3. Please note that the effects of Appendix A, paragraph. B.188.8.131.52 of the new agreement are not very clear. We will have to ask for clarification on how this will be implemented. There are several ways to interpret this paragraph. What happens in a situation where a minority union has entered into a collective agreement that is at odds with a collective agreement renewed under section 23, paragraph 1, point (d)? Du Toit believes that the renewed collective agreement must be implemented as a matter of priority, as it is sanctioned by law (Roof (ed) and al 313). Even if the union had its way and had reached a separate agreement in contradiction with the majority, a good application of the law would impose the will of the majority. This is called employment democracy (Cohen 2210 -2218). It also shows the coherence of the majority character that characterizes the LRA as a whole and the role of Section 23 (1)d) in this regard (Kruger – Tshoose “The impact of the Labour Relations Act on minority trade unions: A South African perspective” 2013 (16) 4 per 288-289). Although the court did not consider these factors in succession, the judgment shows that they were taken into account. The restriction imposed by the provision does not categorically waive the law and prorogation does not prevent the minority from joining or participating in the collective bargaining process (Cheadle “Collective bargaining and the LRA” 2005 (9) 2 Law, Democracy – Development 153).
It simply means that there will be no strike if there is disagreement on the issues governed by collective agreements. This is called the employer-friendly peace clause (Rautenbach “The constitutionality of legal authorization to enter into collective agreements that require non-parties not to strike” 2017 (4) TSAR 863). In this particular case, Pienaar and Badenhorst provide no less restrictive means to achieve the objectives of orderly collective bargaining (Pienaar – Badenhorst “Minority unions are linked to protracted collective agreements” Employment Alert May 2015 available under www.cliffedekker hofmeyr.com 4> hofmeyr alert 2015/export/sites/cdh/en/news/publications/2015/employment/downloads/Employment-Alert-18-May-2015.pdf (accessed 2018-06-01). Rautenbach argues that the addition of an administrative authorization requirement by an executive or an governing body similar to the section 32 procedure would be a less intrusive possibility of restricting that right (Rautenbach 864-865). This author argues that administrative control, even if the scope is very limited, serves as a procedural guarantee, since the exercise of such discretion must be consistent with the rules of admistrative law and do not infringe the right to fair administrative measures (ibid.). The Tribunal had the opportunity to justify why the legislative policy of majority law could not be subject to judicial review, as it was now part of the legislation and clearly limited rights. The court should have looked at this rather than merely mentioning that the political decision justified the limitation of the right to strike. The countries of the Organisation for Economic Co-operation and Development (OECD) (OECD is composed of Australia, Austria, Belgium, Canada, Denmark, Finland, France and Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States) have two legal mechanisms in which they extend collective agreements to non-parties (collective bargaining: levels and coverage in OECD employment prospects (1994) 178-179).