Collective bargaining is the process of negotiations through which a trade union tries to get an employer to formally agree and accept the workplace demands that workers put forward. Workplace demands can include wages, working conditions, union rights, etc.
The aim of collective bargaining is to reach an amicable agreement on the workplace demands and to avoid a “deadlock”, which could ultimately result in a strike and/or lockout.
A strike should only be considered as a last resort when negotiations are clearly failing, as the ramifications of a strike can be financially devastating to both the employer and employees. Employers are urged to approach the process of collective bargaining with an open mind and with a strike/lockout scenario as a last resort.
Once parties have concluded the rigorous process of collective bargaining and have reached an agreement on the issues, is that where the process ends? No, the parties must now record the terms of their agreement into a formal, legally binding document known as a collective agreement.
Section 213 of the Labour Relations Act (“the LRA”) defines a collective agreement as a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions on the one hand and on the other hand:
- One or more employers;
- One or more registered employers’ organisations; or
- One or more employers and one or more registered employers’ organisation
Concluding a collective agreement is beneficial to all parties involved as it provides security and stability in the workplace and ultimately promotes a harmonious working environment.
The agreement is a very important part of the negotiating process and should contain the following essentials:
- It should be clear, unambiguous, and in writing,
- It should cover a fixed period of time during which the agreement will be binding,
- It should contain a date on which it comes into effect,
- It should regulate the workplace demands that were the subject of the negotiations and on which the parties reached an agreement.
A further benefit to concluding a collective agreement can be found in section 65(1)(a) of LRA, which limits an employee’s right to strike and an employer’s recourse to lockout. In terms of this section, no person may take part in a strike or a lockout if that person is bound by a collective agreement that prohibits a strike or lockout. However, it is important to remember that this prohibition is only binding for the period of time in which the collective agreement is valid.
Furthermore, parties may agree, in terms of section 23 of the LRA, that the collective agreement will also be binding on those employees who are not members of the trade union that is a party to the collective agreement. This could potentially ensure that the entire workforce will be prohibited from embarking on a strike.
Once the collective agreement has been signed and accepted by the parties, the negotiation process will have concluded. Should either party to the agreement thereafter disagree on the terms or application of the agreement, that party may then refer a dispute to the CCMA regarding the interpretation of the agreement.
By concluding a collective agreement, the parties will have effectively resolved the disputes between them and thus avoided a strike scenario. The parties will then be able to go about their daily business as employer and employee.
Article by: Cathryn Gungadeen
Dispute Resolution Official – Durban