Volume 25 No. 11 June 2016 What constitutes a strike? Disputes of interest and employment contracts Managing Editor: P.A.K. le Roux Hon. Consulting Editor: A.A. Landman Published by By P.A.K. le Roux T he definition of a strike contained in section 213 of the Labour Relations Act, 66 of 1995 (LRA) reads as follows the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory. An analysis of this definition reveals that a strike consists of three elements. The first is a number of actions that must be committed by employees. There must be a refusal to work, the retardation of work or the obstruction of work. The second is that these actions must be undertaken by employees in a concerted manner. The third is that the concerted action of employees must be for a specified purpose, namely to remedy a grievance or to resolve a dispute in respect of a matter of mutual interest between employer and employee. This contribution discusses two recent decisions of the Labour Appeal Court (LAC) dealing with the first of these elements and in particular with the question of what constitutes work when it is referred to in the definition of a strike? The first is the decision in G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of South Africa and others (unreported JA51/15 26/5/2016). The employees in this matter were employed as security guards, road workers and counting-house employees by G4S Cash Solutions SA (Pty) Ltd (G4S). Box 31380 Tokai 7966 Tel: +27 21 788 5560 ISSN-1995-218X e-mail: cll@workplace.co.za www.workplace.co.za Inside... Challenging the extension of Bargaining Council agreements p123 Page 119
Clause 6 of their contracts of employment, dealing with working hours, read as follows- WORKING HOURS 6.1 The employee shall work a six-day week and his ordinary hours of work will be 45 hours a week. 6.2 The starting and finishing times of work are determined by operational requirements and may vary from day to day. 6.3 If the employee has to work more than 45 hours a week, this additional time will be counted as overtime. Clause 7 of their contracts of employment, dealing with overtime, read as follows- OVERTIME 7.1 The company undertakes to give the employee reasonable prior notice if overtime is to be worked, except in emergency situations when overtime shall be worked without any prior notice. The employee may not unreasonably refuse to work any overtime requested by the company. 7.2 All overtime worked shall be paid at the prescribed legislated rate. There was also a collective agreement applicable to the employees. This provided that the ordinary hours of work of employees would not exceed 45 hours in any week, and that the ordinary working hours per day would not exceed nine hours for employees who worked a five day week, and eight hours for employees who worked a six day week, provided that the employees ordinary hours of work could not exceed five hours on a Saturday. During 2004, G4S introduced an arrangement in terms of which the employees were required to work on Sundays and public holidays in order to meet the demands of its clients. This was done on the basis this work would be done on a voluntarily basis and that employees would be paid a fee for this work. This fee was increased each year on 1 May. In 2015 G4S decided not to increase the fee payable for Sunday work. The employees then decided not to work on Sundays. They were disciplined for this refusal. One person was dismissed and other employees received final written warnings. The union representing these employees advised them to continue rendering services on Sundays when requested to do so by the employer, pending a resolution of the dispute. The union then approached the Labour Court for an order to the effect that these employees were not obliged to work in excess of the six-day week provided for in their contracts of employment. The Labour Court granted this order as well as a second order to the effect that the warnings that had been issued, and the dismissal that had occurred, be set aside. G4S took this decision on appeal to the LAC. On appeal G4S s legal representative raised an argument that challenged the Labour Court s jurisdiction to hear the cae. (By this time it had been conceded that the Labour Court did not have the power to grant the second order.) He argued that this dispute was a mutual interest dispute and that, when the employees refused to work on Sundays, they had engaged in a strike. He contended that this meant that the dispute was not one which fell within the jurisdiction of the Labour Court. This was a dispute that should have been referred to the Commission for Conciliation, Mediation and Arbitration or a bargaining council in terms of section 64(1) of the LRA. If the issue remained unresolved, the employees could acquire the right to embark on a protected strike, provided that the further requirements of section 64 Page 120
and the requirements of section 65 of the LRA had been met. This dispute did not involve a dispute of right and the Labour Court therefore had no jurisdiction to deal with the matter. The Court rejected this argument in the following terms - [11] In the present case, the question which must be asked is whether the relevant employees refused to engage in employment pursuant to a duty imposed upon them which was sourced in their contracts of employment. As noted, clause 6 of the contract of employment provided that the employees shall work a six-day week and that their ordinary hours of work would be 45 hours per week. The fact that the contract provided, in addition, that overtime might be required could not be construed to mean that, in effect, the relevant employees were obliged to work a seven-day week. To the extent that there is any doubt, clause 7 clarifies the position: The employee may not unreasonably refuse to work any overtime requested by the company. (My emphasis). The contract of employment made it clear that there was no obligation upon employees to work every Sunday, pursuant to which there was a corresponding right enjoyed by the appellant to demand that the relevant employees would work a seven-day week. [12] This conclusion means that when the employees