Minimum wage measures infringe on constitutional rights

Eustace Davie, a director of the Free Market Foundation, argues that the constitutional rights of unemployed South Africans are being infringed upon. He believes the country’s minimum wage measures curtail the freedom of workers to choose their trade, occupation or profession because they do not have the freedom to negotiate the terms of their employment. Limiting the choice by forcing adherence to a minimum wage is an unreasonable infringement of a core freedom, and for some time, unemployed people have been appealing to the Human Rights Commission to come to their aid by insisting that the provisions in the Bill of Rights regarding the rights are respected. They want the HRC to come to their aid by using the constitutional power it possesses to force the removal of the laws and regulations that are unconstitutional in their effect that have caused mass unemployment, destitution and misery in South Africa. – Sandra Laurence

The unemployed are deprived of their constitutional rights

By Eustace Davie*

Eustace Davie

A country that has almost 50% of its potential workforce either unemployed or described as “discouraged workers” has a serious problem. Such a situation is unnatural and does not arise in a free country. It happens by design and for a purpose.

What unemployed people need is for the artificial barriers to entry into the job market to be removed so that they can find themselves jobs. One of the most distressing aspects of the unemployment issue is that there are provisions in the Bill of Rights that were specifically included to prevent citizens from suffering the kind of harm to which the unemployed have been subjected.

If we apply the relevant sections of the Bill of Rights to the matter of mass unemployment and the rights of the unemployed, we are compelled to conclude that the unemployed are not receiving the benefits of the constitutional protections that should be available to them. The nature of the right: to be able to freely enter voluntary contracts with employers at wages and on conditions acceptable to both parties.

Some examples from the Constitution show clearly that the unemployed are being denied their constitutional right to enter into mutually beneficial agreements with potential employers:

Section 7(1) “enshrines the right of all people of our country and affirms the democratic values of human dignity, equality and freedom”. There can be no doubt that the state of unemployment causes a serious infringement on the dignity, and equality before the law, of the unemployed person concerned. To deny an unemployed person the rights to bargain freely with a prospective employer impedes their right to end the indignity of unemployment and prolongs it. Such a denial also infringes on the freedom of the individual.

Section 7(2) requires the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”. The state is accordingly under an obligation to do all in its power to end unemployment and to remove the laws and regulations that impede the right to work.

Section 9 deals with the right to equality – section 9(2) provides for affirmative action: To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. Many of the unemployed belong to groups “disadvantaged by unfair discrimination imposed by the legislature,” justifying “legislative and other measures designed to protect or advance” them.

Section 9(3) provides that “(t)he state may not unfairly discriminate directly or indirectly against anyone “on one or more grounds, including …. the labour laws, including the minimum wage, which directly or at least indirectly discriminates against the unemployed whilst unfairly protecting only the employed.

Section 10 provides that “Everyone has inherent dignity and the right to have their dignity respected and protected”. Being legislatively denied the ability to enter employment on mutually agreeable terms constitutes a serious infringement of dignity, and in the context of the unemployed, the State is not fulfilling its obligation. To show respect for the dignity of a group of persons is to recognise and address the unique challenges that they face. The unemployed are not suffering because they do not earn enough, but instead because they do not earn at all. Their dignity cannot be protected by minimum wage measures as these measures benefit only the employed. For the unemployed, minimum wage measures mean fewer jobs and fewer people hired for the jobs which are still available; they mean being denied the opportunity to enter the job market on one’s chosen terms. 

This causes the employed to become wealthier while simultaneously denying the unemployed the choice to acquire wealth on their own terms. True respect for the dignity of the unemployed can only be achieved by enacting provisions which are specifically designed for their protection and advancement. This could be achieved by exempting the unemployed from the laws and regulations that impede their right to work.

Section 11 provides for the right to life. The right to life must surely include the right to freely and lawfully employ your talents to sustain yourself and your family.

Section 12(1) provides for the right to freedom and security of the person, and both are threatened by unemployment. A law which results in unemployment causes the unemployed to be “treated or punished in a cruel, inhuman or degrading way” and infringes the provisions of section 12(1)(e). Such a law also infringes on the individual’s “right to bodily and psychological integrity.” Barriers in the form of laws and regulations that prevent individuals from using their muscle and brain power to earn an income to sustain themselves and their families infringes on their section 12(2)(b) right “to security in and control over their body”.

Section 22 provides that “Every citizen has the right to choose their trade, occupation or profession freely.” The freedom of workers to choose their trade, occupation and profession is infringed by minimum wage measures. Workers do not have the freedom to negotiate entering a trade, occupation, or profession of their choice – this freedom has been curtailed by minimum wage measures. Provided the choice is to enter lawful employment, limiting the choice by forcing adherence to a minimum wage is an unreasonable infringement on a core freedom.

Section 23(1) provides for the “right to fair labour practices”. To effectively prevent someone from selling their labour is unfair. The defence to all the infringements referred to above would have to be grounded on section 36, which reads:

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors, including –

(2)

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(3) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

(4) The infringements wrought by the labour laws are not reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.

The Human Rights Commission must, as determined by Section 184 (1) of the Constitution: (1)(a) promote respect for human rights and a culture of human rights 

(b) promote the protection, development, and attainment of human rights; 

(c) monitor and assess the observance of human rights in the Republic.

Unemployed people have for some time been appealing to the Human Rights Commission to come to their aid by insisting that the provisions in the Bill of Rights regarding the rights, as listed above, be respected. This is a plea for the HRC to come to the aid of the unemployed, using the constitutional power it possesses, to have removed the laws and regulations that are unconstitutional in their effect and have caused mass unemployment, destitution and misery in South Africa.

  • Eustace Davie is a director of the Free Market Foundation and author of Unchain the Child. The views expressed in the article are the author’s and not necessarily shared by the members of the Foundation.

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