Chapter III: Collective Bargaining

Part B: Collective Agreements

23. Legal effect of collective agreement

1. A collective agreement binds-

1. the parties to the collective agreement;
2. each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them;
3. the members of a registered trade union and the employers who are members of a registered employers' organisation that are party to the collective agreement if the collective agreement regulates:
   1. terms and conditions of employment; or
   2. the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers;

4. employees who are not members of the registered trade union or trade unions party to the agreement if:
   1. the employees are identified in the agreement;
   2. the agreement expressly binds the employees; and
   3. that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.

2. A collective agreement binds for the whole period of the collective agreement every person bound in terms of subsection (1)(c) who was a member at the time it became binding, or who becomes a member after it became binding, whether or not that person continues to be a member of the registered trade union or registered employers' organisation for the duration of the collective agreement.

3. Where applicable, a collective agreement varies any contract of employment between an employee and employer who are both bound by the collective agreement.

4. Unless the collective agreement provides otherwise, any party to a collective agreement that is concluded for an indefinite period may terminate the agreement by giving reasonable notice to the other parties.

24. Disputes about collective agreements

1. Every collective agreement , excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26, must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration.

2. If there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute in writing to the Commission if:

1. the collective agreement does not provide for a procedure as required by subsection (1);
2. the procedure provided for in the collective agreement is not operative; or
3. any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement.

3. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

4. The Commission must attempt to resolve the dispute through conciliation.

5. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

6. If there is a dispute about the interpretation or application of an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26, any party to the dispute may refer the dispute in writing to the Commission, and subsections (3) to (5) will apply to that dispute.

See flow diagram No. 3 in Schedule 4.
See flow diagram No. 4 in Schedule 4.

7. Any person bound by an arbitration award about the interpretation or application of section 25(3)(c) and (d) or section 26(3)(d) may appeal against that award to the Labour Court.

25. Agency shop agreements

1. A representative trade union and an employer or employers' organization may conclude a collective agreement, to be known as an agency shop agreement, requiring the employer to deduct an agreed agency fee from the wages of employees identified in the agreement who are not members of the trade union, but are eligible for membership thereof.

2. For the purposes of this section, "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, whose members are a majority of the employees employed:

1. by an employer in a workplace ; or
2. by the members of an employers' organisation in a sector and area in
respect of which the agency shop agreement applies.

3. An agency shop agreement is binding only if it provides that:

1. employees who are not members of the representative trade union are not compelled to become members of that trade union;
2. the agreed agency fee must be equivalent to, or less than:
   1. the amount of the subscription payable by the members of the representative trade union;
   2. if the subscription of the representative trade union is calculated as a percentage of an employee's salary, that percentage; or
   3. if there are two or more registered trade unions party to the agreement, the highest amount of the subscription that would apply to an employee;

3. the amount deducted must be paid into a separate account administered by the representative trade union; and
4. no agency fee deducted may be:

1. paid to a political party as an affiliation fee;
2. contributed in cash or kind to a political party or a person standing for election to any political office; or
3. used for any expenditure that does not advance or protect the Socio-economic interests of employees.

4.

1. Despite the provisions of any law or contract, an employer may deduct the agreed agency fee from the wages of an employee without the employee's authorization.
2. Despite subsection 3(c) a conscientious objector may request the employer to pay the amount deducted from that employee's wages into a fund administered by the Department of Labour.

5. The provisions of sections 98 and 100(b) and (c) apply, read with the changes required by the context, to the separate account referred to in subsection (3)(c).

6. Any person may inspect the auditor's report, in so far as it relates to an account referred to in subsection (3)(c), in the registrar's office.

7. The registrar must provide a certified copy of, or extract from, any of the documents referred to in subsection (6) to any person who has paid the prescribed fees.

8. An employer or employers' organisation that alleges that a trade union is no longer a representative trade union in terms of subsection (1) must give the trade union written notice of the allegation, and must allow the trade union 90 days from the date of the notice to establish that it is a representative trade union.