refused to continue to work on Sundays, the refusal was not based upon any right sourced in the contract which was thus legally enjoyed by the appellant. A refusal to continue to work on Sundays did not fall within the definition of strike as set out in s 213 of the Act. The Court went on to hold that there was no justifiable basis to conclude that the dispute between the parties was one of interest which would have triggered a dispute resolution mechanism different from recourse to the Labour Court - which is empowered to deal with disputes of right. Two points emerge from this excerpt. The first is that the term work as utilised in the definition must be work that employees are contractually required to perform. This approach becomes clear in the next part of the decision where the Court considered and rejected an argument that it had been a tacit term of the contracts of employment of the employees concerned that they were contractually obliged to work overtime. Perhaps more importantly is that the facts seem to indicate, and the LAC appears to have accepted, that the work on Sunday was overtime work and what the employees had embarked upon was in effect an overtime ban in support of a demand they were making that the employer increase the fee they would be paid. If this is indeed the case the refusal to work overtime would have constituted a strike by virtue of the last sentence of the definition of a strike. This specifically states that work includes overtime work whether this overtime work is voluntary or compulsory. The question whether the term work only refers to work that an employee is contractually required to do also arose in the recent decision in Mndebele & others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant) (Unreported JA 57/12 14/6/2016). The employees in this case had been dismissed for participating in an unprotected strike. The Labour Court held that their dismissal had been fair. They had appealed to Page 121
the LAC but failed to file the record of appeal timeously in fact they were three years late. They then applied to the LAC for condonation for the late filing of the record. In deciding whether condonation should be granted the LAC considered the merits of the case the employees sought to bring on appeal. It considered the correctness of various facets of the Labour Court decision, including the question whether a fair ultimatum had been given, whether the employees had been afforded fair hearings and whether dismissal had been the appropriate sanction. Of interest for this contribution, however, is the question whether the employees action fell within the definition of a strike. The facts of relevance to this matter were as follows The employees were all employed by Xstrata in various positions in its smeltering plant. Due to a slump in the steel price Xstrata shut down all of its six furnaces and ceased all manufacturing activities at its Rustenburg plant for the period 11 December 2008 to 17 January 2009. The employees were required to take their annual leave during this period. On 18 January 2009, Xstrata re-opened the plant but did not resume manufacturing activities. The employees were not required to perform their normal duties but were required to attend training sessions. During the course of February 2009 various grievances were raised by employees in the production department. At a meeting convened to deal with these grievances most of them were resolved. The exception was a grievance relating to the pay that certain employees received. It was agreed that Xstrata would be provided with the names and details of these employees so that it could deal with the issue. These details were not provided prior to the strike taking place. During the same period the employer also launched a national wellness campaign at all its sites on different dates. All the employees at the Rustenburg plant were informed in advance to attend the compulsory wellness launch scheduled for 3 March 2009. They refused to attend the launch until such time as the pay issues were resolved. They were then given a further opportunity to attend another scheduled launch. They also refused to attend this launch. Xstrata took the view that this refusal constituted an unprotected strike and the employees were eventually dismissed. One of the arguments made by the employees was that they had not been on strike because they had not been contractually obliged to attend the wellness launch. The Labour Court and the LAC rejected this argument. The LAC did so in the following terms - [20] The appellants argued that in any event the court a quo erred in concluding that their refusal to attend the wellness campaign amounted to a refusal to work. They submitted that the court a quo failed to appreciate that attending the wellness campaign was not part of their contractual duties. Their submission is without merit. There is no requirement in law that all the duties of an employee must be expressly set out in his or her contract of employment. A number of implied obligations are imposed on employees in terms of the common law, including the employee's obligation to obey lawful and reasonable instructions of the employer; to serve the employer s interests; to act in good faith; Page 122
