Neasa considering approaching Labour Court with urgent application following non-responsiveness from the Labour Minister
The National Employers' Association of South Africa (NEASA) is considering approaching the Labour Court with an urgent application that would force Minister Mildred Oliphant to give reasons for extending the industry main agreement in the Metal and Engineering Bargaining Council to non-parties.
'It's apparent that the Minister is not serious about opposing the review application and in doing so she's demonstrating her lack of interest in the well-being of the Industry. The fact that she's not responding to this urgent matter is damaging to the Industry,' says Gerhard Papenfus, NEASA CEO.
On August 16, the Labour Minister committed herself in a letter to NEASA's legal team to submit her answering affidavit no later than 28 August 2013. However, despite numerous attempts to get her office to provide the necessary documents, the Minister is yet to answer questions posed to her around the decision to extend the agreement to all parties.
'If we don't receive a response from the Minister within days, we will have no choice but to bring an urgent application for suitable interim relief and request the court to make an adverse cost order against the Minister,' Papenfus said.
In August, NEASA filed a comprehensive supplementary founding affidavit as part of its application to set aside the decision by the Minister of Labour to extend the fraudulently obtained agreement to the Metal Industry. In the supplementary affidavit, NEASA attacked the latest extension by Minister Mildred Oliphant on, amongst others, the following grounds;
- The Minister of Labour has extended an agreement to non-parties which has never served before any constitutionally prescribed forum of the MEIBC;
- On 14 January 2013, three individuals, having had no authority whatsoever to do so, signed an ostensible agreement outside of any recognised Council Forum, which the MEIBC on an irregular manner presented to the Minister as an Industry agreement;
- The Minister was obviously aware of certain material defects in the 'agreement', as her Department pointed that out to the MEIBC; this notwithstanding she extended this invalid agreement on 4 April 2013 without her concerns being addressed; and
- The Minister extended this agreement without having had any proper consideration of the levels of representativaty of the parties to the Council.
'Notwithstanding being requested on numerous occasions to do so, the Minister has failed to give any reasons for extending the agreement to non-parties. It therefore must be presumed that the decision under review was taken without good reason, that evidence before her was ignored and that the Minister has acted irrationally and without good reason', says Papenfus.
On 20 December 2012 the Labour Court ruled in favour of NEASA when it set aside the 2011/12 Metal Industry main agreement.
'With that in mind, the Minister should have been more cautious in extending a further agreement. It is reckless for a Minister to promulgate secondary legislation onto an Industry when she is aware of material defects in what is presented to her. The uncertainty this is causing in the Industry is just a further deterrent to growth and job creation', Papenfus said.
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Sya van der Walt