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The enforcibility of collective agreements by Bargaining Councils

The enforcibility of collective agreements by Bargaining Councils

The conclusion of a collective agreement is not uncommon in our South African labour law environment.

What are collective agreements by Bargaining Councils?

Registered employer organisations and trade unions may form Bargaining Councils. The purpose is to provide a forum for collective bargaining by which settlement can be reached on matters of joint interest through negotiation.

A Bargaining Council collective agreement is a written agreement concerning terms and conditions of employment, or any matter of mutual interest, concluded by the employer organisations and the trade union parties within a specific industry.

Who are bound by collective agreements?

Collective agreements normally only bind the parties to the agreement and their members. Nevertheless, the Labour Relations Act (LRA) 66 of 1995 provides for the possibility to extend the binding force of a collective agreement concluded in a Bargaining Council to non-parties that fall within its registered scope.

It is left to the parties to decide when the collective agreement will become binding and enforceable between them. However, parties concluding a collective agreement in a Bargaining Council frequently provide for a suspensive condition or for the terms and conditions of their agreement to become binding between the parties only from a date specified by the Minister of Labour. The inclusion of such a provision is practical, as it prevents the situation where the agreement would be enforceable against the parties to the collective agreement but not against non-parties pending the possible extension of the agreement by the Minister of Labour.

Extending collective agreements

The Minister of Labour must be satisfied that failure to extend the Bargaining Council collective agreement may undermine collective bargaining at Sectoral level. The Minister of Labour must grant the extension of a Bargaining Council collective agreement to employers and employees who were not party to the collective agreement, provided that certain criteria have been complied with as provided for in the LRA. In such cases, the Minister of Labour must publish a notice in the Government Gazette within 60 days of the request for extension declaring that, from a specified date and for a specified period, the collective agreement will be binding to non-parties.

A collective agreement is not enforceable by a Bargaining Council until it has been promulgated and extended, where applicable, by the Minister of Labour.

ABOUT THE AUTHOR

Marie Ellis obtained her BJuris degree from the University of Port Elizabeth in 1999, her LLB degree from the University of South Africa in 2008 and completed the Programme in Labour Law Practice at the Nelson Mandela Metropolitan University in 2015. She joined SEESA Labour as a legal assistant in October 2016.

 

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