and to be subordinate to the employer. Employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work. It is only changes that are so dramatic as to amount to the employee having to do an entirely different job which give rise to a right to refuse to do the job in the required manner. The appellants refusal to work was consequently in breach of their common law obligations. The court a quo thus correctly found that the refusal by the appellants to attend the launch constituted a refusal to work and that their conduct fell squarely within the meaning of that term as used in the definition of a strike in section 213 of the LRA. (Footnotes omitted) Both these decisions accept the view that the term work in the definition of a strike should be interpreted to refer only to work that an employee is contractually obliged to perform. This means that a concerted refusal to do work that employees would normally do, but where they have no contractual obligation to do so, will not constitute a strike. Looked at from another perspective this approach can be challenged from a policy perspective. If employees are refusing to do work that they are not contractually required to do with the purpose of compelling an employer to comply with their demands, this is just as much an exercise in the use of economic power as a refusal to do their contractually required duties. If this is the case why should this type of activity not be regarded as a strike? The legislature recognised this in the case of overtime bans by specifically providing that they would constitute a strike even in the situation where overtime work was voluntary; but it did not deem it necessary to deal with other concerted refusals to perform duties not contractually required. PAK le Roux Challenging the extension of Bargaining Council agreements The Free Market Foundation vs Minister of Labour T he recent decision of the High Court in Free Market Foundation v Minister of Labour & others (Unreported 13762/13 4/5/2013) (the FMF decision ), in which the Free Market Foundation sought to challenge the constitutionality of section 32 of the Labour Relations Act, 66 of 1995 (LRA), has received much publicity. It is an extremely technical decision dealing with concepts of unfamiliar to most industrial relations practitioners. What follows is an attempt to summarise the most important aspects of the decision. Background Two of the primary objects of the LRA, as set out in section 1 thereof, are to promote collective bargaining at sectoral level and to promote the effective resolution of disputes. There can be little doubt that the legislature envisaged that bargaining councils would play a central role in achieving Page 123
these objects. Bargaining councils are established by employers organisations (and sometimes employers) and trade unions active in a specific sector and area agreeing to the establishment of such a council, agreeing to the constitution of the council and then applying for the registration of the council in terms section 29 of the LRA. If the application meets the requirements for registration set in sections 29 and 30 of the LRA the Registrar of Labour Relations must register the bargaining council. On registration the council will acquire jurisdiction over a specific sector of the economy. For our purposes this jurisdiction involves two activities. The first is a dispute resolution function in respect of certain disputes between employers and employees that fall within the economic sector and area for which it has been registered. The most important of these functions is to decide certain types of unfair dismissal disputes and unfair labour practice disputes. The second is a collective bargaining function. The employers organisations and trade unions that are parties to a bargaining council may negotiate and enter into collective agreements regulating matters of mutual interest that will apply throughout the sector and areas in respect of which the council has been registered. It is this collective bargaining function, and in particular the extension of collective agreements that was considered in the FMF decision. Extending collective agreements: Should the employer s organisations and trade unions that are party to a bargaining council decide to enter into a collective bargaining process with the aim of concluding a collective agreement they will do so in terms of a procedure provided for in the council s constitution. Any collective agreement concluded must also comply with the provisions of the council s constitution. This agreement will, in the first place, bind the trade unions and employers organisations that entered into the agreement, as well as their members. At the heart of the controversy dealt with in the FMF decision is the further step that the parties to the collective agreement may take. In terms of section 32 of the LRA they may decide to approach the Minister of Labour and request her to extend the agreement to all employers and employees falling within the sector and area covered by the council. These would be employers and employees who are employers and employees who fall within the sector and area covered by the council but who are members of trade unions and employers organisations that are parties to the council which participated in the negotiating process but refused to be party to the agreement; and employers and employers who fall within the sector and area covered by the council but who are not members of any employers organisation or trade union. The decision to request the Minister to extend the agreement must comply with certain requirements. The first is that the decision must be taken in compliance with the bargaining council s constitution. The second is that the parties must meet the representivity requirements set by section 32(1). This section provides that, in order for the Page 124
decision to be valid, the trade union and employers organisations that entered into the agreement must enjoy a certain prescribed level of representivity within the parties to the council. Faced with such a request the Minister must then take a decision whether or not to extend the collective agreement. Here section 32 envisages two scenarios. The first scenario is found in sections 32(2) and 32(3). The effect of these sections is that the Minister must extend the agreement by publishing a notice to this effect in the Government Gazette, provided that she is satisfied that certain requirements are met. The most important of these requirements are that the parties to the council must meet further specified representivity requirements and that there must be an effective procedure for the granting of exemptions from the agreement, including an appeal to an independent appeal tribunal. The second scenario is found in section 32 (5) and applies where the Minister is not satisfied that the parties to the bargaining council enjoy the degree of representivity required by section 32(3). If this is the case the Minister may still extend the agreement if - the parties to the council are sufficiently representative within