COSATU and South African workers score a huge court victory over the Free Market Foundation

4 May 2016

The Congress of South African Trade Unions is pleased with the decision by the Gauteng High Court to dismiss the Free Market Foundation’s application to challenge the principle and the practice of extending bargaining councils agreements in South Africa to no non parties. In their court challenge the FMF  targeted COSATU , The Minister of Labour , Bargaining Councils and other trade unions. This is huge victory for COSATU and the workers in general and we are very happy that the court dissected their application and concluded that it misses the mark and therefore has no merit.

This court’s decision has affirmed the centrality and importance of collective bargaining. If the court had entertained the FMF’s argument then all collective bargaining agreements will become irrelevant, because they will not be binding on all employers in the sector they cover. The current bargaining processes do not even dent the apartheid wage structure that remains firmly intact. Even in its current form, the collective bargaining system has failed to meet all its objectives. The number of workers covered by bargaining council agreements has been falling and more workers are covered by Sectoral Determinations than by bargaining council agreements.

 The principle of extending agreements -but not rights- to non parties is provided for in Section 32 of the Labour Relations Act 1995. Since the 1995 LRA, centralisation and extension of agreements has been standard practice, where collective agreements exist.

The FMF launched its first attack after COSATU had called for the intensification of its organising and bargaining campaigns in the 2013 conference and has been threatening to challenge the constitutionality of these agreements, arguing that ‘centralised bargaining is no equivalence of collective bargaining, the two are semantically and operationally not the same.’ They have been trying to challenge both the concept and the application of Centralised Bargaining.

They argued that “the state is delegating/conferring [statutory] powers, through centralised bargaining councils, to private parties.’  According to FMF’s case ‘[this] cannot be accomplished without causing an infringement on the constitutional rights of others’

But they failed to explain why they considered the bargaining council and the Minister to be unrestrained by the principles of judicial review. But COSATU has always insisted that the FMF’s analysis was fundamentally misconceived because bargaining councils are not private bodies exercising private power. Bargaining councils derive their power both from the LRA and collective agreements and they perform their public functions under the LRA. They also misconstrued the nature of the Minister’s discretion under section 32(2) of the LRA and the manner in which the interests of non-parties are protected in the legislative scheme.

The General Secretary of COSATU Cde Bheki Ntshalintshali dismissed the FMF’s argument and clarified them when he said “Although section 32(2) provides that the Minister “must extend a collective agreement”, section 32(3) provides that the Minister may not do so “unless the Minister is satisfied” that the substantive requirements set out in section 32(3) are met. Accordingly, the Minister is required to form a view on whether the requirements are met and to extend a collective agreement only if satisfied that they are met. This approach is more protective of the interests of non-parties than conferring a “free” discretion on the Minister to extend collective agreements based on broad policy considerations or the public interest.”                         

COSATU will continue to fight against those who want to erode workers rights and attack collective bargaining. The federation is unwavering in its call for Mandatory Centralised Collective Bargaining system.

Our message is very clear to the FMF; we will push back against their offensive and will not allow workers rights to be eroded. We are ready to fight on all fronts to protect workers and consolidate their victories.

What South Africa needs is to strengthen collective bargaining and develop policies and regulatory frameworks to promote wage equity, and aligns centralised bargaining with industrial and economic development strategies. Organisations like the DA and the FMF want to erode workers hard-won gains and enslave them to a future of slave wages and destitution.

Issued by Sizwe Pamla, National Spokesperson COSATU, 4 May 2016