STATUTES REQUIRING CONSTITUTIONAL ALIGNMENT __________________________________________________________________________________ • Although section 65(2) & (3) of the Constitution gives everyone the right to form and join trade unions and to participate in collective job action, the Act distinguishes between registered unions (which have to meet prescribed criteria) and unregistered unions (which do not). Section 30 of the Act states that unregistered unions may not make representations to the Labour Court (i.e. they are denied a right of access to the court) and they may not recommend collective job action (an essential function of a trade union). In both these respects the Act is unconstitutional. • Section 84 of the Act, as amended by the General Laws Amendment Act, states that the Labour Court established before the date of commencement of the Constitution continues in operation. It can’t, because the Labour Court is now established by section 162 of the Constitution. • Section 84 says that the conditions of service of judges of the Labour Court are fixed by the President after consultation with the Judicial Service Commission. Under section 188 of the Constitution they must be fixed by the JSC with the approval of the President given after consultation with the Minister of Justice and on the recommendation of the Minister of Finance. • Section 85 of the Act, as amended by the General Laws Amendment Act, is unnecessary because the qualifications of judges of the Labour Court are laid down in section 179 of the Constitution. If the section remains in the Act it should be corrected to refer to Judges of the court, not “Presidents”. • The Act should be amended to make it clear that, as provided by section 69(4) of the Constitution, parties have the right to legal representation in all disciplinary and other proceedings conducted in terms of a collective bargaining agreement. Incidentally, employers should note that the right to legal representation applies to disciplinary proceedings against employees, whether they are conducted under the Labour Act or under rules drawn up for a particular workplace. 40. Land Acquisition Act [Chapter 20:10* Although the Act applies to the compulsory acquisition of land, other statutes such as the Urban Councils Act apply its provisions to the acquisition of other property. Although movable property is compulsorily much less often than immovable property such as land, it would be clearer if the Act itself expressly covered the acquisition of all types of property. In the context of the Constitution, The Act needs to be redrafted and re-enacted to bring it into line with sections 71 and 72 of the Constitution, distinguishing between agricultural land (which is covered by section 72 of the Constitution and can be acquired by a “fast-track” process) and other property (covered by section 71). In order to align the Act, or the new Act, with the Constitution, the following changes need to be made: • The Act currently distinguishes between “rural land”, which is the subject of fast-track acquisition, and other land. The term “rural land” is defined in the Act more widely than the term “agricultural land” in section 72 of the Constitution. This means that the Act allows fast-track acquisition of some land which, under the Constitution, cannot be fast-tracked. The definitions need to be aligned. 13