1 December 2014
The Labour Court in Johannesburg has dismissed an urgent application by the National Employers’ Association of South Africa’s (NEASA) to prevent the Metal and Engineering Industry Bargaining Council (MEIBC) from requesting the Minister of Labour to extend the July 2014 agreement between the federation Seifsa and trade unions, to parties/employers who were not party to that agreement.
On 25 September 2014 and again on 4 November 2014, NEASA successfully approached the Labour Court for interim relief preventing the MEIBC from requesting Minister Mildred Oliphant to extend the 2014 settlement agreement to non-parties based on a decision purportedly taken on the 17th of September 2014.
On 14 November 2014 the Labour Court heard final arguments. This morning the Labour Court made public its ruling, dismissing NEASA’s urgent application. On a first and cursory reading of the judgment, it is clear that the Court has erred in many ways.
Firstly the Court has premised its findings on the believe that the parties were still involved in an arbitration to determine whether or not the MEIBC was properly constituted in terms of its Constitution; whilst that arbitration was concluded in NEASA’s favour in November 2011 already confirming that the Council’s structures were invalidly operating contrary to its own Constitution.
Secondly, the Court has ignored the fundamental differences between employers’ organisations and employers’ federations, effectively overruling the provisions of the statute giving powers (and protection) to federations that it simply does have under the employment laws of South Africa.
‘The effect of this judgement is that decisions which affect non-parties to an agreement can be taken in an unconstitutional environment and in an unconstitutional manner. This in effect implies that no rules need apply when a bargaining council makes a decision. This judgement opens the door for bargaining councils to function in an illegal, unconstitutional and lawless manner. This is a sad day for the administration of justice,’ says Gerhard Papenfus, NEASA Chief Executive.
NEASA will study this judgement and will announce further actions in this regard in due course. Although an appeal to the Labour Appeal Court is likely, NEASA is hopeful that the Minister will act conscientiously when she is required to satisfy herself whether or not the Council’s decision complies with the peremptory provisions of the Labour Relations Act.
‘The July ’14 agreement was reached outside of constitutional structures and in an unconstitutional manner. This, more than anything else will lead to the downfall of centralised collective bargaining. Employers will not subject themselves to these kind of unlawful agreements. NEASA will continue to contest all attempts by the Minister to extend the agreement with all means at our disposal. The extension of this agreement will only result in further job losses in an already crippled Metal Industry,’ says Papenfus.
For more information:
Sya van der Walt-Potgieter