<--- Back to contents

Chapter 8 - Labour Law

Collective agreements

Collective bargaining is workers and employer/s negotiating with each other about terms and conditions of employment, to reach a collective agreement. The collective agreement may have different conditions to those in the Basic Conditions of Employment Act (BCEA).

A collective agreement overrides any individual contract of employment.

Collective agreements can be of two kinds:

• The Basic Conditions of Employment Act (BCEA) allows variation of certain specified conditions in the BCEA through collective bargaining between a group of workers represented by a registered union working of the same employer (usually at one workplace) and the employer.
• The Labour Relations Act allows centralised collective bargaining. Groups of workers in the same industry or sector bargain with the employers in that industry or sector. The Act also allows for a Collective Agreement to be entered within an organisation between a trade union and the employer.

Workplace-based collective agreements

A group of workers working for the same employer (usually at one workplace) and the employer negotiate and make a collective agreement. The collective agreement covers terms and conditions of employment for that category of workers working for that employer.

The BCEA says what things workers and employers are free to make collective agreements about. For example, workers and their employer cannot collectively agree that child labour will be allowed.

Certain core rights cannot be altered. These include normal working hours (45 hours) maternity leave, night work provisions etc.

A workplace-based agreement may have different conditions to those in the BCEA, as long as they are more favourable to the worker than the BCEA. The BCEA sets out the minimum conditions of employment. Any agreement must at least comply with all the provisions of the BCEA. If an agreement breaks any part of the BCEA, it is not enforcable and the BCEA conditions override the conditions in the agreement.

If the collective agreement does not cover certain terms and conditions of employment, then those terms and conditions in the BCEA apply to the workers.

Notice to terminate a collective agreement must be given in writing.

A collective agreement can be made mandatory for all employees in a bargaining unit (in other words, non-union members) if the union is a majority union and the agreement specifies those employees to be covered by such agreement.

Enforcement of a workplace-based collective agreement

If you are helping a worker with a problem who is covered by a collective agreement under the BCEA, then you refer the problem to the CCMA or Bargaining council if you have failed to solve the problem with the employer on your own. If there is disagreement over an interpretation of a collective agreement or how it is being applied, then this can also be referred to the CCMA or appropriate bargaining council for conciliation and final arbitration.

Bargaining Council Agreements

A Bargaining Council Agreement is the outcome of centralised collective bargaining under the Labour Relations Act.

A Bargaining Council Agreement sets out terms and conditions of employment for a particular industry in a particular area. The Agreement covers things like minimum wages (the lowest wages that an employer can pay a worker) and conditions of work (notice, annual leave, sick leave, and so on), in a particular industry in a particular area.

The conditions in the collective agreement may be better for workers than those in the BCEA. OR workers may agree to conditions less favourable than the BCEA provided they do not affect certain core rights (see section 49 of the BCEA).

See General summary of a wage regulating measure

How are Bargaining Council Agreements made?

Bargaining Councils are permanent structures. They are made up of representatives of employers on the one hand and of trade unions on the other. The Labour Relations Act sets out conditions for setting up Bargaining Councils. (Note: existing Industrial Councils are changed into Bargaining Councils by the LRA.)

The two sides (also called parties) to a Bargaining Council negotiate together to make a Bargaining Council Agreement. Bargaining Council Agreements are put in the Government Gazette.

A bargaining council may ask the Minister of Labour in writing to extend a collective agreement to any non-parties to the agreement, who are within the ’scope’ of the council.

If there is no Bargaining Council in a sector, unions or employer organisations can apply to establish a Statutory Council under the Labour Relations Act. The workers' unions must represent 30% or more of workers in the sector, and the employers' organisation must represent 30% or more of employers in the sector. Statutory Councils can negotiate education and training, benefit funds and dispute resolution in the sector. In Statutory Councils, employers are not forced to negotiate over wages and conditions of employment. A Statutory Council may become a Bargaining Council later.

Up to 2002 only one statutory council has been established in South Africa.

Enforcement of a Bargaining Council Agreement

If you are helping a worker with a problem who is covered by a Bargaining Council Agreement, then you refer the problem to the Bargaining Council if you have tried and cannot solve the problem with the employer on your own.

The Bargaining Council’s powers to enforce agreements have now been extended. The council’s agents now have powers of inspection similar to Labour Inspectors in terms of the BCEA. Such agents can provide compliance orders where employers are in breach of the council agreement.

After the Bargaining Council Agreement has been published in the Government Gazette, it is an offence for an employer or worker (in that industry and in that area) not to obey the terms of the agreement. Any problems about any of the working conditions in the Agreement must be referred to the Bargaining Council for investigation.

See PROBLEM 3: Worker is paid below the minimum wage

Settling disputes under a Bargaining Council

It is also the Bargaining Council's job to assist with settling disputes, such as an unfair labour practice or an unfair dismissal.

Disputes must first be referred to the relevant Bargaining Council for conciliation. The Council acts as a mediator to help the two parties negotiate a solution. If the conciliation does not resolve the dispute, either of the parties may refer the matter for arbitration by the Commission for Conciliation, Mediation and Arbitration (CCMA), unless the Bargaining Council has its own accredited arbitrators. Then the Bargaining Council decides what the solution must be and makes a ruling. The Bargaining Council dispute resolution procedure is similar to the CCMA dispute resolution procedure.

Some Bargaining Councils do not have their own dispute resolution procedures in place. They may refer disputes within that industry to the CCMA for mediation and arbitration.

The powers of bargaining council agents have been increased in line with the Department of Labour’s inspector’s jurisdiction.

A bargaining council arbitrator may make an award ordering the employer to pay an amount owing, or impose a fine, or an appropriate award.

See Solving disputes under the LRA