Chapter III: Collective Bargaining

Part C: Bargaining Councils

27. Establishment of bargaining councils

1. One or more registered trade unions and one or more registered employers' organizations may establish a bargaining council for a sector and area by-

  1. adopting a constitution that meets the requirements of section 30; and
  2. obtaining registration of the bargaining council in terms of section 29.

2. The State may be a party to any bargaining council established in terms of this section if it is an employer in the sector and area in respect of which the bargaining council is established.

3. If the State is a party to a bargaining council in terms of subsection (2), any reference to a registered employers' organisation includes a reference to the State as a party.

4. A bargaining council may be established for more than one sector.

28. Powers and functions of bargaining council

1. The powers and functions of a bargaining council in relation to its registered scope include the following-

  1. to conclude collective agreements;
  2. to enforce those collective agreements;
  3. to prevent and resolve labour disputes;
  4. to perform the dispute resolution functions referred to in section 51;
  5. to establish and administer a fund to be used for resolving disputes;
  6. to promote and establish training and education schemes;
  7. to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment and training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the bargaining council or their members;
  8. to develop proposals for submission to NEDLAC or any other appropriate forum on policy and legislation that may affect the sector and area;
  9. to determine by collective agreement the matters which may not be an issue in dispute for the purposes of a strike or a lock-out at the workplace; and
  10. to confer on workplace forums additional matters for consultation.

2. From the date on which the Labour relations Amendment Act, 1998, comes into operation, the provisions of the laws relating to pension, provident or medical aid schemes or funds must be complied with in establishing any pension, provident or medical aid scheme or fund in terms of subsection (1)(g).

3. The laws relating to pension, provident or medical aid schemes or funds will apply in respect of any pension, provident or medical aid scheme or fund established in terms of sunsection (1)(g) after the coming into operation of the Labour Relations Amendment Act, 1998.

29. Registration of bargaining councils

1. The parties referred to in section 27 may apply for registration of a bargaining council by submitting to the registrar -

  1. the prescribed form that has been properly completed;
  2. a copy of its constitution; and
  3. any other information that may assist the registrar to determine whether or not the bargaining council meets the requirements for registration.

2. The registrar may require further information in support of the application.

3. As soon as practicable after receiving the application, the registrar must publish a notice containing the material particulars of the application in the Government Gazette. The notice must inform the general public that they -

  1. may object to the application on any of the grounds referred to in subsection (4); and
  2. have 30 days from the date of the notice to serve any objection on the registrar and a copy on the applicant.

4. Any person who objects to the application must satisfy the registrar that a copy of the objection has been served on the applicant and that the objection is on any of the following grounds-

  1. the applicant has not complied with the provisions of this section;
  2. the sector and area in respect of which the application is made is not appropriate;
  3. the applicant is not sufficiently representative in the sector and area in respect of which the application is made.

5. The registrar may require further information in support of the objection.

6. The applicant may respond to an objection within 14 days of the expiry of the period referred to in subsection (3)(b), and must satisfy the registrar that a copy of that response has been served on the person who objected.

7. The registrar, as soon as practicable, must send the application and any objections, responses and further information to NEDLAC to consider.

8. NEDLAC, within 90 days of receiving the documents from the registrar, must-

  1. consider the appropriateness of the sector and area in respect of which the application is made;
  2. demarcate the appropriate sector and area in respect of which the bargaining council should be registered; and
  3. report to the registrar in writing.

9. If NEDLAC fails to agree on a demarcation as required in subsection (8)(b), the Minister must demarcate the appropriate sector and area and advise the registrar.

10. In determining the appropriateness of the sector and area for the demarcation contemplated in subsection (8)(b), NEDLAC or the Minister must seek to give effect to the primary objects of this Act.

11. The registrar-

  1. must consider the application and any further information provided by the applicant,

  2. must determine whether-

    1. the applicant has complied with the provisions of this section;
    2. the constitution of the bargaining council complies with section 30;
    3. adequate provision is made in the constitution of the bargaining council for the representation of small and medium enterprises;
    4. the parties to the bargaining council are sufficiently representative of the sector and area determined by NEDLAC or the Minister; and

    5. there is no other council registered for the sector and area in respect of which the application is made; and

  3. if satisfied that the applicant meets the requirements for registration, must register the bargaining council by entering the applicant's name in the register of councils.

