Minister stands by framework for collective bargaining

Friday, March 15, 2013

Pretoria - The Minister of Labour, Mildred Oliphant says she and the department stand by the framework for collective bargaining, including the extension of agreements, contained in the Labour Relations Act.

This comes after Chinese clothing manufacturers in Newcastle and manufacturers under the United Clothing and Textile Association on Wednesday won a court bid to stop the minister from forcing them to pay their workers the minimum wage.

Judge Piet Koen of the KwaZulu-Natal High Court set aside the minister’s extension of the main agreement of the National Bargaining Council for the Clothing Manufacturing Industry to non-parties in December 2010.

He found that the minister was incorrect in relying on a certificate of representivity issued to the Clothing Bargaining Council rather than basing her decision on the representivity of the parties to the collective agreement at the time that the agreement was submitted to the department. 

The judgement now means that clothing manufacturing companies not part of the council do not have to apply the minimum wage agreements.

Oliphant said she accepted the judgment and, along with the Department of Labour, will abide by it.

“While the recent court judgments do serve to correct the way in which collective agreements have been extended to non-parties in terms of the Labour Relations Act, they do not undermine the ability of the minister to extend collective agreements,” said the minister

The judgment echoes a judgment issued by the Labour Court in Johannesburg in December 2012. 

According to the ministry, the judgments stem from a misalignment between two sections of the Labour Relations Act which is being corrected through the amendments to the Labour Relations Act. 

“In the meantime, the department will abide by the judgment and has already changed its practice. Certificates of representivity issued in terms of Section 49 of the Labour Relations Act will not be used when considering extensions of collective agreements,” said the ministry.

It added that it was important for all parties within the scope of the Clothing Bargaining Council to note that the suspension of the agreement does not create a vacuum. 

“On 14 September 2012, the minister extended an amending agreement to non-parties that remains in effect until 31 August 2015. This agreement has not been set aside. It would in any event constitute an unfair labour practice if any employer were to unilaterally change an employee’s conditions of employment,” explained the ministry.

A further collective agreement agreed by the parties to the Clothing Bargaining Council was received in January 2013 and verification of the representivity of the parties was conducted during the same month. 

The department further intends opposing the recent court application by the Free Market Foundation which lodges a challenge to the constitutionality of the extension of collective agreements. –