Wim Trengove. Picture: THE TIMES
Wim Trengove. Picture: THE TIMES

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THE first day of the Free Market Foundation’s legal battle over the constitutionality of collective bargaining provisions got under way on Monday with an immediate twist.

Judge John Murphy asked the parties in the case to consider whether a court pronouncement on the applicability of the Promotion of Administrative Justice Act to collective agreements could be more suitable relief than a judgment on the Labour Relations Act’s constitutionality.

The foundation’s court fight, which began almost three years ago, is being opposed by the Congress of South African Trade Unions (Cosatu), the Department of Labour, 23 bargaining councils and the South African Clothing and Textiles Workers Union.

The High Court in Pretoria had set aside four days for the matter, however arguments concluded on Monday and judgement was reserved.

The foundation is challenging the constitutionality of collective agreements reached in bargaining councils, which are extended to nonmembers in the sector that are not party to negotiations. It argues that the current arrangement allows unions and big business to collude, and creates barriers to entry that are damaging to small businesses and the unemployed.

Judge Murphy brought a surprise element to the case when he referred to the Promotion of Administrative Justice Act, under which collective bargaining agreements could be taken on judicial review as an administrative act on the grounds of procedural fairness, lawfulness and reasonableness. This could potentially open up new channels through which bargaining agreements could be challenged, including legal grounds or public inquiries.

Advocate Martin Brassey SC, for the foundation, accepted the judge’s perspective, but said it would not abandon its original relief.

The foundation wants the wording of the Labour Relations Act changed to ensure that the labour minister "may" extend agreements struck in councils, as opposed to "must" as is legislated.

The respondents maintained that the Labour Relations Act was constitutional and a stabilising mechanism in the labour market, while findings in favour of the Foundation "would open the floodgates" of litigation.

Advocate Wim Trengove SC, for Cosatu, said there was no constitutional provision that mandated that public power, when vested in a private actor for a certain interest, was not always required to be exercised in the public interest.

Advocate Gilbert Marcus SC, for the Department of Labour, submitted that the act could not be considered in isolation, but was about ensuring stability in an adversarial environment. Collective bargaining was, therefore, a "deliberate policy choice, which we submit is conducive to the kind of certainty and stability which this area of law requires", said Mr Marcus.

Flooding the court with reviews could bedevil collecting bargaining and undermine labour practice, he said.