A lot has been written about the extension of collective agreements and particularly those covering terms and condition of employment in the metals and engineering industries.
The starting point in responding to these criticisms is to acknowledge that the extension of a bargaining council’s collective agreement is not unconstitutional. This view was upheld by Judge John Murphy on behalf of a full bench of the North Gauteng (Pretoria) High Court in the 2016 Free Market Foundation (FMF) v Minister of Labour & Others Judgment.
The argument that collective agreements adversely affect non-party employers by requiring them to pay higher wages than they would otherwise have done may well be correct, but the question is whether our critics can take the same narrow view.
Labour law is derived from our Constitution, which is dedicated to the achievement of social justice. Fundamental to this, as Marikana reminded us, is the reduction of inequality.
Collective bargaining is a cornerstone of the system and the reduction of disproportionate income differentials is one of its purposes. Add to this the right to strike, which is constitutionally entrenched, for the very purpose of allowing workers to exercise economic pressure – in other words, forcing employers to pay higher wages than they would otherwise have done – and it becomes less obvious why collective bargaining aimed at achieving the same outcomes should be regarded as being reprehensible.
The point is that Section 32 of the Labour Relations Act (LRA) expressly empowers – indeed, requires – Bargaining Councils and the Minister of Employment and Labour to follow a specific procedure for extending bargaining council agreements. This procedure was agreed upon in 1995 by the parties to NEDLAC, including the representatives of business. Twenty-seven years on, the system stands accused as being unfair. In reality, arguments supportive of this view are, at best, inconclusive or, at worst, speculative.
No less contentious is the belief that the extension of bargaining council agreements is a significant barrier to job creation and that the millions of unemployed South Africans stand to gain employment if collective bargaining – and, implicitly, the extension of collective agreements – was done away with. Interestingly, less than a third of South Africa’s workforce is subject to bargaining council agreements and less than 5% is affected by extended agreements, thus leaving the greater part of the economy free from this real or imagined evil.
Collective bargaining at industry level, as the Court put it in the Free Market Foundation (FMF) v Minister of Labour & Others, “will be undermined if bargaining agents in a majoritarian setting were uncertain at the outset of negotiations about whether or not their agreements would be extended.” That is precisely what Parliament, in enacting Section 32 of the LRA, set out to achieve: in essence, to oblige the Minister to extend a bargaining council agreement at the behest of the parties (i.e., employers and trade unions), provided the formal requirements set out in Section 32 are met.
In particular, these requirements are that: one or more registered trade union/s whose members constitute the majority of the members of the trade unions that are party to the bargaining council vote in favour of the extension, and one or more registered employers’ organisations, whose members employ the majority of the employees employed by the members of the employers’ organisations that are party to or a registered with the bargaining council, vote in favour of the extension.
According to the latest Department of Employment and Labour determination of the representativeness of the Metals and Engineering Industries Bargaining Council, issued in terms of Section 49 of the LRA, the following Representative Determination is made:
- the trade unions party to or registered with the Bargaining Council represent 153 873 (32,81%) out of 468 874 employees engaged in the industry;
- of the 468 874 employees in the industry, a total of 308 605 (65,81%) of them are employed by the members of the employers’ organisations that are party to or registered with the Bargaining Council;
- the SEIFSA-affiliated employer Associations alone represent 56,15%, the National Employers Association of South Africa (NEASA) represents 19,15%, the Plastics Converters Association of South Africa (PCA-SA) represents 10,81%, the South African Engineers and Founders Association (SAEFA) represents 6,0%, the Confederation of Employers Organisation (CEO) represents 4,60%, the South African United Commercial and Allied Employers Organisation (SAUEO) represents 2.56% and the Federated Employers Organisation of SA (FEOSA) represents 0,73% of these employees.
After a bruising round of collective barraging last year culminating in a three-week strike that cost the industry in excess of R300m in lost wages per week and well over R600m in lost revenue, all five trade unions, who sit on the Bargaining Council, signed the 2021-2024 Settlement Agreement supporting its extension to non-party employers and employees.
In terms of current law and in-line with a Section 32 of the LRA, 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 and certainty.
After all, this is the legislative model the social partners agreed on in 1995 and which Parliament duly enacted. Preventing, delaying and/or litigating against extension may delay the implementation of higher wage increases for non-parties, but the indirect effects are no less important. For the affected workers and their unemployed family members, this would almost certainly translate into greater distress. It is hard to reconcile this with the goal of social justice.
Lucio Trentini is the Chief Executive Officer of the Steel and Engineering Industries Federation of Southern Africa (SEIFSA).