oa De Jure - Extension of collective agreements in terms of section 23 (1) (d) of the LRA and the “knock on effect” on the right to strike : AMCU v Chamber of Mines of South Africa CCT87/16 [2017] - case law

Volume 51 Number 2
  • ISSN : 2225-7160



The Labour Relations Act (Act 66 of 1995) (LRA) aims inter alia to promote orderly collective bargaining, collective bargaining at sectoral level and to advance the democratization of the workplace (section 1 of the LRA). This is in keeping with the right of trade unions, employers and employers’ organisations to bargain collectively enshrined in section 23(5) of the Constitution of South Africa, 1996. The end product of collective bargaining is a collective agreement as defined in section 213 of the LRA. Collective agreements are an effective tool to regulate terms and conditions of service and other matters of mutual interest (Du Toit (ed) et al Labour relations Law (6th ed) (LexisNexis 2015) 309). These collective agreements are capable of being extended to other parties who are not signatories thereto. Two possibilities of extension are envisaged in section 23(1)(d) and section 32 of the LRA. Section 23(1)(d) provides that a collective agreement binds employees who are not members of the trade union or trade unions party to the agreement provided that three conditions are met, viz the employees are identified in the agreement; the agreement expressly binds the employees; and the trade union or trade unions concluding the agreement enjoy majority membership of employees employed in that workplace (See Fakude & others v Kwikot (Pty) Ltd [2012] ZALCJHB 169 par 34). The extension envisaged in section 32 relates to collective agreements concluded at a bargaining council and which require the endorsement of the Minister for them to be extended to an entire sector. The Constitutional Court in AMCU v Chamber of Mines of South Africa CCT87/16 [2017] was faced with a contended section 23(1)(d) extension applicable at workplace level.

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