Introduction to the Establishment of a Bargaining Council in South Africa
Section 27 of the Labour Relations Act allows for the forming of bargaining councils by employer organisations and trade unions for the purpose of seeking solutions to labour disputes, managing collective agreements, and putting forward labour law and policy recommendations, in addition to establishing relevant schemes.
Council Creation
Registered employer organisations and trade unions can form a bargaining council through the adoption of a constitution and by submitting an application in terms of section 29 with the Registrar of Labour Organisations. The application for registration must be accompanied by the application form and any other information deemed necessary and relevant by the Registrar.
The Role of a Bargaining Council
The role is governed by Section 28 in the Labour Relations Act and entails the creation and enforcement of collective agreements, establishment and management of a dispute resolution found, and the prevention and resolving of labour disputes. It also serves to create and manage funds and schemes, which will benefit its members or relevant parties, and to make proposals regarding the laws affecting the specific sector.
What are the Agreements?
Collective bargaining takes places and the agreement is the outcome of the negotiations. The Council agreement stipulates the minimum wages and aspects such as termination of employment notice period, sick leave and other conditions of employment.
The Bargaining Council consists of representatives from the various parties, including the employer organisations and trade unions. The outcome of the negotiations and bargaining is published in the Government Gazette. If the Council deems it necessary to extend the outcome of the collective bargaining to non-parties, it puts an application in writing to the Minister of Labour to the effect.
Where a sector is without a Bargaining Council, the parties can according to the regulations of the Labour Relations Act, apply for the introduction of a Statutory Council. For this to be approved, the sector-based unions must represent at least 30% of the workers in the particular sector and the employer organisations a minimum of 30% of the sector employers.
Role of the Statutory Council
The Statutory Council can negotiate aspects such as training and education, as well as benefit funds in the sector, in addition to dispute resolutions. Unlike with the Bargaining Council, the employers under the Statutory Council are not under any obligation to negotiate any employment conditions or wages. The Statutory Council can eventually develop into a Bargaining Council.
The Labour Relations Act stipulates compulsory obedience to the terms of the Bargaining Council Agreement for all parties relevant to the Bargaining Council. Disputes or problems regarding work conditions are referred to the Bargaining Council that appoints agents to investigate and provide compliance orders to the employers in breach of the Council Agreement.
How Disputes are Settled
The Bargaining Council plays an integral role in dispute settlements within the specific sector. Disputes can be referred to the Council for appeasement. Conciliators are appointed to help the parties negotiate and reach a compromise or solution. If this process fails then one of the parties can request the Council for arbitration assistance. In this event, the Council will appoint their arbitrators to seek a solution and order compliance.
How We Can Assist
Allardyce & Partners is a boutique law firm focussing on employment and labour law. We offer our services throughout South Africa.
We provide legal guidance, assistance regarding Bargaining Councils, litigation assistance in the Labour Court, appeal assistance and representation in the CCMA. We represent both the employee and employer giving us a distinct competitive edge as we understand how each party will argue and we can thus prepare sufficiently to counter argue.
Our firm has extensive experience in labour and employment law and we have chaired disciplinary enquires, represented employees in disciplinary enquiries and have experience in attending to strikes and picketing. We provide consulting services regarding Health & Safety requirements and have facilitated in-house training on various aspects of employment law. Our approach makes our services exceptionally affordable since we work on a “no-win-no-fee” basis.
We represent trade unions such as POPCRU, MTWU and SACCAWU, Hotelica, TAWUSA, and PTWU.
*NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
