You might receive a set down notice from the CCMA citing the dispute as “refusal to bargain”. What does this mean? And are you forced to bargain with the union?
Refusal to bargain is defined illustratively, but not exclusively, to include:
- Refusal to recognise a trade union as a collective bargaining agent;
- Refusal to agree to establish a bargaining council;
- Withdrawal of recognition of a collective bargaining agent;
- The resignation of a party from a bargaining council;
- A dispute about appropriate bargaining units;
- A dispute about appropriate bargaining levels; and
- A dispute about bargaining subjects
The Labour Relations Act does not impose a duty on employers to bargain, unless they are party to a collective agreement. Should you receive a letter from the union requesting a meeting to discuss bargaining subjects and you refuse to meet with them, what recourse do the union and employees have? The union and employees can refer a dispute to the CCMA under refusal to bargain in terms of section 64.
The dispute will be set down for conciliation in an attempt to resolve the issues. But before parties can embark on a strike, the Commissioner must make an advisory award in terms of section 135(3)(c). NUMSA & others v Transnet SOC Ltd (2016) 37 ILJ 638 (SCA) “the court concluded that the dispute in this matter evidently concerned a refusal to bargain and NUMSA could only embark on industrial action after obtaining an advisory arbitration award”. The object of an advisory award is to investigate the merits of the refusal, and a recommendation is made to the parties. It’s important to note that an advisory award is not final or binding and can not be made an order of the court.
There are two possible scenarios in which the Labour Court may intervene in collective bargaining disputes. The first scenario is where the duty to bargain is imposed by a collective agreement, and the second is discussed in Buthelezi v Labour for Africa (1991) 12 ILJ 588 (IC) which states:
“It is not for this court to interfere in bargaining between labour and management on the basis of what the court, on evidence or of its own volition, regards as a fair or unfair demand. The court would be stepping outside its legitimate terrain. The court may be entitled to have regard to the nature of the demand in extreme cases such as where the demand is unconscionable or so outrageous that one can infer that there was no intention to negotiate with the object of reaching an agreement.”
If you receive a refusal to bargain dispute, we would advise that you contact your nearest CEO office for assistance and guidance as to how to handle the dispute going forward.
Article by: Claire Turner
Provincial Manager – KZN