Johannesburg - There’s contestation among labour industry players on whether the court ruling that dismissed the Free Market Foundation’s (FMF) case against collective bargaining was a victory for those who opposed the case.
This follows sentiments by the foundation and its supporters, including the National Employers Association of SA (Neasa) that the ruling has in fact given them relief regarding the extension of collective bargaining agreements to non-parties.
In their judgment, the full bench of judges who heard the matter at the Pretoria High Court clarified that the extension of such agreements was subject to other existing laws including the Promotion of Administrative Justice Act (PAJA).
This meant that the decision of the minister to extend agreements to non-parties as provided for in the Labour Relations Act (LRA), had to be applied after the consideration of Paja which weighed public interest.
However, FMF had lost the case as they approached the court seeking a constitutional court amendment to the rights of the minister of labour as provided for in the LRA.
“In his judgement Judge Murphy brought complete clarity to the issue by finding that, when a bargaining council extends a collective agreement to non-parties, it does so either as an organ of state or as a juristic person exercising a public power or performing a public function under legislation or an empowering provision, and therefore that the Promotion of Administrative Justice Act (PAJA) applies, with all the checks and balances accompanying it,” said Neasa in a statement.
All parties had however agreed that the judgement had brought clarity to the collective bargaining system, with the minister of labour, Mildred Oliphant hailing it a “victory for collective bargaining in SA”.
The foundation and other organisations like Neasa had argued that the minister’s extension of collective agreements on non-parties stifled growth and negatively affected job creation.
The opposers of the litigation by FMF said they considered the ruling a win for workers as the protection of the minister’s powers as provided for in section 38 of the LRA meant exploitative employers would still be bound by council agreements.
The ruling was made on Wednesday.
Labour Bureau