Labour Relations Act, 1995 (Act No. 66 of 1995)Codes of Good PracticeCollective Bargaining, Industrial Action and PicketingPart B : Collective Bargaining4. Collective bargaining and disputes of mutual interest |
| (1) | Collective bargaining is a voluntary process in which organised labour in the form of trade unions and employers or employers' organisations negotiate collective agreements with each other to determine wages, terms and conditions of employment or other matters of mutual interest. The collective bargaining process may be established institutionally, by agreement or in practice. |
| (2) | The Act provides an institutional form for sectoral bargaining in the form of bargaining councils by providing machinery for the voluntary establishment of a bargaining council by trade unions and employer organisations in a sector and their registration as such by the Registrar of Labour Relations if their constitution provides for the scope, membership, governance, the negotiation of collective agreements and dispute procedures in accordance with the Act. |
| (3) | The Act provides for collective bargaining by agreement in a number of ways: |
| (a) | It specifically empowers bargaining councils to determine by way of a collective agreement what matters for collective bargaining may be devolved to the level of the workplace. |
| (b) | It permits multi-employer bargaining arrangements and provides for the enforceability of collective agreements entered into in such arrangements. |
| (c) | It permits collective bargaining at the level of the workplace and the enforceability of collective agreements at this level. The typical form is the recognition agreement which includes a negotiation and dispute procedure to regulate the collective bargaining relationship between the employer and the trade union or unions that may affect one or more workplaces of the employer. |
| (d) | In circumstances where there is no bargaining council or agreement to bargain, a group of workers or a trade union may bargain collectively as a matter of practice by making a demand on an employer under threat of a strike. Similarly, an employer or employers' organisation may make demands and threaten to unilaterally Introduce them under a threat of a lockout. In each case, before any industrial action may be engaged in, the dispute must be referred for conciliation to the Commission for Conciliation Mediation and Arbitration (the CCMA) or to a bargaining council with jurisdiction. The conciliation of such a dispute is in effect a facilitated exercise in collective bargaining, the object of which, is a settlement agreement (in the case of demands made by or against a group of workers) or a collective agreement (in the case of demands made by or against a trade union). |
| (4) | There is no constitutional or statutory duty to bargain. Collective bargaining under the Act is voluntary and employers (other than the State) and trade unions are permitted to determine their collective bargaining relationships in the institutional form of bargaining councils at sectoral level (the form promoted by the Act) or by way of a recognition agreement at multi-employer or workplace level. However, once having established a collective bargaining relationship in the form of a bargaining council constitution or a recognition agreement. the parties have thus by agreement implicitly committed themselves to a duty to bargain and the duty to bargain under such circumstances does not arise statutorily but contractually. |
| (5) | In so far as the State is concerned, although the establishment of a structure of collective bargaining is statutorily determined, its constitution is determined by the State as employer and the trade unions. The duty to bargain, too, does not arise statutorily but contractually from the agreed bargaining council constitution. |