An appraisal of the extension of bargaining council agreements to minority stakeholders in South Africa

Abstract

The purpose of this dissertation is to assess whether the South African model of ex-tending majority-support bargaining council agreements is constitutional and whether it passes scrutiny when compared to the norms of the International Labour Organisa-tion (“the ILO”) and to comparative models. In conducting the study, a social justice perspective is followed as both the Constitution of the Republic of South Africa, 1996 and the Labour Relations Act 66 of 1995 direct those who apply the law to do so in a manner that will promote and achieve social justice. This study uses the relevant ILO conventions, recommendations and norms to assess whether the extension of majority-support collective agreements is supported on an international law basis. The ILO conventions, recommendations and norms provide the background to assess whether the South African model of extending collective agreements complies with international law obligations. The historical development of the extension of bargaining council agreements since the Industrial Conciliation Act 11 of 1924 is considered with a view to establish the original rationale of this mechanism and whether such rationale is still relevant today. A historical perspective of the extension mechanism further provides a valuable insight into the formulation of the current extension mechanism. In assessing the extension of bargaining council agreements the different types of extension mechanisms are considered, as the extension mechanism itself (and the procedural prerequisites thereof) is informed by the question whether or not a majority numerical requirement had been met. Relevant case law is also considered to deter-mine the South African courts’ stance on the majoritarian principle and the extension mechanism. In the international comparison, the models for establishing uniform conditions of em-ployment are assessed with reference to Namibia, Australia and the Netherlands. These models provide interesting alternatives to and considerations for the South Af-rican system.