Item 4(1) of the Code of Good Practice: Collective bargaining, industrial action and picketing (hereinafter referred to as the Code), defines collective bargaining as “a voluntary process in which organised labour in the form of trade unions and employers or employer’s organisations negotiate collective agreements with each other to determine wages, terms and conditions of employment or other matters of mutual interest. The collective bargaining process may be established institutionally, by agreement or in practice.”
Even though the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA) supports collective bargaining, there exists no legal duty on an employer to bargain with unions.
Item 4(4) of the Code describes the obligation to bargain as follows: “There is no constitutional or statutory duty to bargain. Collective bargaining under the Act is voluntary, and employers (other than the State) and trade Unions are permitted to determine their collective bargaining relationship in the institutional form of bargaining councils at sectoral level (the form promoted by the Act) or by way of a recognition agreement at multi-employer or workplace level. However, once having established a collective bargaining relationship in the form of a bargaining council constitution or a recognition agreement, the parties thus by agreement implicitly committed themselves to a duty to bargain and the duty to bargain under such circumstances does not arise statutorily but contractually.”
Where an employer refuses to bargain, recourse can be found in terms of section 64 of the LRA. A Refusal to bargain in terms of section 64(2) includes:
- A refusal
- to recognise a trade union as a collective bargaining agent; or
- to agree to establish a bargaining council
- a withdrawal of recognition of a collective bargaining agent;
- a resignation of a party from a bargaining council;
- a dispute about-
- appropriate bargaining units;
- appropriate bargaining levels; or
- bargaining subjects.
If the refusal to bargain is referred in terms of section 64 of the LRA, the matter will be conciliated by a commissioner who will try and negotiate a settlement agreement between the parties. If the dispute remains unresolved, or a period of 30 days has elapsed since the referral was received by the council or commission, an advisory award must have been made in terms of section 135(3)(c) before a notice is given to strike or lock-out. An advisory award is merely a recommendation by the commissioner, as it is not final and binding and cannot be made an order of the court.
In essence, an employer has no legal obligation to bargain, except where the employer is a party to a collective agreement that imposes collective bargaining. A Union will have to refer the matter in terms of section 64 of the LRA to try and persuade the employer to bargain.
Article by: Aletta Eksteen
Dispute Resolution Official – Cape Town