The National Employers Association of South Africa (NEASA) has called on the Minister of Labour, Mildred Oliphant, to take great care in considering any attempt by parties to the Metal Industry Bargaining Council to re-enact the Metal Industry main agreement declared invalid by the Labour Court in December 2012.

 

In a historic judgment on 17 December 2012, the Labour Court set aside a decision by the Minister of Labour in September 2011 to extend the Industry main agreement between the federation SEIFSA and six trade unions (including NUMSA and Solidarity) to parties not part of that agreement.

 

The dispute regarding the legality of this agreement and the extension thereof by the Minister was taken on review by the NEASA in December 2011. The Labour Court found that the parties who signed that agreement did not have the required majority as required by the Labour Relations Act (LRA). Since NEASA won their application on this point, it was not necessary for the Labour Court to make a judgement on any of the other points of illegality made by NEASA its application.

 

According to Gerhard Papenfus, CEO of NEASA, the request to extend the agreement should never have been submitted to the Minister at the time and, when it was, she was ill-advised and misinterpreted the information before her.

 

“The public needs to know that, apart from not meeting the majority requirements, the 2011 Metal Industry Bargaining Council (MEIBC) was admittedly completely unconstitutional at the time that the 2011 agreement, which was later extended by the Minister to non-parties, was signed. The Metal and Engineering Industry, dictating terms of conditions of employment to some 10 000 employers, 400 000 employees and having a 17% impact on the South African economy, is governed by an agreement that was completely illegally obtained. To say the least, this is a national scandal and not only a ‘minor technicality’ as stated by the MEIBC”, Papenfus said.

 

The Labour Court postponed the setting aside of the agreement until April in order to give the Minister the opportunity to consider whether she could now extend the agreement in terms of a different provision of the LRA. 

 

“We are however of the view that the Minister cannot do that. The agreement was, for multiple reasons, illegal in 2011 and any attempt to extend it now will still not comply with the law. We call upon the Minister to strictly act according to the requirements of the Act and to view any submissions made to her by the MEIBC with great care”, Papenfus said.

 

“NEASA will in due course in an extensive memorandum explain to the Minister why she cannot re-enact this agreement. NEASA will not hesitate to again approach the Court if the Minister’s decision in this regard does not in all respects comply with all legal requirements”, Papenfus said. 

 

Civil society has a huge responsibility to ensure that organs of state and statutory bodies – in this case the Department of Labour and the MEIBC – do not abuse their power. This is exactly the role NEASA is playing  in this case.

 

“It is unimaginable that an institution, which in itself admittedly was unconstitutionally and illegally constituted, has constructed secondary legislation for business and even enforce and procecute business”, Papenfus added.

 

NEASA is concerned about the biased and unobjective way in which some officials in the Department of Labour are advising the Minister on these matters. It seems as if they are promoting the MEIBC agenda notwithstanding the Labour Court ruling.

 

“The fact that we challenged this agreement is not at all aimed at prejudicing employees. It is rather an attempt to create an environment where doing business in the Industry could be made more attractive and internationally more competitive, which is the only catalyst that could lead to job creation. The Metal Industry, business, the unemployed and the South African economy in general are all severely affected by illegal and unconstitutional action in the Metal Industry Bargaining Council”, Papenfus said.

 

For more information please contact:

Rikus Truter

079 157 1366

 

NEASA – Established in 1996, the National Employers Association of South Africa is the country’s largest employers’ association registered in terms of the Labour Relations Act. NEASA’s services include qualified legal representation in labour disputes at the CCMA and in bargaining councils within an unmatched fee structure