A Bargaining Council Agreement is the outcome of centralised collective bargaining under the Labour Relations Act (LRA). A Bargaining Council Agreement sets out terms and conditions of employment for a particular industry in a particular area. The conditions in the collective agreement may be better for employees than those in the Basic Conditions of Employment Act (BCEA), or employees may agree to conditions less favourable than the BCEA provided they do not affect certain core rights and the agreement is better for the employees concerned. (See Section 49 of the BCEA)

HOW ARE BARGAINING COUNCIL AGREEMENTS MADE?

Bargaining Councils are permanent structures. They are made up of representatives of employers on the one hand and of trade unions on the other. The LRA sets out conditions for setting up Bargaining Councils. The two parties to a Bargaining Council negotiate together to make a Bargaining Council Agreement which is reported in the Government Gazette. A Bargaining Council may ask the Minister of Employment and Labour in writing to extend a collective agreement to any non-parties to the agreement, who are within the ’scope’ of the council. If there is no Bargaining Council in a sector, unions or employer organisations can apply to establish a Statutory Council under the LRA. For a Statutory Council to be introduced, the unions in that sector must represent 30% or more of employees in the sector, and the employers’ organisation must represent 30% or more of employers in the sector. Statutory Councils can negotiate education and training, benefit funds and dispute resolution in the sector. In Statutory Councils, employers are not forced to negotiate over wages and conditions of employment. A Statutory Council may become a Bargaining Council later. At present only three Statutory Councils have been created: they are the Statutory Council of the Printing, Newspaper and Packaging Industry of South Africa; the Statutory Council for the Fast Food, Restaurant, Catering and Allied Trades (SCFFRCAT) and the Statutory Council for the Squid and Related Fisheries of South Africa.

ENFORCEMENT OF A BARGAINING COUNCIL AGREEMENT

It is an offence for employers or employees working in a particular industry and area not to obey the terms of the Bargaining Council Agreement. Any problems with any of the working conditions in the Agreement must be referred to the Bargaining Council for investigation. The Bargaining Council’s agents have powers of inspection similar to Labour Inspectors in terms of the BCEA. Such agents can provide Compliance Orders where employers are in breach of the council agreement. (See Problem 3: Employee is paid below the minimum wage)

SETTLING DISPUTES UNDER A BARGAINING COUNCIL

The Bargaining Council also plays a role in settling disputes, such as unfair labour practices or unfair dismissals in a particular industry. Disputes must be referred to the relevant Bargaining Council for conciliation if a Bargaining Council exists in the sector. The Council appoints conciliators to act as conciliators to try to help the two parties negotiate a solution. If the conciliation does not resolve the dispute, either of the parties may refer the matter for arbitration to the Bargaining Council which has its own accredited arbitrators. The Bargaining Council dispute resolution procedure is similar to the CCMA dispute resolution procedure. A Bargaining Council or CCMA Arbitrator may make an award ordering the employer to pay unpaid annual leave for example, an amount owing, or make an appropriate award. (See Solving disputes under the LRA)