Collective bargaining South African labour law

1 collective bargaining

1.1 bargaining fora
1.2 duty bargain
1.3 bargaining agents
1.4 levels of bargaining
1.5 disputes requiring bargaining council resolve
1.6 collective agreements

1.6.1 requirements

1.6.1.1 in writing
1.6.1.2 registration
1.6.1.3 content


1.6.2 binding effect
1.6.3 contracts of employment
1.6.4 termination

collective bargaining

the legal rules relating freedom of association , organisational rights aimed @ making collective bargaining possible. there specific rules govern collective bargaining process , result thereof: collective agreements.

neither constitution nor lra defines collective bargaining. because law not impose legal duty bargain on employers , trade unions.

collective bargaining must understood process. process of collective bargaining entails negotiations between 2 parties:

broadly, then, collective-bargaining process may defined process whereby employers (or employers’ organisations) bargain employee representatives (trade unions) terms , conditions of employment, , other matters of mutual interest.

unlike mere consultation, collective bargaining presumes willingness each party, not listen , consider representations of other party, abandon own fixed positions possible, in order find common ground.

bargaining occurs, inter alia,

where 2 opposing parties exchange demands , make counter-demands;
where propose (and accept or reject) compromises;
where negotiate; and
where 1 party places pressure on other give in demands.

bargaining, then, dynamic process.

collective bargaining concerned disputes of interest, not exclusion of disputes of right.

the word collective refers fact employees join in trade unions increase power in bargaining employers on wages, working conditions , other matters of mutual interest between them. important note that, on workers side, trade unions may engage in collective bargaining. although single employer can engage in collective bargaining, individual employee cannot, definition, engage in collective bargaining.

if successful, collective bargaining leads settlement , conclusion of collective agreement. if fails, there several options available employer or union, including

resort lock-out or strike; and
submitting dispute mediation.

when trade union enters collective-bargaining process, have 1 of 3 objectives in mind:

bargaining fora

the lra makes provision establishment of 2 institutions within collective bargaining may take place:

the establishment, composition , function of bargaining councils , statutory councils regulated in detail lra. employers , trade unions remain free, however, agree own collective-bargaining fora , procedures. act, however, not regulate non-statutory collective bargaining in detail; left employer , trade union reach agreement on issues such as

where collective bargaining take place (at industry, enterprise or plant level);
when collective bargaining take place;
on topics collective-bargaining occur;
who represent parties during collective-bargaining process;
which employees covered collective-bargaining process; and
the precise procedures followed.

the facet of type of bargaining regulated lra legal effect , binding nature of collective agreements entered into.

duty bargain

it argued constitutional right bargain collectively (s 23(5)) includes both legally enforceable right bargain collectively, corresponding duty bargain collectively on other party relationship. since lra not create duty bargain, may give rise argument act not go far enough in protecting , giving content constitutional right. debate may have solved courts in future. now, however, there no general duty bargain on employers , trade unions in terms of lra. employer may refuse engage trade union; in turn, trade union may take strike action.

the question of whether constitutional right bargain collectively includes duty on other party has arisen in connection 1 group of persons not covered act: members of south african national defence force (sandf). in 3 separate disputes, high court had consider whether south african national defense force union (sandu) may rely on provisions of section 23 in order obtain court order require state bargain collectively it. these decisions, , arguments, contradictory.

the sca, on appeal, held constitutional provision not impose judicially enforceable duty bargain on employers or employees. on further appeal, however, constitutional court left question open. did point out, however, contrary approach create difficulties. came close, then, agreeing sca no duty bargain collectively exists in south african labour law.

although lra not compel parties bargain each other, encourages collective bargaining through granting of organisational rights, right establish bargaining institutions , closed-shop , agency-shop agreements. should employer refuse bargain, act allows strike action employees convince employer bargain. refusal bargain includes:

the employer’s refusal recognise trade union bargaining agent;
the employer’s refusal establish bargaining council;
the employer’s withdrawal of recognition of collective bargaining agent;
the employer’s resignation party bargaining council; and
the employer disputing appropriate bargaining units, levels , topics.

disputes regarding refusal bargain must first referred commission conciliation, mediation , arbitration advisory award. advisory award provides guidance only; not binding on parties.