the sector and area for which the council is registered; the Minister is satisfied that the failure to extend the agreement may undermine collective bargaining at sectoral level; the Minister has published a notice in the Government Gazette giving notice that an application for an extension has been received and inviting comment as to whether the extension should take place; and the Minister has considered all the comments. The distinction between the use of the word must in a section 32(2) extensions and the use of the word may in a section 32(5) extension was of crucial importance in the reasoning of the Court in the FMF decision. The challenges to extension From a union perspective the extension of a collective agreement concluded in a bargaining council has the advantage that it is able to negotiate a minimum set of terms and conditions of employment for the whole sector and area over which the council has jurisdiction. This is achieved in one set of negotiations without the need to conclude agreements with numerous employers.. From an employer perspective it means that all employers are required to accord the same terms and conditions of employment to their employees and they are not able to undercut each other. It also has the advantage that employees bound by the agreement are unable to embark on a protected strike in respect of the matters regulated in the agreement or in respect of matters covered by a peace clause in the agreement. However, opposition to the extension of bargaining council agreements has emerged in a number of sectors, usually from smaller employers who often feel that these collective agreements do not serve their interests. This has led to the extensions being challenged in the Courts. Most of these challenges have been of a limited nature in the sense that it was argued that the Minister had not been entitled to extend an agreement in terms of section 32(2) because the Page 125
requirements set by section 32(3) had not been met. For example, in Valuline CC & others v Minister of Labour & others (2013) 34 ILJ 1404 (KZP) and National Employers Association of SA & others v Minister of Labour & others (2013) 34 ILJ 1556 (LC) the decision of the Minister to extend the agreement was successfully challenged on the basis that the representivity requirements set by section 32(3) had not been met. In National Employers' Association of SA v Metal & Engineering Industries Bargaining Council & others (2015) 36 ILJ 732 (LC) the employer argued that the decision taken by the bargaining council to request the Minister to extend a collective agreement had not complied with the constitution of the bargaining council and was therefore invalid. In Confederation of Associations in the Private Employment Sector & others v Motor Industry Bargaining Council & others (2015) 36 ILJ 137 (GP) a more far-reaching, but ultimately unsuccessful, challenge was brought namely that section 32 was unconstitutional. The FMF decision In this case the Free Market Foundation sought to challenge the constitutionality of section 32 of the LRA. Its challenge, as initially formulated, was a wide ranging one in which it was argued that section 32 infringed the constitutional rights to equality, freedom of association, administrative justice, dignity and fair labour practices. However, when the matter was argued the Free Market Foundation abandoned these arguments and limited its case to one argument - this was that section 32 violated the principle of legality. The principle of legality is based on section 1(c) of the Constitution. It states that The Republic of South Africa is one, sovereign, democratic state founded on the following values. (c) the Supremacy of the constitution and the rule of law In this sense the principle of legality is an aspect or facet of the rule of law and the courts have held that its precise content must be developed on a case-by-case basis. In this case the Free Market Foundation argued that section 32(2) violated the principle of legality because it permitted the extension of a collective agreement by persons not subject to adequate state supervision. This is because the trigger for the extension of the agreement was a decision taken by the parties to the bargaining council (i.e private actors ) to request the Minister to extend the agreement. If the decision to make such a request complied with the requirements of section 32(1) and the request met the requirements of section 32(3) the Minister was compelled to extend the agreement. The Minister did not have the power to take the public interest into account before publishing a notice extending the agreement. This was a mechanical non-discretionary power. The parties to the bargaining council had been vested with autonomous coercive power. The Court summarised the Free Market Foundation s argument as follows- 34. From this point of departure, the FMF contests the notion that bargaining councils (in its view private actors ) can, without breaching the dictates of the Constitution, be entrusted by law with an autonomous coercive power to impose terms and conditions of employment on others. This, it contends, is what section 32 of the LRA achieves by making it obligatory for the Minister to heed a request by a bar- Page 126
