NUMSA and UASA have jointly entered into a collective agreement with SAA within the NBF. This collective agreement was a collective agreement within the meaning of Labour Relations Act 66 of 1995 (“LRA”). The collective agreement was extended to other unions, including SACCA, in section 23, paragraph 1, point d), of the LRA. The collective agreement applied from April 1, 2016 to March 31, 2017. The fact that a collective agreement is concluded between a majority union and an employer, but is extended to a minority union, may prevent the minority union from going on strike. The issue of increasing international food premiums subsequently became a point of disagreement between the ASA and the SACCA. On June 10, 2016, SACCA approached the CCMA to determine whether, among other things, the collective agreement had been extended to it and, if so, whether the collective agreement complied with the terms of the labour dispute between the ASA and the SACCA. The CCMA agreed. On September 14, 2016, SACCA referred to the CCMA a refusal of negotiations/disputes over mutual interests. The ASA responded by referring to a dispute over the interpretation and application of the collective agreement on the same day. Disputes have been consolidated.
The consolidated dispute was then resolved on the grounds that the parties would have “objective discussions” on the refusal to increase international food premiums. After discussions with the ASA were fruitless, the SACCA drew the CCMA`s attention to a new dispute over mutual interests regarding the increase in food benefits. The CCMA issued a certificate of non-solution stating the dispute unresolved and stating that the “strike measures were competent”. THE AMSA code of discipline is in the form of a collective agreement and is therefore binding between the parties. However, the disciplinary law did not merely determine whether the disciplinary chair had the authority to make only one recommendation of sanction or whether she had final decision-making authority. In other words, there was no express provision in the disciplinary code for AMSA to “unilaterally review” the Chair`s decision (except in some cases in the appeals process). Indeed, the labour tribunal has distinguished between an employer`s ability to replace a president`s decision to sanction when his or her powers are defined in a collective agreement, circumstances where this is not the case. In this regard, it confirmed that the principles set out in the case law in this area are that in the absence of a collective agreement regulating discipline, an employer may replace the sanction of a disciplinary president, if it is right and after taking the employee to another disciplinary investigation or by inviting the worker to give his opinion. When the agreement is published in the government scoreboard, it becomes legally binding for all employers working in the sector and for workers who fall within the scope of the main agreement.
Hence the next important question. The Labour Tribunal found that it was appropriate to conclude that, when negotiating the disciplinary law, the parties did not intend to give AMSA the power to review or challenge their own disciplinary decision, unless they considered reviewing or challenging their own disciplinary decision, unless that decision was initiated in an appeal proceeding. The Tribunal also found that another conclusion would be a presumption that one of the parties could unilaterally alter the effect of the agreement. According to the labour tribunal`s decision in that case, a disciplinary code in which it is not certain that a disciplinary tribunal chief would have final decision-making power would have no effect, which would prevent an employer from holding what it calls a “second disciplinary hearing” if it is not satisfied with the President`s finding of sanction. However, this option should only be used in exceptional circumstances and should always be used for reasons of fairness. If a disciplinary law is also a collective agreement, the provisions of the collective agreement regulate whether or not the employer can overturn the president`s decision