Extension of Collective Agreements In Terms of Section 23(1)(D) of The Labour Relations Act With a Specific Focus on Retrenchments

By Alex Davies

 

  1. Introduction
    • The principle of application of majoritarianism as endorsed by the Labour Relations Act (“LRA”) is trite. The principle essentially prescribes that the view of the statistically dominant employees within a workplace prevails over the views of the minority.
    • This article provides a brief overview of the principles of extensions of collective agreements[1] as well as the application thereof to instances relating to retrenchments.
  2. Collective agreements:
    • The LRA[2] provides that the purpose of the Act is inter alia for the self-regulation of matters of mutual interest by way of collective bargaining between employers, employers organisations and unions acting on behalf of their members. In this was orderly[3] collective bargaining is envisaged, with employees participating[4] in decision making within the workplace.
    • Collective agreements are binding and enforceable on the parties to the agreement. Collective agreements can also be extended to non-parties to an agreement with the effect that the non-parties are similarly bond to the terms of the agreement as if they were signatories to the agreement. Extensions of collective agreements are either done in terms of section 23(1)(d)[5] or section 32[6]. For the purposes of this article the focus is placed on extensions in terms of section 23(1)(d).
    • In order for a collective agreement to be extended to non-parties (employees and their trade unions) the employees must be identified[7], the agreement must expressly bind the employees[8] and the trade union parties to the collective agreement must represent the majority of the employees within the workplace[9].
    • The constitutional validity of the principle of extensions in terms of section 23(1)(d) has been upheld as constitutionally valid by the Constitutional Court in AMCU and others v Chamber of Mines of South Africa and others[10].
  3. Collective Agreements In Relation To Retrenchments
    • In the matter of Association of Mineworkers and Construction Union (AMCU) and Others v Bafokeng Rasimone Management Services[11] the Applicants challenged the constitutionality of the extension of collective agreements to matters of mutual interest concerning the retrenchment of employees.
    • Factually, Bafokeng Rasimone Management Services (“Bafokeng”) entered into a collective agreement with the majority unions in the workplace being the NUM and UASA who together represented the majority of the workers in the workplace. The parties engaged in consultations and negotiations relating to the possible retrenchment of employees at the mine. AMCU was not party to these consultations or to the agreement which was ultimately reached. The agreement was extended to non-parties thereto in accordance with the prescripts of section 23(1)(d). Employees were retrenched in accordance with the provisions of the agreement.
    • AMCU challenged the constitutionality of the extension in this context and alleged that it resulted in unfair dismissals of individuals who were not party, by way of representation, to the agreement. The Labour Court dismissed the application finding that extensions in terms of section 23(1)(d) were constitutionally acceptable.
    • The Labour Appeal Court (“LAC”) handed down the judgment[12] in the appeal in the matter on 26 June 2018. The LAC confirmed it endorsed the principle of majoritarianism in the workplace and that it was applicable to instances of retrenchments.
    • The LAC stated that the parties to the agreement have an obligation not to unfairly discriminate against non-parties. In the event of discrimination it would be possible for an employee to challenge the fairness of their dismissal.
    • The LAC also confirmed that the extension of a collective agreement amounts to the exercising of a public power which is in principle possible to challenge by way of review proceedings. The LAC was theretofore satisfied that disgruntled employees do retain a right of recourse in law notwithstanding an extension of a collective agreement to them. [13]
  4. Conclusion
    • The extension of collective agreements remains a binding and constitutionally valid principle in the South African law. This may be utilised in matters of mutual interest including retrenchments. There are sufficient safeguards in place to ensure that aggrieved employees have a right of recourse in instances such as discriminatory or other unfair conduct which can result in disputes relating to the fairness of dismissals or reviews of the extension of impugned collective agreement.

 

[1] In terms of section 23(1)(d) of the LRA

[2] Section 1 of the LRA

[3] Section 1(d)(i) of the LRA

[4] Section 1(d)(iii) of the LRA

[5] Collective agreements concluded by representative parties within a specific workplace

[6] Collective agreements concluded under the auspices of a bargaining council

[7] Section 23(1)(d)(i) of the LRA

[8] Section 23(1)(d)(ii) of the LRA

[9] Section 23(1)(d)(iii) of the LRA

[10] 2017 (3) SA 242 (CC)

[11] (2017) 38 ILJ 931 (LC)

[12] Currently unreported judgement under case number JA23/2017

[13] At paragraph 52

You can download this newsletter as a PDF document, or send the link to a friend.
Download as PDF

