Extension Of Bargaining Council Agreements

With respect to funding agreements such as the MEIBC education and training program and its collective agreement, which regulates collective taxes, the Minister could renew such collective agreements if this would not affect sectoral collective bargaining. A contract may be extended for 12 months at the request of a party to the Collective Agreements Board if the underlying contract has expired or if the parties have not entered into a replacement collective agreement within 90 days of the expiry of a collective agreement. The steps in the procedure must be followed, as the Minister would be required to publish this intention to extend in the government`s dashboard, in which he calls for contributions before making a decision on the extension. Such a decision may be reviewed by a competent court. In 2014, AMCU notified the three mining companies of strike notice for the same issues as the agreement. The Chamber of Mines has petitioned the Labour Court for an urgent ban on the strike. The emergency ban was imposed and on the day of return, the court upheld the order. AMCU then appealed the ban to the Labour Court and the appeal was dismissed. The case was then brought before the Constitutional Court, as the constitutionality of Article 23(1)(d)(iii) in conjunction with Article 65(3) of the Employment Relations Act was clearly challenged. Beyond the question of jurisdiction, the Constitutional Court had to take a decision on the importance of a “workplace” within the meaning of Article 23(1)(d). In addition, the Court had to rule on the constitutionality of the limitation of the right to strike, the right to collective bargaining and the right to freedom of association within the meaning of Article 23(1)(d) in conjunction with Article 65(3) of the LRA. Nevertheless, the Minister obtains the power to extend a collective agreement if the parties to the bargaining board are not in the majority, but are sufficiently representative. This power may be exercised if the Minister is concerned that non-renewal will undermine collective bargaining at the sectoral level.

In order to establish sufficient representativeness, the Minister must take into account a number of aspects such as: the Labour Relations Act (Act 66 of 1995) (LRA) aims, inter alia, to promote orderly collective bargaining, collective bargaining at sectoral level and to promote the democratisation of employment (Section 1 of the ARS). This is in line with the right to collective bargaining of trade unions, employers and employers` organisations, enshrined in section 23(5) of the South African Constitution 1996. The final product of collective bargaining is a collective agreement within the meaning of section 213 of the LRA. Collective agreements are an effective instrument for regulating conditions of service and other matters of mutual interest (Du Toit (ed) and the Labour Relations Act (6th edition) (LexisNexis 2015) 309). These collective agreements may be extended to other parties who have not signed them. Two possibilities for extension are provided for in Article 23(1)(d) and Article 32 of the LRA. Section 23(1)(d) provides that a collective agreement is binding on workers who are not members of the trade union or trade union which is a party to the agreement, provided that three conditions are met, namely that the workers are indicated in the agreement; the agreement expressly binds the staff; and the trade union or trade unions concluding the agreement are predominantly employed in that workplace (cf. Fakude, inter alia, against Kwikot (Pty) Ltd [2012] ZALCJHB 169 para.

34). . . . .