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Dear Industry Employer
The Labour Court in Johannesburg has dismissed an urgent application by 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 decisions purportedly taken on 17 September and 8 October 2014.
On 14 November 2014 the Labour Court heard final arguments. Yesterday 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 belief 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. This arbitration already confirmed 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 not 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 (mafia) manner. This is a sad day for the administration of justice.
The NEASA legal team is already in a process of preparing an appeal to the Labour Appeal Court. We will also petition the Minister of Labour in this regard and we are 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. Should the Minister, notwithstanding NEASA's appeal to her, extend this unconstitutionally obtained agreement to non-parties, we will take that decision of the Minister on review. In fact, since the extension of this agreement will only result in further job losses, NEASA will contest all attempts by the Minister to extend this unconstitutional arrangement with all means at our disposal.
Regarding this whole debacle, I want to share the words of Og Mandino with you:
I will persist until I succeed.
The prizes in life are at the end of each journey, not at the beginning; and it is not given to me to know how many steps are necessary in order to reach my goal. Failure I may still encounter at the thousandth step, yet success hides behind the bend in the road. Never will I know how close it lies unless I turn the corner.
Always will I take another step.
If that is of no avail I will take another, and yet another.
In truth, one step at a time is not too difficult.
I will persist until I succeed.
Kind regards
Gerhard Papenfus