SEPTEMBER
2006 NEWSLETTER
COLLECTIVE AGREEMENTS
In
the past 10 years of democracy we have seen an
intensification of union rights in South Africa.
The culmination of the magnitude of the unions’
power and strength is demonstrated in the formation
of collective agreements. In terms of the Section
213 of the Labour Relation Act 66 of 1995, a collective
agreement must contain the following elements:
1.
It must be a written agreement;
2.
It must deal with terms and conditions of employment
or any other matter of mutual interest;
3.
It must be concluded by one or more registered
trade unions, on the one hand, and one or more
employers or one more registered employers’
organisations on the other hand.
It
is important to bear in mind that Collective Agreements
are not only concluded between employers and registered
trade unions at a specific business only, but
are also established for specific industries.
If
such an agreement meets the above definition of
Section 213, all the members of that employers’
organisation and the members of the union are
bound by the agreement if it regulates the terms
and conditions of employment or the conduct of
employers in relation to employees. In a bizarre
set of circumstances, the Act also allows it to
be binding on non-members. A collective agreement
could however only bind non-members if-
•
It is expressly stated that the agreement binds
them as well;
•
The employees that are non-members are identified
in the agreement; and
•
The registered trade union represents the majority
of the employees in the workplace.
In the case of Sigwali & Others v Libanon
(a Division of Kloof Gold Mine) (2000) 21ILJ 641
(LC), the Labour Court held that non-union members
were bound by a collective
agreement (which compelled them to retire at a
certain age) in terms of Section 23(1) (d) of
the Labour Relations Act as the agreement was
concluded with a majority union and they were
identified therein.
There
are two different types of collective agreements,
namely an agency shop agreement and a closed shop
agreement. An agency shop agreement is when a
majority union, or two or more unions acting jointly
that represents the majority of the employees
in the workplace, would be able to negotiate an
agreement with the employer, could deduct an agreed
agency fee from the wages of employees who are
not members of the union and who are identified
in the agreement.
In
a closed shop agreement, every employee of the
employer must belong to the particular representative
trade union. The union is regarded as the sole
bargaining agent of these employees. In many such
agreements, a provision is normally made for a
period during which a new employee would get the
opportunity to join the trade union, if the new
employee fails to become a member of the particular
union or if the union refuses to allow him/her
to join the union, his/her services must be terminated.
The
agency shop agreement differs from the closed
shop agreement in that there is no onus on the
non-members to join the trade union in terms of
an agency shop agreement. It is advisable that
new employees as well as existing employees take
careful note of the collective agreements that
exist in the specific industry or business that
they find themselves in as one may be bound by
the agreement and would have to adhere to it.
Should
you have any query regarding the above, please
do not hesitate to contact the writer hereof at
012-342 9895 or e-mail Lesley@legaledge.co.za.
Written
by
Lesley Ramulifho
PETZER,
DU TOIT AND RAMULIFHO
