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COLLECTIVE BARGAINING AND THE BARGAINING COUNCILS
Recent amendments have been passed changing some of key aspects of
Labour Legislation in South Africa.
This legislation is the output of discussions that have taken place with
the major stakeholders and attempts to address the various constituent
needs in a practical and balanced way.
Collective Bargaining and Bargaining Councils:
Some of the amendments that affect Collective Bargaining and the
Bargaining Councils are as follow:-
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Bargaining Council agreements may now be enforced in a similar way
to BCEA enforcement (Section 33A).
Any unresolved dispute about compliance with any provision of a
collective agreement can be referred to arbitration by an arbitrator
appointed by the council. The arbitrator has all of the powers
of a Commissioner of the CCMA, and may also determine any dispute
about the application or interpredtation of a collective agreement.
The arbitrator may make any appropriate award, including an order
that any person pay an amount owing in terms of a collective
agreement or may impose a fine for a failure to comply with an
agreement. The arbitrator's award is subject to review by the
Labour Court.
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Simultaneously with the amendments a notice stipulating fines that
CCMA arbitrators may levy is being published in the regulations.
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Bargaining Councils are required to advise the registrar of Labour
Relations annually on the involvement of small businesses in the
Council (Section 54).
Bargaining councils are required to provide a report to the Registrar
on the extent to which they cover small employers, and the extent to
which they take the interests of small and medium enterprises into
account.
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The registrar of Labour Relations is given increased powers to
oversee the conduct of a Council's affairs (Section 54), including
ascertaining representivity.
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The registrar of Labour Relations now has greater authority to
register, or refuse, an applicant as a Trade Union or Employers'
Organization. This is to assist and prevent unscrupulous
labour organisations abusing workers and smaller employers.
The registrar must be satisfied that they are a genuine
organization.
Collective Agreements:
Some of the amendments that affect Collective Agreements are as follow:-
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notice to terminate a collective agreement that is concluded for an
indefinite period must be given in writing;
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parties to a collective agreement may now terminate the agreement where
the agreement itself does not provide for cancellation on notice;
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a collective agreement may be terminated on
"reasonable notice".
Bargaining Councils:
Some of the amendments that affect Bargaining Councils are as follow:-
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the powers and functions of bargaining councils have been extended
to include the provision of "industrial support services" within the
sectors over which the councils have jurisdiction,
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the powers and functions of bargaining councils have been extended
to include workers in the informal sector and home workers.
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the Registrar is required to send NEDLAC a copy of any notice of
an application for the registration of a bargaining council. This
requirement does not apply to bargaining councils in the public service.
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the Minister of Labour is now permitted to extend bargaining council
agreements to employers and employees whose representatives were not
party to the council or the agreements that were reached, provided that
certain conditions are met.
-
the Minister of Labour is permitted to extend an agreement in
circumstances where the parties to the council are sufficiently
representative within the registered scope of the council, and not only
within the area in respect of which the extension is sought.
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if the parties to a collective agreement that has been extended by the
Minister agree to terminate that agreement, they must notify the
Minister.
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bargaining councils that have a collective agreement that has been
extended by the Minister, are required to inform the Registrar each year
in writing of the number of employees covered by the collective
agreement, the number who are members of the trade unions that are
parties to the agreement and the number employed by members of the
employers' organizations that are party to the agreement. A
determination by the Registrar of the representativeness of a bargaining
council will be sufficient proof of the representativeness of the
council for the year following the determination. This provision does
not apply to bargaining councils in the public sector.
Public Sector Bargaining Councils:
Some of the amendments that affect Public Sector Bargaining Councils are
as follow:-
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the amendments rationalize the process of designation, variation of
scope and amalgamation of public sector bargaining councils.
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the amendments
allow the CCMA to deal with jurisdictional disputes between bargaining
councils in the public sector.
-
the
amendments provide that the public service coordinating bargaining
council may in terms of its constitution and by resolution, designate a
sector of the public service for the establishment of a bargaining
council, and vary the designation of any existing councils.
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the
Public Service Coordinating Bargaining Council (PSCBC) is entitled to
amalgamate or disestablish any existing bargaining councils.
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a bargaining council established for a sector of the public service has
exclusive jurisdiction in respect of matters that are specific to that
sector and in respect of which the State, as employer in that sector,
has the required authority to conclude collective agreements and resolve
labour disputes.
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if a jurisdictional dispute between two or more bargaining councils in
the public service, including the PSCBC, arises, any party to the
dispute may refer that dispute to the CCMA.
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the Registrar may cancel the registration of a bargaining council in the
public service by removing its name from the register of councils if the
Registrar receives a resolution from the PSCBC disestablishing a
bargaining council.
Information
provided on this page is based on the document “Labour Law
Amendments 2002” found on the Department of Labour’s website.
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