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Soldiers, sailors and sex workers dig their heels
in By Terry Bell
Section 23 of the constitution states that "everyone has the
right to fair labour practices" and that "every worker" has the
right to organise and act as part of unions. It was on this
basis that members of the military took the issue of their
rights to the constitutional court and won.
Although the Labour Relations Act specifically excludes defence
force members from its provisions, the court ruled that the
constitution held sway; that "although members of the permanent
force do not enter into contracts of employment as ordinarily
understood, they are entitled to protection in terms of section
23".
But they do not qualify under the Labour Relations Act, so they
do not have access to, for example, the free services of the
Commission for Conciliation Mediation and Arbitration (CCMA).
And while they may not strike, they do have the right to
organise and to protest their grievances.
Towards the end of last year, the more militant of the two
military unions, the SA Security Forces Union, was starting to
flex its organisational muscles and threatening to take
unresolved grievances to the streets. The year has opened with
the grievances still unresolved and the prospect of soldiers and
sailors marching in the streets as union members seems greater
than ever.
With Cosatu's backing, the union in the Western Cape announced
yesterday that it had applied for council permission to stage a
protest march next Saturday. The initial plan to march tomorrow
had to be cancelled when the council refused permission on
technical grounds.
Also yesterday, representatives of a group of marginalised
workers, partially inspired by the success of the "workers in
uniform", met with lawyers to discuss a judgment that recognises
hypocrisy between law and practice, but refuses to accept sex
workers as legally protected labourers.
On the grounds that workers are workers irrespective of the
nature of their work, a Cape Town sex worker late last year took
her employer, the owner of a massage parlour and brothel, to the
CCMA for claimed unfair dismissal. The worker was granted
anonymity because of the effect the revealing of her identity
could have on her partner of four years, his work and family,
and on her future employment prospects.
Commissioner Bella Goldman was faced with deciding whether the
CCMA had the authority to arbitrate: to do so would effectively
acknowledge that sex workers were also workers in terms of the
law.
From the evidence that was led, it was obvious that sex work was
openly accepted; that city councils granted licences to brothels
under various euphemisms when they "were aware or should
reasonably have been aware of the nature of the business".
This clearly amounted to hypocrisy because, under the Sexual
Offences Act of 1957, any "carnal intercourse" or "indecent act"
performed for reward is a criminal offence unless it takes place
between a husband and wife. And while newspaper classified
advertisements daily offer such services for reward, red light
districts are features of most cities and few prosecutions for
brothel keeping or prostitution are instituted, the law still
stands.
"It is completely outdated and needs to be changed," says Jane
Arnott, the director of the Sex Workers' Education and Advisory
Taskforce (Sweat).
The organisation supported the worker, who was sacked from her
job at a Parow massage parlour.
But it was the support of Sweat that strengthened the argument
that the CCMA could not arbitrate in the matter. Goldman noted
that the professed aim of Sweat was "to decriminalise adult sex
work", which was an admission that the work was still considered
criminal.
The worker in question, known as Kylie, admitted that much of
her work was nominally illegal, but felt this should not exclude
her from the protection of the law as a worker.
"There are not just pay and conditions issues here. These are
the most vulnerable of workers and health and safety issues are
vital," says Arnott.
This position was supported by Kylie's former boss, Michelle van
Zyl, a confessed brothel owner. She wanted the sacking upheld,
but "as a former sex worker" she wanted the matter to be heard
so that sex workers could be recognised and protected by the
law.
But as Goldman pointed out, "it is not for an administrative
body such as the CCMA to change the law. This is a function of
the legislature or the constitutional court." However, she also
noted that "it would appear that the law is not in line with the
morality or prevailing views of society".
So whether sex workers will follow the "workers in uniform" to
walk the streets en masse in protest, time alone will tell.
Published on the web by Business Report on January 18, 2007.
© Business Report 2007. All rights
reserved.Original link: http://www.busrep.co.za/index.php?fSectionId=553&fArticleId=3634859
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