Business Day column: Superficial loss and substantial win on LRA

FOR more South Africans than ever before, every day is a public holiday. A "Workers’ Day" like we had last week. Day after day. Year after year. Unemployment statistics published by Statistics SA (Stats SA) on Monday tell us that this is so for nearly 9-million South Africans. They all earn the same statutory minimum wage. Zero.

More people earn zero than any other wage; more are in the jobless sector than in any other sector. That is why the Free Market Foundation (FMF) launched its celebrated constitutional case against a single word in the Labour Relations Act (LRA). It asked the court to declare unconstitutional the provision that the minister of labour "must" do what private bargaining councils tell her to do.

Instead, the court ruled that victims have more protection than anyone realised or the foundation sought. It said that the parties must consider the broader implications of private deals and that there are three stages at which agreements and extensions can be derailed.

That is why it is a "celebrated" case. Both sides celebrated. The FMF celebrated having lost superficially and won substantively. Its 50 opponents celebrated having won a Pyrrhic victory that leaves the "victors" worse off.

So much nonsense has been spewed about the case that I fear I might wake to find I have been dreaming about people celebrating defeat in the name of victory. What seems real in dreams is crazy when we wake.

A lawyer opposing the FMF dismissed as "amusing fiction" an earlier column in which I was optimistic about the turn of events in the hearing. Yet when the judgment coincided with my assessment, he celebrated the outcome. My radio debate with Department of Labour representative Thembinkosi Mkalipi was so dreamlike, I wondered if it were part of an elaborate spoof. He seemed unable to get any facts right and celebrated a law that demeans him and his minister. He said private parties can force his minister to extend agreements to entire sectors only if unions and employers representing sectoral majorities agreed. In truth, his minister "must" extend at the behest of bargaining council majorities, as opposed to sectoral majorities.

He got the International Labour Organisation (ILO) position, SA’s ILO obligations and the implications of the judgment wrong.

Mkalipi said the FMF opposed bargaining councils, whereas the opposite is true. Ironically, although the FMF achieved more than expected, the judgment could undermine the laudable principles of "voluntarism" and "majoritarianism" endorsed by the court. The FMF wanted to leave contractual freedom intact, subject to the minister being allowed to think before she extends private contracts to victimised nonparties.

Although they never admit it, proponents of the prejudgment position celebrate the fact that policies they espouse give us the world’s highest enduring unemployment rate.

When Stats SA says unemployment increased from 24.5% to 26.7%, we have a statistic. The "expanded" number, 36.3%, is a bigger statistic. Youth unemployment of more than 50% is bigger still and 9-million unemployed people is too many to comprehend.

Proponents of failed labour policies are unmoved by numbers. If they ventured out of their air-conditioned offices in their luxury 4x4s to spend a day with a jobseeker, their callous hearts might mellow. They might sense the inhumaneness "decent wage" rhetoric conceals.

They might realise what it is like to spend every minute of every hour of every day of every week of every month of every year in hopeless distress, indignity and squalor, walking the streets and facing rejection, leaching and begging, hungry and insecure. They might understand the temptations of radicalism and crime.

• Louw is executive director of the Free Market Foundation

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