URGENT internal memo circulated in a city near you this week: “Memo – compulsory for all staph members.” Even better than this little charmer, sent on by a friend, was something I spotted recently at a restaurant in Clarens. The menu board’s offering included “pie and wages”.
On the day we exchanged these howlers, the first important court decision of the year was handed down. As I read the judgment, I began to see some significance in the fact that it was delivered just as many South African children began school again while teachers, education officials and politicians fought their old fight over whether pupils should be “turned” in the direction of maths and science.
The judgment from the Supreme Court of Appeal deals with a dispute, argued late last year, between SAA and a number of unions and other employees. It concerns section 197 of the Labour Relations Act, which regulates what happens to staff when an employer outsources parts of its operation, as SAA did in 2000.
According to the law, section 197 applies in the case of “the transfer of a business by one employer to another employer”. Focus here on the word “by”, as we’ll be coming back to it. Under section 197, when such a transfer takes place all the old contracts and other benefits continue to apply to transferred employees.
But in this case, SAA ended its outsourcing agreement before the 10-year contract with the new employer was up, something it was allowed to do under certain conditions. The question that then arose was what would happen to the staff originally “transferred” by SAA to the new employer, as SAA refused to guarantee that the “affected staff” would be taken back.
The matter went to the Labour Court, where the judge found that the protections under section 197 operated only when employees were transferred “by” the original employer; the section says nothing about applying when staff are transferred “from” a subsequent employer. For that reason, the employees in this case did not fall under the protection of section 197 (and SAA was not obliged to take them back).
Understandably, the unions appealed. When the Labour Appeal Court upheld the appeal, ruling that “by” should also be read as “from”, SAA took the matter to the Supreme Court of Appeal, and that court has now decided that “by” means “by”.
There are several important issues here – not just about the technicalities, but also about the extent to which a court can broaden the scope of a law passed by a democratic Parliament. On this dispute about the meaning and scope of section 197, some judges have held that it was “pragmatic”, or in some cases “fair” and in accordance with the spirit of the constitution to hold that “by” means “from”.
Others say this changes the meaning of the definition, and that the courts may not change the meaning assigned to a law by the legislature after proper consideration and debate. These are crucial legal and political issues.
But there’s another problem illustrated by the dispute and the judgment delivered this week. The decision of the court is a very real example, affecting equally real staff and their wages, of why language skills can’t be dumped for maths and science.
Courts must assume that legislators knew what they were doing when they agreed to a law which stipulates that it affects “transfer by an employer”; that they understood what the words meant, and that if they had wanted to talk about “transfer from an employer” as well as, or instead of “transfer by an employer”, they would have said so.
I’m not necessarily arguing for skills in any particular language, but it’s not only the court that needs certainty. We, the public, must also be sure that our law-making representatives understand the significance of the words they choose in the context of the laws they pass, whatever language the law is written in. However good their maths and science, legislators, like the rest of us, must also mean what they say.
“Staph” is, of course, the common abbreviation of staphylococcus, a nasty germ causing boils and other infections. Perhaps some bosses think of their employees in this way, but it’s rather rude of them to circulate memos making it quite so obvious.
And as for the roasted potato wedges served with the chicken pie, I’d bet that most employees would still rather have their pay.