Extension Of Bargaining Council Agreements

The extension of collective agreements has been put to the test within the Free Market Foundation/Minister of Labour – Others [2016] ZAGPPHC 266. The Free Market Foundation sought an order declaring Article 32 of the LRA unconstitutional and was in breach of the Constitution, insofar as it allows private operators, such as bargaining councils, to impose binding obligations on employers and workers who are not members of the Council. The Foundation also challenged the constitutionality of Section 32, on the grounds that it does not give the Minister a material discretion to refrain from seeking the renewal of collective agreements. Can non-parties to a collective agreement challenge the subsequent renewal of such an agreement by the Minister of Labour? With respect to the definition given in Section 213, the test for determining whether two or more workplaces of the same employer constitute separate jobs requires consideration of their size, function or organization. The meaning given to a word in relation to this section applies throughout the act, unless the context in which it is used indicates something else (AMCU/House of Mines acting in its own name – Harmony Gold Mining obo by 49-51). The finding that the statutory definition applies to the concept of “workplace” means that the extension of collective agreements within the meaning of section 23, paragraph 1, point d) encompasses all staff, regardless of geographic location. As the Constitutional Court found, the “workstation” in Section 23, paragraph 1, point d) corresponds to the workstation provided for in Section 213. It is very much about the levels of representativeness and the evolution of the dynamics of union membership. Recently, the Casual Workers` Advice Office (CWAO) stated that registered unions represent only 24% of the South African labour force and that unions represent far fewer workers in NEDLAC than before. The LRA bill clearly has this in mind when it attempts to protect the objective of sectoral negotiations and orderly collective bargaining. It is clear from this case that collective agreements concluded within association councils can only be extended to third parties if the requirements of section 32 of the LRA are met. It is important that we can go to either the short-workers or the high courts to look at these types of disputes.