Courting Kylie – Analysing the Legalities

1. Courting Kylie – Analysing the Legalities 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010

2. CCMA Jurisdiction in Sex Worker Cases Kylie, a sex worker, referred a case to the CCMA – the first case where the applicant openly declared that she was a sex worker. Commissioner raised the issue of jurisdiction and found Kylie was not an employee because the contract was illegal, invalid and unenforceable. On review, LC found Kylie was an employee, but agreed that the CCMA lacks jurisdiction as her contract was illegal and unenforceable, and to protect labour rights would encourage participation in criminal activity.

3. LAC Decision On appeal, the LAC found: She had the right to dignity and fair treatment in terms of the Constitution, and was entitled to protection Generally, sex workers are exploited The CCMA has jurisdiction to conciliate and arbitrate sex worker cases

4. LAC Obiter LAC then commented (obiter): Reinstatement (the primary remedy for unfair dismissal) would not be appropriate Compensation for substantive unfairness may not be appropriate Some compensation for procedural unfairness – impairment to disgnity - may be appropriate Sex workers should not enjoy collective bargaining rights LAC did not deal with BCEA rights

5. Approaches to Debate Conservative approach: There is a still a strong (moral) view that sex workers should not be protected; some commissioners would not want to arbitrate such cases for moral or religious reasons. This view typically ties in with the notion that some or many sex workers choose to “enter the profession” because it is lucrative. (Kylie earned R4500 per month) Liberal approach: Recognise right to dignity, but also that conduct is criminal, and give limited rights and protection This view recognises that sex workers are, generally, exploited and should be protected. Typically this approach favourslegalisation and regulation of the sex industry.

6. Approaches to the Debate Radical approach: Society cannot endorse abuse and exploitation of women (or male prostitutes) “It’s like being subjected to rape over and over again. You get beaten up. Prostitutes are victims.” Researchers found: “Women we met told of being defecated on, spat at, sworn at, slapped, strangled during sex and made to do demeaning things…. We did not meet one happy prostitute.” “Is this work? Should we give women the legal right to experience this abuse?” Can the argument that it’s the oldest profession in the world and it will continue in any event justify institutionalising abuse?

7. Difficulties raised by the LAC approach Whatever one’s personal view, CCMA has jurisdiction to arbitrate. -------------- If LAC obiter comments are followed: CCMA will arbitrate only procedural unfairness whereas the LRA requires commissioners to “determine the substantial merits” Why no collective bargaining rights which would assist in addressing exploitation? It is not always easy to distinguish between substantive and procedural fairness

8. Difficulties raised by the LAC’s approach If LAC obiter comments are not followed: There may be considerable difficulty applying the test for substantive unfairness. For example: What is a reasonable standard of conduct or performance in the sex industry? What is a reasonable instruction for her to perform? Can she refuse to perform certain acts? Is it possible to hear evidence and determine what happens between two people in a bedroom? Is it appropriate for arbitrators to enter into this arena? Subpoena clients?

9. Possible approach for CCMA arbitrators Arbitrator could distinguish between “ordinary/neutral reasons” and reasons where an inquiry would be contrary to public policy and refrain from determining substantive fairness in the latter cases. CCMA could well determine substantive fairness in “ordinary misconduct” dismissals, eg late-coming, theft BCEA rights would be relatively easy to implement – section 74 consolidation would be encouraged Why no collective bargaining rights which would assist in addressing exploitation?