Extension of bargaining council agreements : international norms and the situation in South Africa

Abstract

Section 23(5) of the Constitution protects this right to engage in collective bargaining and the Labour Relations Act 66 of 1995 (LRA) promotes collective bargaining, in particular at sectoral level. As part of the promotion of sector level bargaining, parties in a Bargaining Council rnay request the Minister of Labour to extend their collective agreements to bind non-parties. Sections 32(2) and (3) of the LRA provide for automatic extension where the parties represent a majority of the industry, whereas when there is less than majority representativeness by the parties to the Bargaining Council, then section 32(5) of the LRA permits the Minister of Labour to exercise her discretion whether to grant the extension request or not. The Free Market Foundation ("FMF") recently instituted an attack against elements of the extension of bargaining council agreements. They initially that section 32(5) of the LRA is unconstitutional and infringes the majoritariansm principle, however this part of their argument was later abandoned. In my dissertation, I explore the FMF's abandoned argument to assess whether it has any merit. In order to do this, I also consider the international and foreign positions regarding the extension of collective agreements to nonparties.