gaining council for the extension to nonparties of collective agreements concluded in the council. It objects especially to the mechanical non-discretionary power conferred upon the Minister in terms of section 32(2) of the LRA, and submits that the tenets of constitutionality require that if terms and conditions of employment are to be imposed, this can only properly be done by an organ of state (the Minister) appropriately charged with a substantive discretion that is to be exercised in the public interest and in accordance with the principles of procedural fairness. Since no provision is made in section 32 for this kind of discretion or adequate due process, section 32, in its view, is unconstitutional for that reason. Later on in the decision the Court summarises the argument in a slightly different manner - sections 32(2) and 32(3) are inconsistent with the rule of law provision (i.e section 1(c)) of the Constitution) because they grant unfettered powers to a bargaining council to, in effect, legislate terms and conditions of employment for an entire sector. The fact that the Minister only has a mechanical discretion means that there is inadequate judicial supervision of the extension of collective agreements in terms of section 32(2). The Courts do not have adequate powers to review and strike down an extension of a collective agreement in terms of section 32(2.) 45. According to the FMF, it is unconstitutional to empower private actors (including bargaining councils) to determine the terms and conditions of employment for an industry or a sector of an industry without the consent of the parties affected by such an extension, unless the determination on the substantive merits of the extension has at least the imprimatur of state approval that would proceed from the exercise of a discretion properly designed to promote and advance the public interest. The grant by the legislature of substantively unconstrained power to determine the working conditions of nonparties, it alleged, infringes both the principle of legality and the right to just administrative action in section 33 of the Constitution by conferring on private actors a power unbounded by state control. The Free Market Foundation therefore sought an order to the effect that the word must in section 32(2) must be replaced with the word may. This, it argued, would give the Courts a greater power to supervise decisions to extend collective agreements. The Courts would be able to assess whether proper consideration was given to the public interest when a decision was taken to extend the collective agreement. An assessment as to the reasonableness of the decision could also be made. The Court would exercise this power in terms of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA). Having summarised the Free Market Foundation s arguments the Court then went on to assess whether the fundamental premise of the Free Market Foundation Foundation s argument, namely that there was inadequate judicial supervision of the decision-making process involved in the extension of a collective agreement - was correct. If this was not the case the Free Market Foundation s challenge could not succeed. The Court then embarked upon a detailed analysis of the three stages of the process that lead to the extension of a collective Page 127
agreement in order to determine whether there was adequate judicial supervision. The primary question to be considered was whether PAJA applied to the decisions taken at each of these three stages. If PAJA applied then the wide grounds for reviewing and setting aside these decisions would be available to an aggrieved party. For PAJA to apply the decisions taken at each of these three stages had to fall within the definition of administrative action found in PAJA. The essential points of the Court s decision can be summarised as follows - The Court first considered the legal nature of the negotiation process and the agreement to conclude a collective agreement. It came to the conclusion that this process and the conclusion of the collective agreement does not constitute administrative action. The Court then considered the more difficult question whether the decision by the bargaining council to request the Minister to extend a collective agreement constituted administrative action. Here the Court was a bit more hesitant in its conclusion. After a detailed analysis of the arguments in this regard it stated that it was inclined to agree that the decision of the bargaining council to request the Minister to extend the agreement constituted administrative action and was reviewable in terms of PAJA. If this were the case the decision of the bargaining council could be reviewed on all the grounds set out in PAJA. But even if this were not the case, the Court argued, the decision could still be challenged on the basis that it violated the principle of legality. This meant that the decision could be challenged on the basis that it was irrational or on the basis that the council had acted arbitrarily, capriciously or with an ulterior purpose in mind. The Court accepted that a review on these grounds constituted a lower standard of scrutiny, but also stated that they could still be far-reaching. The result was that there was adequate judicial supervision of the process within the bargaining council that rescued it from the charge of being inconsistent with the Constitution. The Court then turned to the decision taken at the third stage of the process, namely the decision of the Minister whether or not to extend the agreement. It held that the decision was, at least on a prima facie basis, administrative action and thus subject to review on the grounds provided for in PAJA. But the Court went on to distinguish between the scenario where the Minister sought to extend the agreement in terms of section 32(2) and 32(3) of the LRA and the scenario where the Minister sought to extend the agreement in terms of section 32(5) of the LRA. In the first scenario referred to as the majority situation - a court s power to scrutinise the Minister s decision was more constrained. The Minister s power to extend was mechanical in the sense that she was required to extend the collective agreement if the requirements for the extension set in section 32(3) had been met. The legislature had deliberately elected to limit the Minister s discretion to second guess the decision to extend taken by the parties to a bargaining council. However, the decision would be challengeable if the Minister decided to extend an agreement in circumstances where these requirements had not been met, or if the Minister Page 128
