Bargaining Council Agreements To Non-Parties

Section 23 of the LRA deliberately limits the right to strike in order to achieve orderly collective bargaining and a fair and timely resolution of disputes. The restriction may be generally unfair, but may be justified in the circumstances of a particular case (National Union of Metalworkers South Africa obo members` v South African Airways Soc Limited – Another [2017] ZALAC 32 Par 34). To verify the zeal of the restriction, we must press it against the section 36 test. Article 36 of the Constitution states that restriction must be appropriate and justified in an open and democratic society based on human dignity, equality and freedom. Factors such as (a) the nature of the law; (b) the importance of the purpose of the restriction; (c) the nature and extent of the restriction; (d) the relationship between the limitation and its purpose; and (e) less restrictive alternatives, which involve restricting the law while respecting the same objective, should be taken into account. The AMCU submitted that each mine and operation was a separate “workplace” within the meaning of s23 (1) (d) and that the collective agreement was not extended to the jobs on which it was acting through a majority and was therefore authorized to strike in those mines or businesses. The forum in which the agreement was concluded operates as a negotiating council, but is not recognized or registered as such, so that the agreement must be renewed, if necessary, within the meaning of Section 32 of the LRA. Section 32 provides that the Minister of Labour may extend a collective agreement under a collective agreement, provided that majority unions and majority employers vote in favour of such an extension. The AMCU therefore argues that what the board is examining is in fact consistent with the requirements of Section 32. Alternatively, the AMCU presents Swiere with the constitutionality of Section 23, paragraph 1, point (d), to the extent that it unduly restricts the right to strike, collective agreement and association.

Finally, the union argued that the extension of Section 23inches the rule of law to the extent that it constitutes the exercise of public authority without oversight or recourse in cases of abuse of that power and that the private actors exercising that power are not bound by the obligations of public administration and the public interest set out in section 195 of the Constitution. This note limits the analysis to the two above issues and does not address the rule of law argument to which the Tribunal has responded appropriately. Bargaining councils have a long history of labour law and labour relations in South Africa. They play an important role in collective bargaining, particularly in issues of mutual agreement, such as wages. B, which affect the vast majority of workers and employers. The LRA bill aims to amend s32 to create a procedure and criteria for the extension of collective agreements to non-parties by the Minister of Labour.