IN THE GAUTENG NORTH HIGH COURT
(HELD AT PRETORIA)
Case No: 13762/2013
In the matter between:
FREE MARKET FOUNDATION Applicant
and
THE MINISTER OF LABOUR 1st Respondent
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT 2nd Respondent
THE BARGAINING COUNCILS LISTED IN
ANNEXURE ‘A' 3rd to further Respondents
NOTICE OF MOTION
TAKE NOTICE THAT the abovenamed Applicant will make application, on a date to be determined by the Registrar of the above Honourable Court, for an order in the following terms
1.
1.1. Declaring that s 32(2) of the Labour Relations Act 66 of 1995 (‘the LRA') conflicts with the Constitution of the Republic of South Africa 100 of 1996 (‘the Constitution') to the extent that -
1.1.1. it gives a bargaining council, which comprises mere private actors, a power (provided the formal requirements of subs (3) are satisfied) to secure, by means of a collective agreement contemplated by s 32, the imposition of binding obligations on employers and employees who are not members of parties to the council;
and/or
1.1.2. it operates in the absence of a substantive discretion, exercisable by the Minister or other repository of state power in the interests of the public or a sector of the public, to decline a request by a bargaining council to make a collective agreement contemplated by s 32 binding on employers and employees who are not members of parties to the council.
1.2. Substituting the word ‘must' in s 32(2) with ‘may'.
2.
2.1. Declaring to be unconstitutional the provisions of s 32 of the LRA that permit the support enjoyed before a bargaining council agreement will be extended by the Minister to be determine by reference to principles subversive of true majoritarianism, being -
2.1.1. Subsection (1)(b), which treats the size of consenting employers rather than their numerical strength as the applicable determinant;
2.1.2. Subsection (3)(c), which likewise treats the size of consenting employers rather than their numerical strength as the applicable determinant;
2.1.3. Subsection (5), which permits promulgation by the Minister in circumstances where the parties to the agreement are merely ‘sufficiently' representative.
2.2. Replacing -
2.2.1. the words ‘employ the majority of employees employed by' as they appear in subs (1)(b) with the words ‘constitute the majority of' so that the provision will read ‘one or more registered employers' organisations, whose members constitute the majority of the members of the employers' organisations that are party to the bargaining council, vote in favour of the extension' ;
2.2.2. the words ‘be found to employ the majority of all the employees' as they appear in subs (3)(c) with the words ‘constitute the majority of the employers' so that the provision will read ‘the members of the employers' organisations that are parties to the bargaining council will, upon the extension of the collective agreement, constitute the majority of the employers who fall within the scope of the collective agreement;'
2.3. Deleting s 32(5).
3. For costs of suit
4. For alternative relief.
TAKE NOTICE FURTHER THAT the attached affidavits of Herman Mashaba, Neil Andrew Rankin and Michael Craig Kirchmann and annexures thereto will be used in support of this application.
FURTHER TAKE NOTICE THAT the applicant has appointed the offices of Kirchmanns Inc, at the address mentioned below, at which it will accept service of all notice and process in these proceedings.
FURTHER TAKE NOTICE THAT if you intend to oppose the relief sought in this notice of motion, you are required:
(a) to give notice of your intention to oppose the relief sought in the notice of motion within 10 (ten) court days of service of this application upon you;
(b) to deliver your answering affidavit, if any, within 20 (twenty) days after delivery of the Notice of Intention to Oppose;
(c) to appoint in such notification as referred to in paragraph (a) above an addressed referred to in rule 6(5)(b) at which you will accept notice and service of all documents in these proceedings.
FURTHER TAKE NOTICE that if no notice of intention to oppose the relief sought in this notice of motion is delivered within the time period, this application will be enrolled for hearing on the unopposed roll on the first available date that the Registrar of this Honourable Court is able to allocate for that purpose.
KINDLY enrol the matter for hearing accordingly.
Dated at Johannesburg on this the 4th day of March 2013.
