Despite the fact that there already exists two Bargaining Councils and a Sectoral Determination, regulating the food, catering, restaurant and fast food industry nationally and provincially, the Minister of Employment & Labour allowed the registration of yet another Bargaining Council in the same or similar industry. On 8 January 2021, she extended the Bargaining Council’s main agreement for the Fast Food, Restaurant, Catering & Allied Trades (BCFFRCAT) to non-parties in the industry.
The effect of these agreements is that the remaining areas in South Africa fall under the scope of the BCFFRCAT. This Council now establishes higher minimum wages and benefits and improved working conditions for employees engaged in the industry for the rest of South Africa similar to those of the Bargaining Council for Restaurant Catering and Allied Trades (BCRCAT), that covers Johannesburg and its surrounding areas and the Bargaining Council for the Food Retail, Restaurant, Catering & Allied Trades (BC FOOD) that covers Pretoria and its surrounding areas. The BCFFRCAT now extends beyond these areas to the following areas:
• The Province of Western Cape;
• The Province of Eastern Cape;
• The Province of Northern Cape;
• The Province of Free State;
• The Province of Kwazulu Natal;
• The Province of North West, excluding the Magisterial Districts of Brits and Rustenburg;
• The Province of Mpumalanga, excluding Magisterial Districts of Witbank; and
• The Limpopo Province, excluding the Magisterial District of Warmbaths and the Magisterial Districts of Heidelberg, Vereeniging, Vanderbijlpark, Oberholzer, Meyerton and Carletonville.
It is important to note that the extension indicates that this agreement’s terms will be binding on all employers and employees in the industry from Monday, the 18th of January 2021.
Of great concern is that the Bargaining Council’s extension places various “extra” and additional obligations on an already crippled industry due to the COVID-19 pandemic.
Together with the continued alcohol ban, the ongoing regulations have caused many employers within the industry to close shops. With that, leaving their previously well establish livelihoods and the livelihoods of their staff in shambles.
The extension of the bargaining council is met with much apprehension and negativity exacerbated by the effect of the COVID -19 pandemic. This, in turn, will most likely lead to non-compliance and civil disobedience to an unsustainable industry model.
The extension will also affect the employers’ monthly expenses and the monthly income of employees in the industry. Unfortunately, the motive of both unions and employers organisations who are parties to this Council is unclear. One can only hope that it is noble and to the benefit of the crippled industry.
The crippling industry had to fight for survival, and which begs the question where the consideration in the extension of the BCFFRCAT Main Agreement to non-parties was? This especially as this main agreement merely sets out more obligations, with no service delivery mechanism for employers of any kind, in a time where the industry needs relaxation of legislation.
Nevertheless, the extension of this agreement to non-parties is reality. It is now expected to form part of the already surreal new normal until the 31st of August 2026, if left unchallenged. As any seasoned restaurant owner knows, the failure of a dish does not signal the end of service, we will need to adapt, review and if need be, go back to the kitchen.
We advise our affected clients that this extended main agreement of the BCFFRCAT is indeed promulgated legislation to be complied with. For our affected clients, we encourage you to contact your nearest SEESA office for advice herein. For non-clients reading this article, we would invite you to contact our offices.
The following are important sections to note in the BCFFRCAT Main Agreement:
Section 2(A) – Prohibition of further negotiation
Section 3 – Industrial Action
Section 5 – Wages & Exemption
Section 19 – Registration of Employers and Employees
Section 20 – Payment of Contributions to Benefit Funds
Section 21 – Income & Expenses of the Council
Section 21A – Default Payments
Section 21B – Funeral Benefits
Section 21C – Provident Fund
Section 28 – Dispute Resolution Functions of the Council
Section 29 – EXEMPTIONS
It is essential to note that following the Gazette, the terms of the BCFFRCAT Main Agreement will be binding on all employers and employees in the industry from today, the 18th of January 2021, the date of publication of this article. Failure to comply will in all likelihood result in “back pay” if and when a designated agent does his inspection and identifies non-compliance, which will have devastating financial implications on employers.
Thus, we strongly advise that employers in the industry, contact our offices if they need any further information. The exemption process is contained in the BCFFRCAT Main Agreement. It cannot be stressed enough that the mere completion of the exemption application form provided by the Council will not be sufficient to succeed with an exemption application. Proper motivation and supplementary documentation will be required.
Applications for the exemption of specific terms and conditions may be the most effective and legal manner if affected employers cannot afford and comply with this agreement. Please note that it should be avoided as far as possible to apply for an exemption herein retrospectively as such an application’s prospects of success are significantly lower than an application going forward. Therefore, in the event that an affected employer wishes to apply for exemption, this should be done before obligations, among other, wage hikes, benefits and working conditions become due (i.e. provident fund, council levies, funeral fund contributions). Employers will thus need to strike whilst the iron is hot.
Clients should also be aware of various organisations and labour consultants who may make it their business to exploit the panic caused by this situation and attempt to recruit business by making all kinds of promises and creating false expectations. You should rather contact us if you need assistance.
Resources:
• Main Agreement Of The Bargaining Council For The Fast Food Restaurant And Catering Trades.
About The Author:
Otto Bronkhorst is the National Manager for Labour at SEESA. He was admitted as an attorney in September 1991 and has 19 years of experience in Labour Law.