Negotiating forums play an important role when it comes to effective collective bargaining within bargaining councils. These forums serve as a vital platform where registered trade unions and employer organisations engage in structured dialogue to negotiate sector-wide agreements. It must be noted that by promoting a process that is representative, inclusive, and transparent, negotiating forums help to ensure that the outcomes of collective bargaining carry both legal authority and moral legitimacy. This legitimacy is especially critical when parties seek the Minister of Employment and Labour’s approval to extend collective agreements to non-parties within the sector.
The presence of a robust negotiating forum is indispensable to the extension process. It guarantees that the collective agreement reflects a genuine consensus among the majority of sector stakeholders. Without such a forum, the process risks procedural challenges and failure due to fragmented representation or lack of sufficient support, affecting the enforceability and sector-wide applicability of collective agreements. Consequently, strengthening negotiating forums is essential to enhancing sectoral dialogue, promoting fair labour practices, and ensuring the smooth extension of collective agreements to all employers and employees within the bargaining council’s jurisdiction.
Once a negotiating forum is properly constituted and a settlement agreement is reached, the focus shifts to the potential extension of the collective agreement to non-parties within the sector, a process governed by the Labour Relations Act (LRA). This process aims to promote sectoral stability and uniform standards, which require compliance with specific representivity thresholds. In particular, sections 32(3)(b) and 32(3)(c) of the Labour Relations Act empower the Minister of Employment and Labour to extend a collective agreement to non-parties only if the bargaining council is sufficiently representative of the sector and geographic area.
When bargaining parties meet the 50% + 1 representivity threshold, where the majority of both employees and employers in the sector are represented, the Minister of Employment and Labour is legally obligated to extend the collective agreement to non-parties, in terms of sections 32(2) and 32(5) of the Labour Relations Act. However, if this threshold is not met, the extension becomes discretionary, and the Minister may either decline the extension or request additional evidence of sufficient representivity.
The Minister may also call for public consultation before making a final decision. In such cases, the agreement will bind only the signatory parties, limiting its sectoral impact. This highlights the critical importance of robust negotiating forums and the need for parties to build broad-based representivity to support enforceable agreements and sector-wide outcomes.
Article by Ernest Masupye
Senior Collective Bargaining Coordinator at Consolidated Employers Organisation (CEO SA)