failed to extend the agreement in circumstances where they had been met. In the second scenario, where it was only required that the parties be sufficiently representative i.e. something less than majority support - the Courts power to scrutinise the decision to extend was of a more exacting standard. Here the whole gamut of grounds for review found in PAJA would apply. Even if were to be held that the Minister s decision did not constitute administrative action the Minister s decision would still be subject to review on the ground that it violated the principle of legality i.e. it could be challenged on the basis that it was irrational or on the basis that the Minister had acted arbitrarily, capriciously or with an ulterior purpose in mind. The above meant that the Minister s decision to extend the agreement was subject to sufficient judicial supervision. The Court then turned to what it considered should have been the true or most appropriate issue for determination namely whether the constraints placed on the Court s power to review the Minister s decision to extend an collective agreement in terms of sections 32(2) and 32(3) infringed the constitutional right to fair administrative action and whether this was unconstitutional. The Court found that, to the extent that there was such an infringement, this could be justified on the grounds set out in section 36 of the Constitution. Section 32(2) reflected a policy of majoritarianism which enhanced certainty and predictability in the outcomes of collective bargaining at sectoral level and incentivised collective bargaining at that level. Although there may be various objections to such a policy, the Courts were required to defer to policy decisions taken by Parliament when enacting legislation. The possible detrimental effects of the limitation of the right to fair administrative action were also ameliorated by two of the requirements set by section 32(3), namely that there had to be a fair, effective and independent exemption process in place to consider applications for exemption from the provisions of the extended collective agreement and that the agreement could not discriminate against non-parties. The Court concluded as follows 118. In conclusion, therefore, the contention of the FMF that the legislative scheme for the extension of bargaining council collective agreements is unconstitutional because of the absence of adequate state and judicial control is wholly wrong. COSATU, NUMSA and the Minister are correct in their submissions that the constraints and judicial supervision provided in the LRA, read with PAJA or the constitutional principle of legality, give adequate expression to the constitutional right to administrative justice and in practice may prove more protective than the remedy sought by the FMF. There is a possibility that bargaining council decisions may be reviewed on PAJA or rationality grounds, but even if they cannot be, the discretionary power of the Minister to extend minority collective agreements certainly is reviewable on PA- JA grounds or for rationality, and the attenuated power to review the extension of majority collective agreements is a reasonable and justifiable limitation upon the rights of administrative justice, by reason of the legitimate and rational basis for the application of the majoritarian principle in collective bargaining, the proportional safeguards afforded by the exemption system, the protection against discrimination Page 129
granted by section 32(3)(g) and the common law. Comment Why the Free Market Foundation abandoned its argument that section 32(2) was unconstitutional on the ground that it infringed various constitutional rights such as freedom of association, the right to equality and the right to fair labour practices, and why it limited itself to the fairly technical argument that the section violated the principle of legality, is unclear. Perhaps the rejection of similar arguments in the decision in Confederation of Associations in the Private Employment Sector & others v Motor Industry Bargaining Council & others (2015) 36 ILJ 137 (GP) played a role. The Court speculated that this change in tack may have been prompted by the desire to avoid a debate as to whether any possible infringement of these constitutional rights could be justified. If this was the case the Free Market Foundation s concerns may have been justified. The last part of the decision finds that any infringement of the constitutional right to fair administrative action that section 32(2) may have brought about could be justified. But the most important aspects of the decisions for industrial relations practitioners can be summarised as follows The decision of a bargaining council to request the Minister of Labour to extend a collective agreement is subject to judicial supervision and control. The extent of this supervision will depend on whether the decision falls within the definition of administrative action in PAJA. If this is the case the decision can be reviewed on the fairly wide grounds found in PA- JA. If not, there are more limited grounds for review based on the principle of legality. The Court did not express a definitive opinion on this issue but appears to have been inclined to accept that the decision did constitute administrative action. The decision of the Minister to extend an agreement was also subject to judicial supervision. Once again, the extent of this supervision would depend on whether the decision constituted administrative action. The Court did not express a definitive opinion in this regard but expressed the prima facie view that it did constitute administrative action. However, even if the decision to extend an agreement in terms of section 32(2) did constitute administrative action, the Court s power to review these decisions was constrained in the sense that it would usually only be reviewable on the ground that one of the jurisdictional requirements set for extension in section 32(3) had not been met. One final point. As was indicated above, one of the jurisdictional requirements set by section 32(3) for the extension of a collective agreement is that the parties to the bargaining council must meet certain representivity requirements. In at least some bargaining councils it may be difficult for the parties to show that they enjoy the required degree of representivity. If this is the case the parties and the Minister will have to rely on section 32(5) to extend the agreement. In this case the grounds for review may well be far wider and thus expose any decision to extend to more substantial challenges. PAK le Roux Page 130