The Congress of South African Trade Unions (Cosatu) will be picketing outside the Constitutional Court on Tuesday in the hope it rules that the Commission for Conciliation, Mediation and Arbitration (CCMA) has the final say in labour disputes and not the courts.
Cosatu is applying for leave to appeal two Supreme Court of Appeal (SCA) findings.
These were linked to an SCA order nullifying a CCMA decision to reinstate workers dismissed by Rustenburg Platinum Mines, said Siphiwe Mgcina, Cosatu secretary in Gauteng.
The Constitutional Court will be asked to decide whether compulsory arbitrations by the CCMA constitute an administrative act subject to review under the Promotion of Administrative Justice Act (Paja).
It will also be asked to determine whether the CCMA must show deference to employers when deciding whether their workplace measures are fair, as the Labour Relations Act (LRA) made it primarily their function to decide on proper sanctions.
Allowing courts to overrule the CCMA set the wrong precedent, said Mgcina. As a result, employers would go straight to the courts instead of submitting to arbitration. Cosatu contends that arbitrations do not constitute administrative acts.
It will submit that the LRA restricts power of review precisely to limit the extent to which arbitrations can be challenged in court so that they can be decided in a way which is cheap, accessible, quick and informal.
It claims that making them subject to the Paja will do the opposite.
Cosatu further submits that the CCMA is not obliged to show deference to employers’ sanctions, but must balance their interests and those of workers against constitutional values.
Rustenburg Platinum Mines, which is opposing the application, backs the SCA’s findings.
Constitutional Court registrar Martie Stander said both the chief magistrate and chief justice had granted Cosatu permission to picket outside the court. Cosatu had ”promised to be very quiet”, she said.
Picketers would probably congregate on Constitution Square, within 100m of the court. – Sapa