee Legal Advisor felt that the proposal was in certain ways in conflict with certain provisions of the Constitution. He proposed the report should specifically mention Section 17 and Section 11 of the Regulation of Gatherings Act, 205 of 1993.

Ms J Kilian (COPE) asked if it would be possible to speak to the Legal Advisor, as she would like to engage with him on a few issues. It was important for the committee to look at the status of legislation and constitutional rights, since it would clearly be wrong for the Committee to consider legislation that might be in conflict with the Constitution. It was important to determine whether there was an attempt to limit certain constitutional rights beyond the extent allowable by section 36(1) of the Constitution. The Constitution contained specific rights about freedom of expression, freedom of movement and the right to strike. However, in relation to freedom of expression, the Constitution said that the rights did not extend to propaganda for war, incitement of imminent violence, or advocacy of hatred based on race, ethnicity and. She wanted to discuss these aspects with the Parliamentary legal advisors.

The Chairperson agreed that the Legal Unit should be available for clarification and asked that Adv Rhoda be called.

Ms Kilian mentioned that there were only nine Legal Advisors for the entire Parliament, which was why the Committee was not adequately capacitated, and was at the mercy of departmental officials who often only portrayed their perspective.

Ms P Kopane (DA) agreed that the Legal Advisor should be present. The last paragraph of the legal opinion stated that it was difficult to analyse the constitutionality of the legislative proposal, as it was unclear. If a person with legal background was unsure of the legality of the matter, then the Committee had difficulty in proceeding. The Parliamentary Legal Advisors had noted that similar matters were before the Constitutional Court, and in this case she thought that the Committee should not attempt to finalise the matter now as the outcome of that decision would have a bearing.

The Chairperson also needed to know how the Committee should handle a matter that was before the Constitutional Court, and whether it would be necessary to wait for the Constitutional Court’s decision.

Mr A van der Westhuizen (DA) felt that Mr Ollis would be better equipped to answer that question. Often, when a court gave a ruling, it also gave the reasons for the ruling and that might offer clarity for the Committee in terms of drafting a proposal that would pass a Constitutional test. He suggested that Mr Ollis be asked if he would be prepared to wait for the Constitutional Court ruling. In the meantime, the legal advisors should analyse the ruling, noting what wording should be avoided, and that the matter should then be forwarded to the relevant portfolio committee for it to consider the merits of the proposal.

The Chairperson said the issue was still whether to wait for the position of the Constitutional Court. This was an area that would also be important for the Rules Committee.

Mr Bhengu supported informing the Rules Committee, and proposed that the matter be deferred pending finalisation of the Constitutional Court.

Ms Kilian needed clarity as to whether the issue before the Constitutional Court was based on exactly the same grounds. If so, the Committee could not proceed, because Rule 67 stated that no Member should refer to any matter on which a judicial decision was pending.

The Chairperson noted that Adv Gary Rhoda had arrived, and said once he had provided a legal opinion he should be present at the meetings, to give clarity.

Adv Gary Rhoda, Parliamentary Legal Advisor, said he wrote the legal opinion on 29 June 2011. The matter before the Constitutional Court dealt with the Regulation of Gatherings Act, and not with the Labour Relations Act, but it had implications for the Labour Relations Act because it dealt specifically with matters curtailing the right to strike and the right of protest action. There was a substantial difference between protest action and striking. Striking was just a cessation of work or working hours, but could eventually become protest action if it was violent. The matter before the Constitutional Court dealt specifically with protest action, the right to strike and the right to protest action under the Labour Relations Act. The implication of the case, although it was based on the Regulation of Gatherings Act, was that it could also have implications on the right to strike.

Adv Rhoda recommended that the Committee should wait for the outcome of the Constitutional Court case. The two parties, SATAWU and Ms Garvis, had taken the issues that were concerned with the constitutional right to strike to the Constitutional Court, whilst all other issues in the case were still with the Supreme Court of Appeal.

Mr Ollis asked what the implications were of all other matters being left with the Supreme Court of Appeal. He wondered if SATAWU would accept a decision of that court should it find against SATAWU on the appeal and award financial damages.

Adv Rhoda responded that it seemed so. The issues referred to the Constitutional Court related to the right to strike under the Labour Relations Act, which was linked to the right to strike under the Constitution, as well as issues around the control of public administration under the right to strike and protest under the Regulation of Gatherings Act, and how that curtailment could impact on the Constitutional right to strike. It seemed that SATAWU accepted that there were costs, and was willing to pay these, pending the outcome of the Constitutional Court matter.

Mr Ollis said that was extremely significant. Unless the Constitutional Court ruled otherwise, this effectively meant that a collective may be made to pay punitive damages for individuals in the organisation and SATAWU did not appeal that. That seemed to him to be going in the right direction, because it seemed to accept that a union could be sued and damages recovered for the behaviour of individual members of the union who damaged cars or broke into shops.

