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Constitutional Court denies leave to appeal extension of collective bargaining to nonparties

28th August 2023

By: Schalk Burger

Creamer Media Senior Deputy Editor

     

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The Constitutional Court on August 25 dismissed the petition for leave to appeal the decision of the Metal and Engineering Industries Bargaining Council (MEIBC) to extend the main agreement to nonparties with effect from October 17, 2022.

This judgment reinforces the principles of centralised collective bargaining, a cornerstone of South African labour relations, said industry employer organisation the Steel and Engineering Industries Federation of Southern Africa (Seifsa) on August 28.

"In terms of current law and in line with Section 32 of the Labour Relations Act, where an agreement is negotiated and concluded by bargaining agents who represent and employ the majority of employees falling within the bargaining council’s coverage, the extension of a bargaining council agreement is seen as a reasonable and necessary mechanism of collective bargaining and is a key ingredient in ensuring labour market peace, stability, certainty and social justice," the organisation said in a statement.

Seifsa said its support for and defence of centralised collective bargaining was validated not only with this judgment, but by what the Labour Court opined in its initial judgment and which was supported by the same court in striking down employer organisation the National Employers' Association of South Africa's (Neasa's) and industry organisation the South African Engineers and Founders Association's (SAEFA's) leave to appeal, and again by the Labour Appeals Court, Seifsa said.

"The 2021 to 2024 Main Agreement will lapse on June 30, 2024. It is fair to say the lessons learned in concluding an industry agreement, having it published and extended and being challenged every step of the way and, importantly, winning at each hurdle will stand us in good stead as we lay the groundwork for next year’s round of collective bargaining," said Seifsa CEO Lucio Trentini.

"Through the process, bonds between so-called traditional adversaries, namely business and labour, have been strengthened, legal battles have been waged and won. While Neasa and SAEFA will contemplate their next move, they would be best advised to do the right thing and rather focus on seeking a way back into the proverbial tent as next year looms large," he said.

NEASA'S COMMENT
Neasa had filed a petition at the Constitutional Court for leave to appeal the Labour Court’s earlier decision to dismiss an application to interdict the MEIBC from requesting the Minister of Employment and Labour to extend the Collective Main Agreement to nonparties, Neasa said on August 28.

"The petition was essentially based on the fact that the Labour Court decided on issues that were never before it and which were never argued. This infringed on Neasa’s Constitutional right of access to courts.

"The Constitutional Court has now issued a ruling in which it dismissed Neasa’s petition. This is, however, not the end of the road," it said.

The fact that the Constitutional Court dismissed the matter on mootness only, simply means that the matter has, in the court’s view, become academic as the Minister has already extended the agreement.

However, as the Constitutional Court made no decision on the merits of the appeal, it remains open to Neasa to argue the merits afresh in the review application to set aside the decision by the Minister to extend the agreement to nonparties, the organisation said.

"It remains Neasa’s view that the decisions by both the MEIBC and the Minister are fraught with irregularities which, if allowed to remain unchallenged, will have dire consequences for the industry.

"The review against the Minister is already at an advanced stage and we will keep employers abreast of developments in this regard," Neasa said.

Edited by Chanel de Bruyn
Creamer Media Senior Deputy Editor Online

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