SASLAW GAUTENG CHAPTER SEMINAR 16 April 2013

1. SASLAW GAUTENG CHAPTER SEMINAR 16 April 2013 Title: The attack on extensions to bargaining council agreements and the implications for collective bargaining Presenters: Adv Frans Rautenbach Prof D’Arcy du Toit

2. 3 main recent events: NEASA v Minister of Labour – Van Niekerk J (Dec 2012) Valuline v Minister of Labour – Koen J (March 2013) FMF v Minister of Labour – launched in March 2013 SASLAW debate

3. FMF’s principal concerns: In terms of s 32, private negotiating parties can, under certain circumstances, compel the Minister – who has no discretion – to extend bargaining council agreements to non-parties SASLAW debate

4. FMF’s principal concerns (cont): It is in the interests of these private parties, who negotiate the terms, to extend their agreements to non-parties as it eliminates competition Economic research indicates that this has a severe impact, not only on current and future jobs, but also on entrepreneurs who are then discouraged from starting up enterprises within these sectors SASLAW debate

5. FMF seeks 4 amendments to s 32 – firstly: ‘(1) A bargaining council may ask the Minister … to extend a collective agreement … to any non-parties … if at a meeting of the bargaining council: (a)… (b)one or more registered employers' organisations, whose members employ the majority of the employees employed by[replace with ‘constitute the majority of’] the members of the employers' organisations that are party to the bargaining council, vote in favour of the extension.’ SASLAW debate

6. Secondly: ‘(2) Within 60 days of receiving the request, the Minister must [replace with ‘may’] extend the collective agreement … .’ SASLAW debate

7. Thirdly: ‘(3) A collective agreement may not be extended in terms of subsection (2) unless the Minister is satisfied that- (a) … (c) the members of the employers' organisations that are parties to the bargaining council will, upon the extension of the collective agreement, be found to employ the majority of all the employees[replace with ‘constitute the majority of the employers’] who fall within the scope of the collective agreement.’ SASLAW debate

8. Fourthly: ‘(5) Despite subsection (3) (b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if- (a) the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and SASLAW debate

9. Fourthly (cont): (b) the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectoral level or in the public service as a whole.’ [Delete entire sub-section] SASLAW debate

10. FMF contends that 5 rights are violated: Rule of law Right to freedom of association Right to dignity Right to equality Right to fair administrative justice SASLAW debate

11. The scope of FMF’s challenge: Is narrower than reported in the press But will have very significant consequences if successful SASLAW debate

12. FMF’s challenge is controversial: Pierre De Vos – Constitutionally Speaking: ‘There may be a few eccentric judges out there (free market fundamentalist judges like Nigel Willis come to mind) who might be willing to entertain such frivolous arguments. But given the long line of CC judgments affirming the transformative nature of the Constitution and given the firm commitment in s 23 of the Constitution to collective bargaining, it is difficult to see how the CC will declare invalid rules aimed at making collective bargaining agreements more effective.’ But in truth, wherever one’s allegiance may lie, the arguments are far from frivolous SASLAW debate

13. The debate tonight: Is not about the merits of FMF’s constitutional challenge, although it takes place in the context thereof Rather it is about the implications for collective bargaining of a successful attack on s 32 Frans Rautenbach will argue that the effect will be to make collective bargaining better Prof D’Arcy du Toit will argue the converse SASLAW debate