Judgment affecting the extension of the clothing bargaining council collective agreement
15 Mar 2013
The Minister of Labour, Mildred Oliphant has accepted the judgment of the KwaZulu-Natal High Court issued on Wednesday 13 March 2013 and has enjoined the Department of Labour to abide by it.
This judgment 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.
Judge Piet Koen 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. This judgment echoes a judgment issued by the Labour Court in Johannesburg in December 2012.
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.
It is 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 remain 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.
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.
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.
The Minister and the department stand by the framework for collective bargaining, including the extension of agreements, contained in the Labour Relations Act. The department also intends opposing the recent court application by the Free Market Foundation which lodges a challenge to the constitutionality of the extension of collective agreements.
Statement issued by Musa Zondi, Department of Labour, March 15 2013
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