WATCH: Feud between Cosatu and FMF

The feud between Congress of South African Trade Unions (Cosatu) and Free Market Foundation (FMF) about section 32 of the Labour Relations Act (LRA) continues.

The organising secretary of Cosatu Theodora Steele is adamant that they will continue opposing the FMF’s challenge to section 32 of the LRA and they will even picket during court hearings.

Steele said the FMF was challenging Section 32: Extension of collective agreement concluded in bargaining council.

Section 32(1) stipulates that a bargaining council may ask the Minister in writing to extend a collective agreement concluded in the bargaining council to any non-parties to the collective agreement that are within its registered scope and are identified in meeting of the bargaining council request…

According to Steele, the principle of “Centralisation and extension of agreement in the bargaining council has been a standard practice until FMF launched its attack in 2013.” Since then, FMF has charged itself with a task of challenging the concept and the application of centralised bargaining, according to Cosatu.

However, this section as it stands, allows the following parties to vote in favour of the extension:

(a) one or more registered trade unions whose members constitute the majority of the members of the trade unions that are party to the bargaining council and

(b) one or more registered employers’ organisations, whose members employ the majority of the employees employed by the members of the employers’ organisations that are party to the

bargaining council…

Once such a request is received the Minister must within 60 days extend the collective agreement by publishing a notice in the Government Gazette declaring the collective agreement will be binding on the non-parties specified in the notice.

The constitutionality of the compulsory extension is the crux of FMF’s application.

The implications of the current provisions of Section 32 is that the Minister of Labour has no discretion in the matter to consider the merits of such a request for extension, particularly that ”imposing higher wages on small businesses that cannot afford them means jobs are lost and new ones are not created,” according to Herman Mashaba, founder of Black Like Me. He further explained

that they and FMF “are in full agreement with [Cosatu] that there should be collective bargaining.”

FMF spokesperson Jayne Boccaleone explained that the principles concerned in the Act were that of private parties set wages and conditions of employment and these are being extended to competitors and other groups that are not in the bargaining process at all.

FMF’s constitutional challenges to the section are directed at the structure and content of the section.

Their challenges are based on the fact that participants in the council are private actors to whom the state cannot delegate practical powers of statutory regulation without violating the requirements of the Constitution.

They also argued that the section, by distorting the provisions of majority rule, permits a minority to compel the majority into complying with a standard set of terms and conditions of employment.

“Under the LRA private parties can, under certain circumstances, compel the Minister to publish and extend these agreements to parties who were not, in any way involved in these agreements,” said Boccaleone.

She further elaborated that it was in the interest of these private parties, who negotiate the terms, to extend their agreement to non-parties as it eliminates competition.

Members of Cosatu picket outside the FMF premises and they plan to picket every Friday until the court proceedings.

Details: Cosatu 082 563 6955; Free Market Foundation 011 884 0270.

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