Collective Agreements

In terms of the Labour Relations Act, 1995, a collective agreement is a written agreement concerning the terms and conditions of employment or any other matters of mutual interest that are concluded by one or more registered trade unions on the one hand and one or more employers and/or one or more registered employers’ organisations on the other.

Collective Agreements

In terms of the Labour Relations Act, 1995, a collective agreement is a written agreement concerning the terms and conditions of employment or any other matters of mutual interest that are concluded by one or more registered trade unions on the one hand and one or more employers and/or one or more registered employers’ organisations on the other.

These agreements are concluded between the members of bargaining councils or statutory councils in the areas and sectors which they cover. They are published in the government gazette.

Collective agreements are binding on the members of the council and may be extended to apply to other employers and employees in the same sector or area of work. Under the old Labour Relations Act of 1956, these were known as industrial council agreements. Employers are required by law to keep a copy of the collective agreements which they are party to available at all times for possible inspection by employees.

Collective agreements are usually concluded about issues such as minimum wages, deductions, hours of work, overtime work, work on Sundays, sick leave, annual leave and notice pay, although they may cover any area of mutual interest to council members. They may even override the right to use of strikes or lock-out in disputes. Any agreement, other than agency shop agreements or closed shop agreements, must include procedures for resolving disputes about the interpretation and application of the agreement. (See also disputes at work.)

Application and extension of agreements

A collective agreement is binding on every person which falls within its scope for the duration of the agreement, whether or not that person remains a member of the union or employers’ organisation which concluded the agreement. No contract of employment may disregard or waive a collective agreement, whether it was concluded before or after the agreement was concluded.

Where applicable, a collective agreement varies contracts of employment between employers and employees who are both bound by the agreement. In addition, a bargaining council may ask the Minister of Labour to extend a collective agreement to all parties which fall within its registered scope, whether they are members or not. This will be granted for a specified period of time if the minister is satisfied that:

  • The majority of employees within the registered scope of the bargaining council are members of the unions represented on the council;
  • The employers or employers’ organisations in the council employ the majority of employees within the registered scope of the council;
  • An independent body to consider and grant exemptions to non-parties to the agreement will be established by the collective agreement and its criteria are fair;
  • Not extending the agreement will undermine collective bargaining at the sectoral level; and
  • Non-parties to the agreement will not be discriminated against.

Case History – The broken agreement

A stevedoring company had a collective agreement in place with the union which provided for the standard lifo (last in, first out) selection criterion in the event of retrenchments. When the time came, the company announced that, because stevedoring requires fit, agile employees, it would use age as a criterion for retrenchment selection instead.

  • The Industrial Court found that parties are normally bound by procedural agreements but if the agreements are prejudicial to one party, the court will enquire whether good reasons exist for departing from the criteria, whether adequate consultations are held about the departure, and whether the new criterion is fair.

The court accepted that there were good reasons for not applying lifo in the situation and that ‘fitness and agility’ were fair criteria in the circumstances. However, it reinstated those who had been retrenched because they had been selected on the basis of age, rather than on the basis of fitness and agility.

(Transport & General Workers’ Union & others v SA Stevedores Ltd, 1993)

Enforcement of agreements

A bargaining council may ask the minister to appoint an agent to help it enforce any collective agreement. The agent has wide powers including being able to:

  • Subpoena witnesses to give evidence;
  • Subpoena a person in control of a relevant book, document or object to produce the item and to answer questions;
  • Enter and inspect premises at any reasonable time after having obtained labour courtI authorisation to do so;
  • Examine, demand to see and seize any relevant book, document or object on the premises after having obtained Labour Court authorisation to do so;
  • Retain any relevant book, document or object for a reasonable period of time.

A receipt must be issued for any item which is seized and a subpoena issued by an agent must be signed by the director or acting director of the commission for conciliation, mediation and arbitration.

Questions put to a person about a book, document or object are subject to the rules of a court of law. Any behaviour in these proceedings which would constitute contempt of court if it took place in a court can be referred to the Labour Court for an appropriate order.

Source: Reader’s Digest’s You and Your Rights

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