Labour as a public interest consideration in merger regulation

Abstract

In the South Africa context for merger consideration the issue of labour has always been a pertinent focus and consequential to that the Competition Act, 89 of 1998 as amended (Competition Act) establishes a compulsory merger notification approach. It is therefore necessary to scrutinize the role that labour as a public interest concern has played and is likely to play subsequent to the Competition Act, Public Interest Guidelines and the Competition Amendment Act 18 of 2018 coming into operation. This paper looks at the number of ground-breaking cases which have been umpired with intervention from several government departments and trade unions and places the focus on how labour issues are assessed in mergers. The cases are fundamental to the application of public interest considerations on proposed mergers and also to specifically determine the impact that labour as a public interest consideration has on what the Competition Act intends to achieve as indicated in its preamble and purpose. The content and impact of the Guidelines on the assessment of public interest provisions in merger regulation under the Competition Act will be deliberated with reference to how the competition authorities deal with employment as a public interest consideration. The issue of public interest consideration in mergers is a developing area of our competition law system and this study seeks to demonstrate the importance of labour as public interest consideration in merger regulation and how instrumental labour is to the promotion of competition policies.