9. If, within the 90-day period, the trade union fails to establish that it is a representative trade union, the employer must give the trade union and the employees covered by the agency shop agreement 30 days' notice of termination, after which the agreement will terminate.

10. If an agency shop agreement is terminated, the provisions of subsection (3)(c) and (d) and (5) apply until the money in the separate account is spent.

26. Closed shop agreements

1. A representative trade union and an employer or employers' organization may conclude a collective agreement , to be known as a closed shop agreement, requiring all employees covered by the agreement to be members of the trade union.

2. For the purposes of this section, "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, whose members are a majority of the employees employed:

1. by an employer in a workplace ; or
2. by the members of an employers' organisation in a sector and area in respect of which the closed shop agreement applies.

3. A closed shop agreement is binding only if:

1. a ballot has been held of the employees to be covered by the agreement;
2. two thirds of the employees who voted have voted in favour of the agreement;
3. there is no provision in the agreement requiring membership of the representative trade union before employment commences; and
4. it provides that no membership subscription or levy deducted may be:
   1. paid to a political party as an affiliation fee;
   2. contributed in cash or kind to a political party or a person standing for election to any political office; or
   3. used for any expenditure that does not advance or protect the Socio-economic interests of employees.

4. Despite subsection (3)(b), a closed shop agreement contemplated in subsection (2)(b) may be concluded between a registered trade union and a registered employers' organization in respect of a sector and area to become binding in every workplace in which:

1. a ballot has been held of the employees to be covered by the agreement; and
2. two thirds of the employees who voted have voted in favour of the agreement.

5. No trade union that is party to a closed shop agreement may refuse an employee membership or expel an employee from the trade union unless:

1. the refusal or expulsion is in accordance with the trade union's constitution; and
2. the reason for the refusal or expulsion is fair, including, but not limited to, conduct that undermines the trade union's collective exercise of its rights.

6. It is not unfair to dismiss an employee:

1. for refusing to join a trade union party to a closed shop agreement;
2. who is refused membership of a trade union party to a closed shop agreement if the refusal is in accordance with the provisions of subsection (5); or
3. who is expelled from a trade union party to a closed shop agreement if the expulsion is in accordance with the provisions of subsection (5).

7. Despite subsection (6)-

1. the employees at the time a closed shop agreement takes effect may not be dismissed for refusing to join a trade union party to the agreement; and
2. employees may not be dismissed for refusing to join a trade union party to the agreement on grounds of conscientious objection.

8. The employees referred to in subsection (7) may be required by the closed shop agreement to pay an agreed agency fee, in which case the provisions of section 25(3)(b), (c) and (d) and (4) to (7) apply.

9. If the Labour Court decides that a dismissal is unfair because the refusal of membership of or the expulsion from a trade union party to a closed shop agreement was unfair, the provisions of Chapter VIII apply, except that any order of compensation in terms of that Chapter must be made against the trade union.

10. A registered trade union that represents a significant interest in, or a substantial number of, the employees covered by a closed shop agreement may notify the parties to the agreement of its intention to apply to become a party to the agreement and, within 30 days of the notice, the employer must convene a meeting of the parties and the registered trade union in order to consider the application.

11. If the parties to a closed shop agreement do not admit the registered trade union as a party, the trade union may refer the dispute in writing to the Commission.

12. The registered trade union must satisfy the Commission that a copy of the referral has been served on all the parties to the closed shop agreement.

13. The Commission must attempt to resolve the dispute through conciliation.

14. If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

15. The representative trade union must conduct a ballot of the employees covered by the closed shop agreement to determine whether the agreement should be terminated if-

1. one third of the employees covered by the agreement sign a petition calling for the termination of the agreement; and
2. three years have elapsed since the date on which the agreement commenced or the last ballot was conducted in terms of this section.

16. If a majority of the employees who voted, have voted to terminate the closed shop agreement, the agreement will terminate.

17. Unless a collective agreement provides otherwise, the ballot referred to in subsections (3)(a) and (15) must be conducted in accordance with the guidelines published by the Commission.