bargaining agents

collective bargaining performed bargaining agents, namely trade unions , employers’ organisations. lra sets requirements unions , organisations relating registration. trade union defined association of employees principal purpose regulate relations between employers or employers’ organisations , employees. employees may members of trade union. job seekers , ex-employees may not members of trade union.

to qualify trade union, association of employees need not registered. registration beneficial, however, since registered trade union entitled rights, such right to

conclude collective agreement enforceable under lra;
acquire organisational rights;
be member of bargaining council, statutory council , workplace forum; and
conclude closed-shop , agency-shop agreements.

the powers , functions of bargaining council outlined in section 28 of lra. bargaining council has 3 main functions:

levels of bargaining

collective bargaining can take place @ plant level, sector level or industry level. lra encourages collective bargaining @ sector or industry level. provision made establishment of bargaining councils particular sector. @ level bargaining take place in bargaining councils. moreover, bargaining councils may established in private public sector. private sector economic sector in state not employer; in public sector, state employer.

disputes requiring bargaining council resolve

disputes freedom of association: bargaining council can conciliate these disputes, failing should referred labour court adjudication.
disputes of interest in essential service: bargaining council can conciliate , arbitrate these disputes.
disputes severance pay: bargaining council can conciliate , arbitrate these disputes.
disputes unfair labour practices: bargaining council can conciliate unfair-labour-practice disputes provided not relate discrimination. discrimination disputes must referred commission conciliation, mediation , arbitration conciliation, failing must go labour court adjudication.
disputes may lead strike or lock-out: bargaining council can conciliate these disputes.
dismissal disputes, if reason dismissal based on operational requirements, participating in unprotected strike, reasons connected closed-shop agreement, or automatically unfair: bargaining council can conciliate these

disputes.

disputes based on misconduct

and incapacity: bargaining council may conciliate , arbitrate these disputes way of con-arb procedure.

collective agreements

the main goal of collective bargaining between employer , trade union reach consensus matters , formalise relationship means of collective agreement. collective agreement regulates rights , duties of parties, terms , conditions of employment of workers.

in terms of section 213 of lra, collective agreement written agreement concerning terms , conditions of employment or other matter of mutual interest concluded 1 or more registered trade unions, on 1 hand and, on other

one or more employees;
one or more registered employers’ organisations; or
one or more employers , 1 or more registered employers’ organisations.

the parties, therefore, are

a registered trade union; and
the employer/s and/or registered employers organisation/s.

requirements

there 3 important elements distinguish collective agreement other agreement between employees , employers:

in writing

a collective agreement need not signed parties agreement valid. required agreement in writing. not necessary collective agreement contained in single document. would, however, advisable parties agreement sign single written document, assist in eliminating later disputes whether or not agreement entered into, , content of agreement was.

registration

only registered unions may parties collective agreements, union being unregistered not mean union may not conclude agreement employer; means agreement fall outside scope of lra, , not enforceable in terms of lra. single employer may conclude collective agreement; single employee cannot. reason inequality of power between employer , single employee, , single employee not collective .

content

the definition states topics must regulated collective agreement. must deal terms , conditions of employment, , other matters of mutual interest between parties. terms , conditions of employment relate substantive provisions of employment relationship, working hours, remuneration , leave. collective agreements can regulate granting of organisational rights registered unions.

binding effect

a distinction must drawn between parties agreement , members of parties agreement. section 23 of lra provides following entities or persons bound collective agreement:

the parties agreement;
each party agreement , members of every other party agreement, in far provisions applicable them;
members of registered trade union , employers members of registered employers’ organisation party collective agreement if regulates

terms , conditions of employment; or
the conduct of employers in relation employees or conduct of employees in relation employer.


employees not members of registered trade union or unions party agreement, if

the employees identified in agreement;
the agreement expressly binds employees; and
the trade union or unions represent majority of employees employed in workplace.

a collective agreement binds whole period of collective agreement every person bond in terms of section (1)(c) member @ time became binding, or becomes member after became binding, whether or not person continues member of registered trade union or registered employers’ organisation duration of collective agreement.

contracts of employment

where applicable, collective agreement varies contract of employment between employee , employer if both bound collective agreement.

termination

unless collective agreement provides otherwise, party collective agreement concluded indefinite period may terminate agreement giving reasonable notice in writing other parties.