12. If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar-

  1. must send the applicant a written notice of the decision and the reasons for that decision; and
  2. in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements.

13. If, within that 30-day period, the applicant meets those requirements, the registrar must register the applicant by entering the applicant's name in the register of councils.

14. If, after the 30-day period, the registrar concludes that the applicant has failed to meet the requirements for registration, the registrar must-

  1. refuse to register the applicant; and
  2. notify the applicant and any person that objected to the application of that decision in writing.

15. After registering the applicant, the registrar must:

  1. issue a certificate of registration in the applicant's name that must specify the registered scope of the applicant; and
  2. send the registration certificate and a certified copy of the registered constitution to the applicant.

30. Constitution of bargaining council

1. The constitution of every bargaining council must at least provide for-

  1. the appointment of representatives of the parties to the bargaining council, of whom half must be appointed by the trade unions that are party to the bargaining council and the other half by the employers' organizations that are party to the bargaining council, and the appointment of alternates to the representatives;
  2. the representation of small and medium enterprises,
  3. the circumstances and manner in which representatives must vacate their seats' and the procedure for replacing them;
  4. rules for the convening and conducting of meetings of representatives, including the quorum required for, and the minutes to be kept of, those meetings;
  5. the manner in which decisions are to be made;
  6. the appointment or election of office-bearers and officials, their functions, and the circumstances and manner in which they may be removed from office;
  7. the establishment and functioning of committees;
  8. the determination through arbitration of any dispute arising between the parties to the bargaining council about the interpretation or application of the bargaining council's constitution;
  9. the procedure to be followed if a dispute arises between the parties to the bargaining council;
  10. the procedure to be followed if a dispute arises between a registered trade union that is a party to the bargaining council, or its members, or both, on the one hand, and employers who belong to a registered employers' organisation that is a party to the bargaining council , on the other hand;
  11. the procedure for exemption from collective agreements;
  12. the banking and investment of its funds;
  13. the purposes for which its funds may be used;
  14. the delegation of its powers and functions;
  15. the admission of additional registered trade unions and registered employers ' organisations as parties to the bargaining council, subject to the provisions of section 56; (Section 56 provides for a procedure for the admission of parties to a council.)
  16. a procedure for changing its constitution; and
  17. a procedure by which it may resolve to wind up.

2. The requirements for the constitution of a bargaining council in subsection (1) apply to the constitution of a bargaining council in the public service except that-

  1. any reference to an "employers' organisation" must be read as a reference to the State as employer; and
  2. the requirement in subsection (1)(b) concerning the representation of small and medium enterprises does not apply.

3. The constitution of the Public Service Co-ordinating Bargaining Council must include a procedure for establishing a bargaining council in a sector of the public service designated in terms of section 37(1).

4. The constitution of a bargaining council in the public service may include provisions for the establishment and functioning of chambers of a bargaining council on national and regional levels.

5. The procedure for the resolution of disputes referred to in subsection (1)(h), (i) and (j) may not entrust dispute resolution functions to the Commission unless the governing body of the Commission has agreed thereto.

31. Binding nature of collective agreement concluded in bargaining council

Subject to the provisions of section 32 and the constitution of the bargaining council , a collective agreement concluded in a bargaining council binds

  1. the parties to the bargaining council who are parties to the collective agreement;
  2. each party to the collective agreement and the members of every other party in the collective agreement in so far as the provisions thereof apply to the relationship between such a party and the members of such other party; and

  3. The members of a registered trade union that is a party to the collective agreement and the employers who are members of a registered employers' organisation that is such a party, 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 to their employers.

32. Extension of collective agreement concluded in bargaining council

1. A bargaining council may ask the Minister in writing to extend a collective agreement concluded in the bargaining council to any non-parties to the collective agreement that are within its registered scope and are identified in the request, if at a meeting of the bargaining council-

  1. one or more registered trade unions whose members constitute the majority of the members of the trade unions that are party to the bargaining council vote in favour of the extension; and
  2. one or more registered employers' organizations, whose members employ the majority of the employees employed by the members of the employers' organizations that are party to the bargaining council, vote in favour of the extension.

2. Within 60 days of receiving the request, the Minister must extend the collective agreement, as requested, by publishing a notice in the Government Gazette declaring that, from a specified date and for a specified period, the collective agreement will be binding on the non-parties specified in the notice.

