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.
Section 32 of the Labour Relations Act (LRA) expressly empowers – indeed, requires – bargaining councils and the Minister of Labour to follow a specific procedure for extending bargaining council agreements.
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 the bargaining council, vote in favour of the extension.
At an historic Metals and Engineering Industries Bargaining Council (MEIBC) meeting of all the parties held today, the following vote was taken:
- The five-trade unions that are party to the council – namely, Mewusa, Numsa, Saewa, Solidarity and Uasa – all supported the extension of the Main Agreement to non-parties; and
- The 21-SEIFSA affiliated Employer Organisations and the Plastics Converters Association of South Africa (PCA-SA), whose membership collectively employ the overwhelming majority of the employees employed by all the members of the employers’ organisations that are party to the bargaining council, voted in favour of extension.
According to the latest Department of Labour determination of the representativeness of the MEIBC issued in terms of Section 49 of the LRA, of the 424 365 employees employed in the industry, a total of 277 602 (65,4%) of them are employed by the employers’ organisations that are party to the bargaining council. The SEIFSA-affiliated employer Associations alone represent 58%.
Collectively, the other employers’ associations represent 42% of the employees in the sector, broken down as follows:
- NEASA represents 19%,
- PCA-SA represents 11%,
- the South African Engineers and Founders Association represents 6%,
- the Confederation of Employers Organisation represents 4%,
- the Federated Employers Organisation of SA represents 1%, and
- the South Africa United Commercial & Allied Employers Organisation represents 1%.
In the case of a section 32 extension, where an agreement is negotiated and concluded by bargaining agents who represent and employ the majority of employees falling within the council’s coverage, the extension of a bargaining council agreement is seen as a reasonable and necessary mechanism of sectoral collective bargaining.
Together, the 21 SEIFSA-affiliated Associations – which represent small, medium and big businesses across the sector – and the Plastics Converters Association of South Africa (PCA-SA) account for 69% of all employees employed by all the employer organisations on the bargaining council.
The Collective Main Agreement concluded on 23 August 2017 between the 21-SEIFSA affiliated Employer Organisations and the industries’ five trade unions, for the period 1 July 2017 to 30 June 2020, will now be submitted to the Department of Labour with a request for the Minister of Labour to gazette the Agreement and make it legally binding on all employers falling within its scope (excluding the plastics sector as defined) and scheduled employees in the industry.