The struggle against bargaining councils will continue
Even though the Free Market Foundation (FMF) has lost its case against the compulsory extension of bargaining council agreements to "non-parties", this is unlikely to be the end of the matter.
As Judge John Murphy said in the Gauteng Division of the High Court in Pretoria last week, the "persistently high level of unemployment and its attendant negative social consequences" are the "most intractable social and economic problem" facing South Africa.
While dismissing as "wholly wrong" the FMF's arguments that the absence of adequate state or judicial control rendered the "legislative scheme" for extending agreements unconstitutional, he pointed out that there might be even better remedies under the Promotion of Administrative Justice Act. The extraordinary powers that bargaining councils enjoy are also being challenged by the National Employers Association of South Africa in the metal and engineering sector.
With two other judges concurring, Judge Murphy made no order of costs against the FMF, which must have come as a great relief to that organisation as it faced 52 respondents represented by half a dozen senior counsel, along with eight juniors, plus firms of attorneys representing the minister of labour, bargaining councils, and trade unions. "There should be no quibble with [the FMF's] activism on behalf of small business and the unemployed," he said. "Many will argue that as a society we need to think outside the box and cannot simply continue with business as usual."
Here goes. Although the FMF narrowed its case to questioning the manner in which bargaining council agreements were extended by the minister to "non-parties", the power to extend them should actually be removed altogether. Agreements, in other words, should bind only those who sign them.