Labour guides has received a number of enquiries about the Labour Relations Act 66 of 1995 and the Basic Conditions of Employment Bill 1997. The Act and Bill are available from the Government Printer in Pretoria. Jutas stocks analyses of the legislation.
Please note that the Employment Bill 1997 is only a draft bill published for public comment and is not yet law. It is this Bill that Cosatu is objecting to as being too employer-friendly.
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Prepared by Rael Solomon and
The Labour Consultancy.
THIS week, This week Labour Guides' Rael Solomon takes a look at Bargaining Councils which have replaced the old Industrial Councils.
Employers referring disputes to the C.C.M.A. should take note that the relevant Bargaining Council for the particular industry in which they are employed may elect to hear the dispute in place of the C.C.M.A. The methodology of dispute resolution and the protection given by the Act remains unchanged.
BARGAINING COUNCILS, WITH THEIR OWN |
DISPUTE RESOLUTION MECHANISMS,
EASE THE LOAD ON THE CCMA
The existing industrial Councils which operate within a particular industry will now be referred to as Bargaining Councils. Those sectors which did not have Industrial Councils, will be entitled to establish Bargaining Councils. We shall discuss the purpose and functions of Bargaining Councils, but the main purpose is to create a body for the purpose of conducting
collective bargaining between the respective interested parties. Bargaining Councils will be represented by trade unions and employers and/or employers organisations, including the State as an employer.
In terms of the Act Bargaining Councils should attempt to achieve the following:
- As the name suggest, provide an opportunity and a forum for the parties to bargain and reach collective agreements;
- The attempt, through negotiation, to prevent and resolve labour disputes;
- The Act states that each council must have a dispute resolving mechanism to attempt to resolve all disputes between interested parties which fall under that Bargaining Council, by means of mediation and arbitration. This is referred to as self-regulation in terms of the new Act. The Act encourages parties to establish their own dispute resolving mechanisms in order to avoid referral of disputes to outside agencies, e.g. the Commissioner for Mediation and Arbitration. These are matters which will normally be dealt with in collective agreements;
- To promote training and education schemes for the benefit of its members;
- The Bargaining Council shall attempt, by means of negotiation and by collective agreement, to agree upon which matters will not be subject of strike action, or lock-out, at the workplace.
EXTENSION OF COLLECTIVE AGREEMENTS
In terms of the Act, a Bargaining Council may ask the Minister of Labour to extend a collective agreement concluded in a Bargaining council to non-parties to the collective agreement. The agreement may be extended if;
- a) one or more registered trade unions, whose members make up the majority of the members representing employees that are party to the Bargaining Council vote in favour of the extension, and;
- b) one or more registered employers organisations, whose members employ the majority of the employees employed by the members of the employers organisations that are party to the Bargaining Council, vote in favour of the extension.
However, in order not to cause unnecessary harm or prejudice to any person or persons, the Act states that persons who are not parties to the collective agreement may take submissions to an independent body to be exempted, or not to be bound by the collective agreement.
ENFORCEMENT OF COLLECTIVE AGREEMENTS
In terms of the old Labour Relations Act, braches of the terms and conditions of collective agreements were regarded as crimes, and enforcement had to take place in the Criminal Courts. In terms of the new Act, braches of collective agreements concluded in a Bargaining Council will now be subject to conciliation and arbitration in terms of the structures established by the Bargaining Council in question.
Statutory Councils are a “mini-version” of a Bargaining Council, which are much easier to form than a Bargaining council, because less representation is required by the parties.
However, a Statutory Council has much more limited powers than a Bargaining Council, especially with regard to collective bargaining.
A registered trade union or one or more trade unions, acting jointly, whose members constitute at least 30% of the employees in a particular sector and an area; and a registered employers’ organisation or more than one registered employers’ organisations, acting jointly, whose members employ at least 30% of the employees in a particular sector and an area, can establish a Statutory Council.