Document of the Month

Signing away retrenchments

FREE Download

Upcoming Events


Course 7 - Guide to Retrenchments & Transfer of Business

Date: 23/01/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Johannesburg


POPI Breakfast Seminar

Date: 05/02/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Protea Hotel O.R. Tambo Airport


POPI Breakfast Seminar

Date: 07/02/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Cape Town


Course 8 - Conducting Conciliations & Arbitrations in the CCMA

Date: 12/02/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Protea Hotel O.R. Tambo Airport


Course 8 - Conducting Conciliations & Arbitrations in the CCMA

Date: 19/02/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Cape Town


Course 6 - Managing day to day HR

Date: 27/02/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Protea Hotel O.R. Tambo Airport


Course 10 - Basic Labour Relations - Overview of the LRA & BCEA

Date: 05/03/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Protea Hotel O.R. Tambo Airport


Course 10 - Basic Labour Relations - Overview of the LRA & BCEA

Date: 07/03/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Cape Town


Course 2 - Chairing & Initiating Disciplinary Hearings

Date: 12/03/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Protea Hotel O.R. Tambo Airport


Course 3 - Investigating & Charging in Disciplinary Hearings

Date: 26/03/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Protea Hotel O.R. Tambo Airport


Course 3 - Investigating & Charging in Disciplinary Hearings

Date: 28/03/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Cape Town


Course 4 - Conflict Management & Collective Labour Law

Date: 04/04/2019 08:30:00 AM
Event Type: Public Workshop
Venue: Protea Hotel O.R. Tambo Airport


See more...
Title Description Published By
June 2018
GDPR / POPIA – Where Technology & Ethics Have Reached a Crossroad Megan Grindell View
April 2018
Companies that cannot afford the National Minimum Wage Department Of Labour View
March 2018
Portfolio Committee on Labour Extended Invitation for Commentary By SASLAW View
February 2018
Business Rescue Proceedings – A Brief Overview Alex Davies View
January 2018
Collection of debt from employees Alex Davies View
November 2017
Publication Of New Bills Which Impact Employment Alex Davies View
September 2017
POPI Regulations & the duties of the Information Officer Johanette Rheeder View
August 2017
Is a Break in the Trust Relationship, a prerequisite to Dismissal? Alex Davies View
July 2017
Temporary Employment Services - NUMSA vs Asign Services Alex Davies View
June 2017
Probation and probation related dismissals in the CCMA Johanette Rheeder View
May 2017
Job descriptions and extra duties required of an emplyee Johanette Rheeder View
March 2017
The extention of collective agreements in the workplace Alex Davies View
January 2017
The application of the prescription act to disputes under the labour relations act Alex Davies View
November 2016
Who can represent parties at CCMA proceedings? Yozan Botha View
September 2016
“Solidarity for Ever” Collective bargaining – rights and duties Johanette Rheeder View
July 2016
POPI Implementation on the horizon Johanette Rheeder View
May 2016
Applying the rule test in disciplinary hearing Johanette Rheeder View
April 2016
Does the managerial prerogative still apply during the recruitment process? Johanette Rheeder View
March 2016
The Stigmatising Effect of Medical Testing on Mental Illness Kellie Hennessy View
February 2016
Office Romance - A Lesson in managing personal relationships at work Kellie Hennessy View
January 2016
Rights for Males to Maternity Leave Benefits Kellie Hennessy View
December 2015
Interdicting Disciplinary Hearings Johanette Rheeder View
November 2015
The Right to Natural Justice in Disciplinary Hearings Xander Wehncke View
October 2015
The Protection of Personal Information Act No 4 of 2013 (“POPI”): Rethink the ‘architechture’ of your business Kellie Hennessy View
September 2015
Load Shedding in the Workplace: Negotiate Back the Power Kellie Hennessy View
July 2015
Retrenchment - Do We Recognise The Effect? Johanette Rheeder View
June 2015
The new CCMA rules - The ultimate relief? Johanette Rheeder View
May 2015
Medical Incapacity, Disability and Discrimination Kellie Hennessy View
April 2015
Breach of the trust relationship in employment: What to prove and how to prove it Xander Wehncke View
March 2015
The exposure of senior employees in terms of Labour Relations Amendment Act 2012 Johanette Rheeder View
February 2015
The Correct Approach to a Reviewable ‘Error in Law' Kellie Hennessy View
January 2015
E-Cigarettes and the Workplace Kellie Hennessy View