A Collective Agreement is defined in the LRA as a “written agreement concerning terms and conditions of employment or any other matter of mutual interest” concluded between a registered trade union and employer. If there is a majority union in the workplace, the agreement may also bind non-union members. Employees who are not parties to a majority union party to a Collective Agreement are bound by the agreement if those employees are identified in the agreement, and there is a provision expressly binding them.

If an employee resigns from the trade union, they are still bound by the agreement for the period that it is in force.

Collective agreements supersede any individual contracts of employment and endure for the period agreed between the parties. Employees can therefore not complain that their terms and conditions were altered to the detriment of the Collective Agreement by which they are bound. If the agreement does not contain a termination date, any party may terminate it by giving “reasonable notice” to the other party.

The LRA aims to encourage employers and unions to regulate their own terms and conditions in such agreements. Certain rights conferred in the LRA and BCEA can be amended by the collective agreement. For example, the right to refer an Unfair Labour Practice and Unfair Dismissal dispute to the CCMA or Bargaining Council can be trumped only by a Collective Agreement that states that they must be referred to a private sector Arbitrator.

The parties are further encouraged to have a Dispute Resolution Provision clause in their agreement to regulate the procedures to be followed if the parties cannot reach an agreement on certain issues. An example of such a clause is for the parties to decide what procedures should firstly be followed internally before referring a dispute to the CCMA or Bargaining Council.

When a party is in default of the collective agreement and does refer a dispute to the CCMA or Bargaining Council, the aggrieved party may argue that the matter was prematurely referred, and the CCMA or Bargaining Council does not have jurisdiction to entertain the dispute. Further, the aggrieved party can notify the defaulting party to either terminate the collective agreement or place them on specific terms to force them to comply with the said clause in the collective agreement.

It is in the employer’s best interest to seek assistance from CEO to conclude these Collective Agreements to ensure its validity and that all the necessary clauses are added in the agreement.

Article by: Anesta Kruger
Dispute Resolution Official – Durban