KIRCHMANNS INC
c/o Edelstein Bosmann
220 Lange Street
Nieuw Muckleneuk
Pretoria
TO:
THE REGISTRAR OF THE ABOVE HONOURABLE COURT
PRETORIA
AND TO:
THE MINISTER OF LABOUR
1st Respondent
c/o State Attorney
Ground Floor, SALU Building
316 Thabo Sehume & Francis Baard Street
Received copy hereof on this day of MARCH 2013
For: State attorney
THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
2nd Respondent
c/o State Attorney
Ground Floor, SALU Building
316 Thabo Sehume & Francis Baard Street
Pretoria
Tel: (
Received copy hereof on this day of MARCH 2013
For: State attorney
THE BARGAINING COUNCILS LISTED IN ANNEXURE ‘A'
3rd to further Respondents
ANNEXURE A: 3RD AND FURTHER RESPONDENTS
|
|
Name |
Head office |
|
3 |
Motor Industry Bargaining Council (National) LR 2/6/6/1 |
257 Kent Avenue, Randburg, 2124 |
|
4 |
Bargaining Council for the Building Industry (Bloemfontein) LR 2/6/6/9 |
Boudustria Building, 101 (A) Zastron Street, Bloemfontein, 9301 |
|
5 |
Building Industry Bargaining Council (Kimberley) LR 2/6/6/10 |
2nd Floor, MBA Building, 20 Currey Street, Kimberley, 8301 |
|
6 |
Building Industry Bargaining Council (Southern and Eastern Cape) LR 2/6/6/13 |
F.G. Black Building, 169 Haupt Street, Sidwell, Port Elizabeth, 6001 |
|
7 |
Building Industry Bargaining Council (Cape of Good Hope) LR 2/6/6/14 |
133 Voortrekker Road, Bellville, 7530 |
|
8 |
Building Industry Bargaining Council (East London) LR 2/6/6/17 |
7-9 Stephenson Street, East London, 5201 |
|
9 |
Building Bargaining Council (North and West Boland) LR 2/6/6/18 |
162 Durban Street, Worcester, 6850 |
|
10 |
Bargaining Council for the Diamond Cutting Industry (SA) LR 2/6/6/24 |
3rd Floor, 216 Fox Street, Johannesburg, 2001 |
|
11 |
Furniture Bargaining Council LR 2/6/6/158 |
5th Floor, Rennie House, 19 Ameshoff Street, Braamfontein, 2017 |
|
12 |
Bargaining Council for the Furniture Manufacturing Industry of the Western Cape LR 2/6/6/32 |
Furniture Industry House, 19 Kent Street, Salt River, 7925 |
|
13 |
Bargaining Council for the Furniture Manufacturing Industry, KwaZulu/Natal LR 2/6/6/33 |
Furniture Industry Centre, 1st Flr, 36 Dullah Omar Rd, Durban, 4001 |
|
14 |
Bargaining Council for the Furniture Manufacturing Industry of the Eastern Cape LR 2/6/6/34 |
Chamber House, 22 Grahamstown Road, North End, P.E., 6001 |
|
15 |
Bargaining Council for the Furniture Manufacturing Industry of the South Western Districts LR 2/6/6/35 |
Furniture Industry House, 19 Kent Str, Salt River, 7925 (Cnr Queen & Pitt Str, Outeniqua BLD, Knysna, 6570 |
|
16 |
Bargaining Council for the Hairdressing Trade, Cape Peninsula LR 2/6/6/36 |
6th Flr, Cape Chamber House, 19 Louis Gradner Str, Foreshore, Cape Town, 8001 |
|
17 |
Hairdressing and Cosmetology Bargaining Council KwaZulu-Natal LR 2/6/6/37 |
Office 84-93 Davenport Square, 89 Helen Joseph Road, Glenwood, 4001 |
|
18 |
Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare LR 2/6/6/39 |
Suite 1, 3rd Flr, Burnetta Centre, cnr Grosvenor & Burnett Streets, Hatfield, 0083 |
|
19 |
Hairdressing and Cosmetology Services Bargaining Council (Semi-National) LR 2/6/6/40 |
15 Edward Street, Roodepoort, West Rand, 1724 |
|
20 |
Metal and Engineering Industries Bargaining Council (National) LR 2/6/6/41 |
Union Corporation Building, 1st Floor, 77 Marshall Str., JHB, 2001 |
|
21 |
Bargaining Council for the Jewellery and Precious Metal Industry (Cape) LR 2/6/6/42 |
Suite 404, Boland Bank Building, 18 Lower Burg Street, Cape Town, 8001 |
|
22 |
Bargaining Council for the Laundry, Cleaning and Dyeing Industry (Cape) LR 2/6/6/43 |
Suite 107, Premiere Centre, 451 Main Rd, Observatory, 7925 |
|
23 |
Bargaining Council for the Laundry, Cleaning and Dyeing Industry (Natal) LR 2/6/6/45 |
1st Flr, James Bolton Hall, 127 Magwaza Maphalala Str, (Gale Str), Umbilo, Durban, 4001 |
|
24 |
National Bargaining Council of the Leather Industry of South Africa LR 2/6/6/46 |
Suite 422, 4th Floor, 320 West Street, Durban, 4001 |