The Chairperson thanked Adv Rhoda and Mr Ollis. The point before the Committee was whether Rule 67 prevented a Member from referring to a matter that was still pending before a court.

Adv Rhoda explained that there was a distinction between Rule 67 and general cases of sub judice. Rule 67 said no Member shall refer to any matter on which a decision was pending, which meant that any mention at all of that matter, even by a question to a Minister, was in conflict with that Rule. Whilst he thought that Rule 67 was too restrictive, it nonetheless stood, and the Committee was bound by it.

The Chairperson said the term sub judice was used too loosely.

Ms Kilian said it was always interesting to look at rights and responsibilities and the balances within the Bill of Rights. During past strike actions, shops had been looted and cars were damaged, so rights under section 12 of the constitution, relating to freedom and security of persons – especially section 12(1)(c), which was worded ‘to be free from all forms of violence from either public or private sources’ – was affected. The State was responsible to ensure a balance of rights between the right to strike, as referred to in Section 17, and to picket, and the rights of the general public. It must also be remembered that during strike action, people were intimidated, and their right to freedom of expression under section 16 could be threatened. She reiterated that the right to freedom of expression did not include putting out war propaganda or incitement to imminent violence, and this was often an element of a strike and picket action. It was important to look at the rights of other people who were affected by strikes, and those who did not want to march but were intimidated to do so.

Ms Kilian noted Adv Rhoda’s reference to certain court rulings and provisions of legislation, but said that only the Constitutional Court could make a final determination on the constitutionality of something, and on the rights of people.

Adv Rhoda responded that it was very difficult to weigh up rights contained in the Constitution, including the right to strike, the right to freedom from violence, and the right to freedom of expression. There were specific procedures to see if there was a less restrictive means of curtailing the one right over the other, and a number of constitutional tests were applied when weighing up those rights. The reason for his opinion was that the Labour Relations rights protected in the Constitution dealt specifically with two parties, employer and employee, as indeed did all labour relations legislation. The moment a third party was involved, the labour Constitutional rights were being opened up. In the Garvis matter, the third party essentially constituted the people whose property was destroyed, and if they were permitted to curtail the right to strike, that had the potential to affect a section that only was being opened up through interpretation of words. In the case of Garvis there was a third party, which was a range of people whose property was destroyed, and allowing them to curtail the right to strike which was essentially between employer and employee, could be interpreted as contrary to the Constitution. He reminded the Committee, however, that the specific matter before the Constitutional Court was brought under the Regulation of Gatherings Act, and not under the Labour Relations Act, and the final outcome would also have to be considered in that light.

The Chairperson said Members seemed to be agreed that the matter should stand over until the Constitutional Court had given its ruling, and asked the Parliamentary Legal Unit to track that, and refer the matter back for a decision once the ruling was made. He stressed that in future, all sides of the argument must be presented.

Mr van der Westhuizen suggested that when the Committee received the Constitutional Court’s opinion, the Legal Unit must advise as to where it might be appropriate to bring the amendments.

Ms Kopane asked whether Adv Rhoda could consult with constitutional law experts, when he realised that constitutional issues were raised.

Adv Rhoda responded that he did take that into consideration. He clarified that where two rights contained in the Constitution had to be balanced, it was necessary to apply onerous and distinct constitutional tests to achieve a balance, but from 2011 onwards most of the decisions had been split almost equally when it came to the balancing of rights contained in the Constitution.

Ms Kilian wondered if the draft report should not be re-worded. Rather than saying that the proposal was found to have conflicts with certain provisions of the Constitution, she suggested that it note that:  ‘having consulted the Legal Advisor he indicated that this was a very complex constitutional matter, and that only ultimately the Constitutional Court could determine on the rights and balance of rights as contained in the Fundamental Bill of Rights’. She thought that this was more correct that trying to interpret the legal opinion.

Strategic planning workshop
The Chairperson noted that the next meeting on 5 June would be a strategic planning workshop at an institution at Stellenbosch, and transport would be provided where required. The morning session would begin at 9am and be dedicated to assisting resource personnel who were assisting the Committee to interpret legislation relating to the Committee’s mandate, international trends, and the mandate of the Committee in terms of the Parliamentary rules. In the afternoon, Committee Researchers would present progress reports for 2010/11, and evaluate whether the Committee had met the targets set in 2009 for the five-year plan. That five-year plan would also then be discussed and evaluated.

The Committee would then discuss the concept paper for the study tour to Canada, together with the initial intention to have a Petition Bill. The workshop would conclude by mapping the remaining issues of focus in the five-year plan.

The last Committee meeting of the quarter would be on 13 June. The Committee would depart on its study tour on 16 June and return on 23 June.

Adoption of minutes
The minutes of Committee meeting held on 23 May 2012 were adopted subject to amendments.

The meeting was adjourned.