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.
