Transnet Bargaining Council Collective Agreement
 With respect to the extension of the collective agreement, it is legitimate to argue that if the Transnet Bargaining Council is a "bargaining council", as provided for in s213 in conjunction with s27 of the LRA, and the collective agreement was concluded within that board, it could only be renewed with respect to s32 of the LRA and not with respect to s23. This argument is supported by the unanimous diktat of this court in a recent decision which was also appealed to the Constitutional Court. Neither the representatives of the parties nor the National Court appear to have been aware of it. At the appeal hearing, lawyers for both sides were alerted to the saying.  The statement of grounds of the Claimant`s appeal, in accordance with her notice of appeal, is brief. It argues, in essence, that the "decision of the Labour Court, that Article 198B, paragraph 198B, para. 3 and 5 LRG are not applicable and those provisions have been set out in so far as Article 198b(2) of the second subparagraph has been held to be inapplicable; and that it also erred in its "related finding" that the collective agreement is binding on the complainant and its members, since it can be extended to the complainant within the meaning of s23 LRA. According to the applicant, it can be effectively extended to non-parties only within the meaning of s32 LRA. The complainant`s argument was therefore very narrow in her compass. The Labour Court stated that the strike was not protected because it was a refusal to bargain and that NUMSA members were bound by a collective agreement that imposed an early strike procedure. On appeal, NUMSA argued that there was no need to obtain an Advisory Award, as its strike would have to convince Transnet to give in to the demands and settle a dispute. It was not a request that Transnet negotiates with.
It also argued that it had complied with Article 64(1) of the Law on Labour Relations and that it was therefore irrelevant that the conditions of a collective agreement were not complied with in respect of a protected strike. " It is apparent from the reading of ss32 and 23, in their good context within the LRA, that the two sections essentially envisage two different types of collective agreements. In s23, collective agreements are envisaged and provided for outside collective agreements, while s32 collective agreements are concluded on a broader basis and in particular within collective councils...  The Transnet Bargaining Council, like all other registered collective agreements, is a creature of the law made up of representatives of the approved trade unions, on the one hand, and Transnet as an employer, on the other. Under the conditions set out in the Employment Relations Act, the function of the Transnet Bargaining Council is primarily to prevent and settle disputes, to conclude collective agreements and, ultimately, to establish and maintain mutually beneficial cooperation between work and management. . . .