3. A collective agreement may not be extended in terms of subsection (2) unless the Minister is satisfied that-

  1. the decision by the bargaining council to request the extension of the collective agreement complies with the provisions of subsection (1);
  2. the majority of all the employees who, upon extension of the collective agreement, will fall within the scope of the agreement, are members of the trade unions that are parties to the bargaining council;
  3. the members of the employers' organisations that are parties to the bargaining council will, upon extension of the collective agreement be found to employ the majority of all the employees who fall within the scope of the collective agreement;
  4. the non-parties specified in the request fall within the bargaining council's registered scope;

  5. provision is made in the collective agreement for an independent body to hear and decide, as soon as possible, any special appeal brought against -

    1. the bargaining council's refusal of a non-party's application for exemption from the provisions of the collective agreement;

    2. the withdrawal of such an exemption by the bargaining council;

  6. the collective agreement contains criteria that must be applied by the independent body when it considersan appeal, and that those criteria are fair and promote the primary objects of this Act; and
  7. the terms of the collective agreement do not discriminate against non-parties.

4. [Sub. (4) deleted by Section 2 of Act No. 127 of 1998]

5. Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if-

  1. the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council in the area in respect of which the extension is sought; and
  2. the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectoral level or in the public service as a whole.

6.

  1. After a notice has been published in terms of subsection (2), the Minister, at the request of the bargaining council , may publish a further notice in the Government Gazette-

    1. extending the period specified in the earlier notice by a further period determined by the Minister; or
    2. if the period specified in the earlier notice has expired, declaring a new date from which, and a further period during which, the provisions of the earlier notice will be effective.
  2. The provisions of subsections (3) and (5), read with the changes required by the context, apply in respect of the publication of any notice in terms of this subsection.

7. The Minister, at the request of the bargaining council, must publish a notice in the Government Gazette cancelling all or part of any notice published in terms of subsection (2) or (6) from a date specified in the notice.

8. Whenever any collective agreement in respect of which a notice has been published in terms of subsection (2) or (6) is amended, amplified or replaced by a new collective agreement, the provisions of this section apply to that new collective agreement.

9. For the purposes of extending collective agreements concluded in the Public Service Co-ordinating Bargaining Council or any bargaining council contemplated in section 37(3) or (4) -

  1. any reference in this section to an employers' organisation must be read as a reference to the State as an employer; and
  2. subsections (3)(c), (e) and (f) and (4) of this section will not apply.

33. Appointment and powers of designated agents of bargaining councils

1. The Minister may at the request of a bargaining council appoint any person as the designated agent of that bargaining council to help it enforce any collective agreement concluded in that bargaining council.

2. A bargaining council must provide each designated agent with a certificate signed by the secretary of the bargaining council stating that the agent has been appointed in terms of this Act as a designated agent of that bargaining council.

3. Within the registered scope of the bargaining council, a designated agent of the bargaining council has all the powers conferred on a commissioner by section 142, read with the changes required by the context, except the powers conferred by section 142(1)(c) and(d). Any reference in that section to the director for the purpose of this section, must be read as a reference to the secretary of the bargaining council.

4. The bargaining council may cancel the certificate provided to a designated agent in terms of subsection (2) and the agent then ceases to be a designated agent of the bargaining council and must immediately surrender the certificate to the secretary of the bargaining council.

34. Amalgamation of bargaining councils

1. Any bargaining council may resolve to amalgamate with one or more other bargaining councils.

2. The amalgamating bargaining councils may apply to the registrar for registration of the amalgamated bargaining council and the registrar must treat the application as an application in terms of section 29.

3. If the registrar has registered the amalgamated bargaining council, the registrar must cancel the registration of each of the amalgamating bargaining councils by removing their names from the register of councils.

4. The registration of an amalgamated bargaining council takes effect from the date that the registrar enters its name in the register of councils.

5. When the registrar has registered an amalgamated bargaining council-

  1. all the assets, rights, liabilities and obligations of the amalgamating bargaining councils devolve upon and vest in the amalgamated bargaining council; and
  2. all the collective agreements of the amalgamating bargaining councils, regardless of whether or not they were extended in terms of section 32, remain in force for the duration of those collective agreements, unless amended or terminated by the amalgamated bargaining council.
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