|
25 |
Bargaining Council for the Meat Trade, Gauteng LR 2/6/6/136 |
72 A Oxford Road, Riviera, Johannesburg, 2193 |
|
26 |
National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) LR 2/6/6/55 |
Road Freight House, 8th Floor, 31 De Korte Street, Braamfontein, 2001 |
|
27 |
National Bargaining Council for the Sugar Manufacturing and Refining Industry LR 2/6/6/65 |
170 Flanders Drive, Mount Edgecombe, 4300 |
|
28 |
Bargaining Council for the Restaurant, Catering and Allied Trades LR 2/6/6/68 |
2nd Floor, No. 1 Rissik Street, Penmore Towers, Johannesburg, 2001 |
|
29 |
Bargaining Council for the Food Retail, Restaurant, Catering & Allied Trades LR 2/6/6/69 |
Office 403, 4th Flr, MBA Building,527 Stanza Bopape str, Arcadia, Pretoria, 0083 |
|
30 |
South African Road Passenger Bargaining Council (SARPBAC) LR 2/6/6/129 |
1st Flr, Stone House, Stonefountain Terrace, 95 Klipfontein Rd, Rondebosh, 7700 |
|
31 |
Motor Ferry Industry Bargaining Council of South Africa (National)LR 2/6/6/152 |
Tokiso Dispute Settlement (Pty) Ltd, The Atrium, 10th Floor,41 Stanley Avenue , Milpark , Johannesburg , 2193 |
|
32 |
Bargaining Council for the Canvas Goods Industry (Witwatersrand & Pretoria) LR 2/6/6/19 |
Ground Floor, 14 Nugget Street, City and Suburban, JHB, 2001 |
|
33 |
Bargaining Council for the New Tyre Manufacturing Industry (National) LR 2/6/6/78 |
Chamber House, 22 Grahamstown Road, Port Elizabeth, 6056 |
|
34 |
Bargaining Council for the Grain Industry (National) LR 2/6/6/90 |
Ground Floor, Agriseta House, 529 Belvedere Street, Arcadia. 0083 |
|
35 |
Bargaining Council for the Contract Cleaning Services Industry (Kwazulu-Natal) LR 2/6/6/91 |
15/21 Woodford Grove, Stamford Hill, 4001 |
|
36 |
Transnet Bargaining Council (National) LR 2/6/6/92 |
7-4th Avenue, Cnr Fifth & River Streets, Houghton Estate, JHB, 2198 |
|
37 |
National Bargaining Council for the Electrical Industry of South Africa LR 2/6/6/128 |
9th Flr, The Liberty, 17 Wolmarans Str, (between Simonds & Biccard Str) Braamfontein, 2001 |
|
38 |
National Bargaining Council for the Chemical Industry LR 2/6/6/137 |
5 Hollard Street, Marshalltown, Johannesburg, 2107 |
|
39 |
National Bargaining Council for the Wood and Paper Sector LR 2/6/2/148 |
Braam Fisher Towers, 20 Albert Street, 6th Floor, Johannesburg, 2001 |
|
40 |
Bargaining Council for the Fishing Industry (National) LR 2/6/6/149 |
Picbel Centre, 10thFloor, Suite 1035A, 58 Strand Str, Cape Town, 8001 |
|
41 |
National Bargaining Council for Clothing Manufacturing Industry LR 2/6/6/154 |
7th Floor, Industria House, 350 Victoria Road, Salt River, 7925 |
|
42 |
National Textile Bargaining Council LR 2/6/6/155 |
James Bolton Hall, 3rdFlr, 27 Magwaza Maphalala Str, (Gale Street), Umbilo, 4001 |
|
43 |
Bargaining Council for the Civil Engineering Industry LR 2/6/6/160 |
SAFSEC House, 2rd Floor, 12 Skeen Boulevard, Bedfordview, 2008 |
|
44 |
Amanzi Bargaining Council LR 2/6/6/161 |
3 Erica Close, Hermanus Heights, Hermanus, 7200 |
|
45 |
South African Local Government Bargaining Council LR 2/6/6/140 |
Head Office, 461 King Dinuzulu Road (South), Berea, 4062 |
|
46 |
Education Labour Relations Council LR 2/6/6/110 |
ELRC Building, 261 West Avenue, Centurion, 0046 |
|
47 |
Public Service Co-ordinating Bargaining Council LR 2/6/6/126 |
PSCBC Office, Building A, 260 Basden Avenue, Lyttelton, 0176 |
|
48 |
General Public Service Sectoral Bargaining Council LR 2/6/6/143 |
260 Basden Ave, Public Service Barg Centre, Lyttelton, 0176 |
|
49 |
Public Health and Social Development Sectoral Bargaining Council LR 2/6/6/144 |
Public Service Bargaining Centre, Building E, 260 Basden Rd, Lyttelton, Centurion, 0176 |
|
50 |
Safety and Security Sectoral Bargaining Council LR 2/6/6/147 |
260 Basden Ave, Public Service Bargaining Centre, Lyttelton, 0176 |
Source: Free Market Foundation.
Click here to sign up to receive our free daily headline email newsletter
