Exercise of organisation right: collective bargaining

Mpho Ngwato | Friday September 17, 2010 00:00

Collective bargaining is a process whereby unions negotiate with employers on issues which affect their members such as terms and conditions of employment, including wages.  Once bargaining has taken place over an issue  and an agreement has been reached, such an agreement is recorded in a document known as a collective agreement.

A collective agreement once negotiated and concluded by the trade unions and the employers, it is legally binding not only to the parties to the agreement but also to more employees who are members of a trade union. 

Furthermore, collective agreement can bind employees who are not members of the trade union where that trade union is a majority trade union. 

The non-members must specifically identified in the agreement and the agreement must expressly bind such employee(s).  This is important because a collective agreement can modify any contract of employment between an employer/employee where both are bind by the collective agreement.

Collective agreements must contain dispute resolution procedures.  This will provide for the processing of disputes and the interpretation or application of the agreement.

 The dispute resolution procedure must include a conciliation stage and ultimately provide for resolution by way of arbitration.  Disputes about the interpretation or application or settlement agreements may also be referred to the Commissioner or Bargaining Council for conciliation and arbitration.

Registration of bargaining councilRegistered trade unions and employer's organisations may form bargaining councils in their respective industries or sectors by adopting a constitution that provide certain requirements, amongst others, the manner in which decisions are to be made, the procedure to be followed if a dispute arises between the parties to the bargaining council.The foregoing are the powers and functions of bargaining councils:

*Conclude collective agreements*Enforce collective agreements*Prevent and resolve labour disputes*Perform certain dispute resolution functions*Promote and establish trading and education schemes*Establish and administer a fund for dispute resolutions*Establish and administer pension, provident, medical aid, sick pay, holiday, unemployment  and training schemes*Develop proposals regarding the sector or industry*Determine by collective agreement matterswhich may not be in dispute for the purposes of a strike or a lock-out; and*Provide industrial support services within the sector.

A collective agreement reached at a bargaining council may be extended to non-parties to the council on condition that the union holds a majority representation.

The employer has a right to form an employer's organisation and to bargain collectively with unions. 

Where unions seek to exercise organisational rights, the employer may demand that those rights be exercised in a manner which does not unreasonably interfere with the running of the business.   If no agreement can be reached with the unions, the courts or arbitrator can be called to intervene.

Where an employer negotiates an agreement or terms and conditions of employment with a majority union, it can agree with that union to extend the agreement to apply to non-union employees.  Any information supplied by the employer in relation to its business has to be treated with confidentiality.

While employees have the right to strike over certain disputes, employers are entitled to have procedures laid by the law complied with before they have a recognised strike and before employees enjoy protection against dismissal. 

This means that employees cannot strike until the dispute has been referred for conciliation and a required time has expired.  Even then the employer has a right to at least 48hrs notice of commencement of the strike.   Employers also have the recourse to lock-out in furtherance of their demands; provided legislated procedures are complied with.

Where a dispute can be decided by the Industrial Court, the employer can interdict attempts to strike over that issue.  The employer can also interdict a strike where correct procedurers have not been followed by employees. 

This involves approaching the Industrial Court for an order stating that employees may not strike either at all or until the procedures have been followed.

While employees are entitled to picket in certain circumstances the employer is entitled not to have their business interfered with or obstructed by picketing employees.  Picketing rules are not prescribed by the Act.  An arbitrator can be requested to assist the parties with formulating picketing rules.

At any stage during the negotiations any bargaining council may change its constitution or the name of council.  Such a process will be governed by the procedure laid down by the parties to the constitution.

Once a decision to change or amend a term in the constitution, the council must sent to the Registrar a copy of the resolution and a certificate signed by the secretary stating that the resolution complies with its constitution.  The changed or new constitution takes effect from the date of the Registrars certificate.