Labour law �before Sexual Offences Act�

August 25, 2008

Labour law �before Sexual Offences Act�

Ernest Mabuza
Legal Affairs Correspondent

SEX workers have a constitutional and statutory right to protection against unfair labour practices generally and unfair dismissals in particular, the woman who was dismissed from her work at a massage parlour has submitted to the Constitutional Court.

The woman, known as Kylie, considered her dismissal from her work unfair and complained to the Commission for Conciliation, Mediation and Arbitration. It ruled that it had no jurisdiction to arbitrate because her work was prohibited and her employment contract was accordingly invalid.

She took her case to the Labour Court, which ruled last month that sex workers did not have labour rights under the constitution because the courts ought not to sanction or encourage illegal activity.

The Labour Court said organised prostitution was prohibited by the Sexual Offences Act and that the scope of the labour rights in section 23 of the constitution did not include sex workers and brothel keepers as bearers of those rights.

Kylie�s attorney, Jennifer Williams, said in an affidavit to the Constitutional Court that the Labour Court reasoning was incorrect, and that Kylie was entitled to the unfair dismissal protections of section 23 of the constitution and the Labour Relations Act and that these rights were enforceable. She said there were thousands of sex workers working in exploitative conditions and being subjected to unfair treatment at the hands of employers.

�The effect of the judgment is to exclude an entire industry from the protections of the machinery of the Labour Act and the constitution.

�On a practical level, should applicant be correct that the sex workers are entitled to approach the Labour Court machinery for protection, this will serve immediately to ameliorate, at least to some extent, the harsh circumstances in which many sex workers find themselves and deter employers from acting with impunity.�

Williams said a court should not decline to afford sex workers the protection of the labour act.

�Sex workers have a constitutional and statutory right to protection against unfair labour practices generally and unfair dismissals in particular. It is not open to the courts to deprive them of the protection which the constitution and Parliament intended them to have.�

Williams said even if the court did have power to deprive them of the protection, it should exercise its discretion in their favour. There were compelling considerations of public policy in favour of the protection of sex workers despite the fact that their work might be prohibited by the criminal law.

Williams said the Labour Court subordinated the status of the Labour Relations Act to the Sexual Offences Act.

�It is perfectly possible to uphold both statutes alongside one another. Where the Sexual Offences Act seeks to eradicate or limit the prevalence of prostitution by criminal sanction, the Labour Relations Act on the other hand recognises that sex workers are also employees and, for as long as they are, they are entitled to the constitutional and statutory protection afforded to all employees regardless of the work they do.�

Williams said the labour act gave effect to a constitutional right where the sexual offences legislation did not.

�Section 210(1) of the labour act � expressly provides that where there is a conflict with any other act, it shall prevail and the exploitation of prostitution of women is condemned under article 8 of the Declaration on the Elimination of Discrimination Against Women, which requires measures be taken to combat exploitation of prostitution of women.

�The labour act is designed to protect vulnerable employees from exploitation.�

BUSINESS DAY 25th AUGUST 2008

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