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OPEN LETTER

30 September 2022

Mr. Thulas Nxesi
The Minister of Employment and Labour
 
Dear Minister

JUST TWO REASONS WHY THE CONSOLIDATED MAIN AGREEMENT MAY NOT BE EXTENDED

There has been a lot of hype and media statements surrounding NEASA’s latest legal action to prevent the extension of the MEIBC’s Consolidated Main Agreement (‘the Agreement’).
 
However, the purpose of this letter is not to address that legal action which, in time, will run its course. 
 
While the court case is ongoing, another process is unfolding in terms of which you must decide whether it would be appropriate to extend the Agreement to non-parties. To this end, you gazetted a request for public comment as to why the Agreement should or should not be extended.
 
NEASA submitted comprehensive comments to you, containing exhaustive reasons as to why the Agreement may not or should not be extended.
 
However, we appreciate the fact that you are not in a position to peruse all the submissions submitted but will, necessarily, rely on the advice of your advisors within the Department to guide you in your decision.
 
To this end, we thought it appropriate to highlight just two of the many objections contained in NEASA’s submission which you must take notice of, as on its own, these issues prevent a Minister from extending the Agreement.
 
The first is that the Agreement incorporates terms that discriminate against non-parties, as it contains a “phase in” exemption process which is only available to “signatories” to the Agreement. This is clearly discriminating against non-parties and is in contravention of section 32(3)(g) of the Labour Relations Act (LRA). In light of this provision, it cannot be argued that upon extension, the exemption will become available to all employers as they will be bound to it. Extension of an Agreement does not convert a non-party into a signatory to that Agreement.
 
The second issue is that the Agreement does not contain exemption criteria as required by section 32(3)(f) of the LRA. The Agreement, at best, contains a procedure to follow when applying for exemption, but that does not amount to criteria.
 
The wording of the Act requires that you must be satisfied that the requirements, among others, have been met before you are permitted to extend agreements. Therefore, these requirements are legal prerequisites, which, if not complied with, will render a decision by yourself to extend, reviewable. 
 
We hope that you will realise that the blatant disregard of legal requirements will simply lead to further litigation and very likely the setting aside of your decision to extend, should you be inclined to do so.     

 

Yours faithfully,

G.C. Papenfus
CHIEF EXECUTIVE

For more information:
NEASA Media Department
media@neasa.co.za