Courting Kylie – Analysing
the Legalities
2010 CCMA COMMISSIONERS INDABA
“Against all Odds”
Ritz Hotel
2 – 4 December 2010
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.
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
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
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 favours
legalisation and regulation of the sex industry.
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?
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
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?
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?