Collective bargaining and role of bargaining councils

To uphold the constitutional rights of trade unions and employers’ organisations to engage in collective bargaining, legislation has been enacted to establish the framework within which this process occurs.

The Labour Relations Act 66 of 1995 (LRA)

The LRA lays the groundwork for collective bargaining by establishing the framework for bargaining councils. According to Section 27 of the Act, registered trade unions and registered employers’ organisations may form a bargaining council for a specific sector and area. Additionally, the Act allows for the state to be a party to a bargaining council.

The primary objective of trade unions and employers’ organisations in forming a bargaining council is to regulate industrial relations matters between employers and employees within their respective sectors and areas.

Purpose of bargaining councils

Case law has affirmed that the primary functions of bargaining councils are to conclude and enforce collective agreements concerning terms and conditions of employment or matters of mutual interest, as well as to prevent and resolve labour disputes within the workplace.

Collective agreements

The outcome of collective bargaining between employers’ organisations and trade unions is the negotiation and conclusion of collective agreements. Collective agreements can be defined as agreements between trade unions and employers’ organisations that regulate matters of mutual interest and conditions of employment.

A collective agreement concluded in a bargaining council binds the parties to the bargaining council who are also parties to the collective agreement. A bargaining council may request, in writing, that the Minister of Employment and Labour extend the collective agreement to non-parties within its registered scope, as identified in the request and subject to certain requirements set out in the Act. Once the Minister extends the agreement to non-parties, any employer not originally party to the agreement will be obligated to comply with its provisions and register with the relevant bargaining council.

Collective agreements are concluded for a specific period, with the validity period clearly stipulated in the agreement. Once this period has expired, the agreement will no longer be binding on the parties unless it has been extended for an additional period or a new collective agreement has been concluded.

Dispute resolution

Another key function and power of a bargaining council is to perform dispute resolution functions, typically provided for by the collective agreement and within their jurisdiction, similar to the Commission for Conciliation, Mediation, and Arbitration (CCMA). Common types of disputes presided over by a bargaining council include unfair labour practice and unfair dismissal disputes.

Monitoring compliance

Bargaining councils also monitor compliance with labour legislation in general, and specifically with the provisions of any collective agreements in force within their respective industry and area.

According to the LRA, the Minister of Employment and Labour, at the request of a bargaining council, may appoint designated agents to promote, monitor, and enforce compliance with any collective agreement. These designated agents are empowered to ensure compliance by publicising the contents of agreements, conducting inspections, investigating complaints, and performing other functions as assigned by the bargaining council.

Bargaining councils play a crucial role in establishing terms and conditions of employment or addressing matters of mutual interest within a specific industry. They also work to prevent and resolve labour disputes within the workplace.

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