Part B: Collective Agreements
1.
Legal effect of collective agreement
(1)
A collective agreement binds-
(a)
the parties to the collective
agreement;
(b)
each party to the collective
agreement and the members of every other I party to the collective agreement,
in so far as the provisions are applicable between them;
(c)
the members of a registered trade
union and the employers who are members of a registered employers' organisation
that are party to the collective agreement if the collective agreement
regulates-
(i)
terms and conditions of
employment; or
(ii)
the conduct of the employers in
relation to their employees or the conduct of the employees in relation to
their employers;
(d)
employees who are not members
of the registered trade union or trade unions party to the agreement if-
(i)
the employees are identified in
the agreement;
(ii)
the agreement expressly binds
the employees; and
(iii)
that trade union or those trade
unions have as their members the majority of employees employed by the employer
in the workplace.
(2)
A collective agreement binds
for the whole period of the collective agreement every person bound in terms of
subsection (1)(c) who was a member at the time it became binding, or who
becomes a member after it became binding, whether or not that person continues
to be a member of the registered trade union or registered employers'
organisation for the duration of the collective agreement.
(3)
Where applicable, a collective
agreement varies any contract of employment between an employee and employer
who are both bound by the collective agreement.
(4)
Unless the collective agreement
provides otherwise, any party to a collective agreement that is concluded for
an indefinite period may terminate the agreement by giving reasonable notice in
writing to the other parties.
2.
Disputes about collective agreements
(1)
Every collective agreement,
excluding an agency shop agreement concluded in terms of section 25 or a closed
shop agreement concluded in terms of section 26 or a settlement agreement
contemplated in either section 142A or 158(1)(c), must provide for a procedure
to resolve any dispute about the interpretation or application of the
collective agreement. The procedure must first require the parties to attempt
to resolve the dispute through conciliation and, if the dispute remains
unresolved, to resolve it through arbitration.
(2)
If there is a dispute about the
interpretation or application of a collective agreement, any party to the
dispute may refer the dispute in writing to the Commission if-
(a)
the collective agreement does
not provide for a procedure as required by subsection (1);
(b)
the procedure provided for in the
collective agreement is not operative; or
(c)
any party to the collective
agreement has frustrated the resolution of the dispute in terms of the
collective agreement.
(3)
The party who refers the
dispute to the Commission must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(4)
The Commission must attempt to
resolve the dispute through conciliation.
(5)
If the dispute remains
unresolved, any party to the dispute may request that the dispute be resolved
through arbitration.5
(6)
If there is a dispute about the
interpretation or application of an agency shop agreement concluded in terms of
section 25 or a closed shop agreement concluded in terms of section 26, any
party to the dispute may refer the dispute in writing to the Commission, and
subsections (3) to (5) will apply to that dispute.6
(7)
Any person bound by an
arbitration award about the interpretation or application of section 25(3)(c)
and (d) or section 26(3)(d) may appeal against that award to the Labour Court.
(8)
If there is a dispute about the
interpretation or application of the settlement agreement contemplated in
either section 142(A) or 158(1)(c), a party may refer the dispute to a council
or the Commission and subsections (3) to (5), with the necessary changes, apply
to that dispute.
5. See flow diagram No. 3
in Schedule 4.
6. See flow diagram No. 4
in Schedule 4.
3.
Agency shop agreements
(1)
A representative trade union
and an employer or employers' organisation may conclude a collective agreement,
to be known as an agency shop agreement, requiring the employer to deduct an
agreed agency fee from the wages of employees identified in the agreement who
are not members of the trade union but are eligible for membership thereof.
(2)
For the purposes of this
section, "representative trade union" means a registered trade union,
or two or more registered trade unions acting jointly, whose members are a
majority of the employees employed-
(a)
by an employer in a workplace;
or
(b)
by the members of an employers'
organisation in a sector and area in respect of which the agency shop agreement
applies.
(3)
An agency shop agreement is
binding only if it provides that-
(a)
employees who are not members
of the representative trade union are not compelled to become members of that
trade union;
(b)
the agreed agency fee must be
equivalent to, or less than-
(i)
the amount of the subscription
payable by the members of the representative trade union;
(ii)
if the subscription of the
representative trade union is calculated as a percentage of an employee's
salary, that percentage; or
(iii)
if there are two or more
registered trade unions party to the agreement, the highest amount of the
subscription that would apply to an employee;
(c)
the amount deducted must be
paid into a separate account administered by the representative trade union;
and
(d)
no agency fee deducted may be-
(i)
paid to a political party as an
affiliation fee;
(ii)
contributed in cash or kind to
a political party or a person standing for election to any political office; or
(iii)
used for any expenditure that
does not advance or protect the socio-economic interests of employees.
(4)
(a) Despite the provisions of
any law or contract, an employer may deduct the agreed agency fee from the
wages of an employee without the employee's authorisation.
(b)
Despite subsection 3(c) a
conscientious objector may request the employer to pay the amount deducted from
that employee's wages into a fund administered by the Department of Labour.
(5)
The provisions of sections 98
and 100(b) and (c) apply, read with the changes required by the context, to the
separate account referred to in subsection (3)(c).
(6)
Any person may inspect the
auditor's report, in so far as it relates to an account referred to in
subsection (3)(c), in the registrar's office.
(7)
The registrar must provide a certified
copy of, or extract from, any of the documents referred to in subsection (6) to
any person who has paid the prescribed fees.
(8)
An employer or employers'
organisation that alleges that a trade union is no longer a representative
trade union in terms of subsection (1) must give the trade union written notice
of the allegation, and must allow the trade union 90 days from the date of the
notice to establish that it is a representative trade union.
(9)
If, within the 90-day period,
the trade union fails to establish that it is a representative trade union, the
employer must give the trade union and the employees covered by the agency shop
agreement 30 days' notice of termination, after which the agreement will
terminate.
(10)
If an agency shop agreement is
terminated, the provisions of subsection (3)(c) and (d) and (5) apply until the
money in the separate account is spent.
4.
Closed shop agreements
(1)
A representative trade union
and an employer or employers' organisation may conclude a collective agreement,
to be known as a closed shop agreement, requiring all employees covered by the
agreement to be members of the trade union.
(2)
For the purposes of this
section, "representative trade union" means a registered trade union,
or two or more registered trade unions acting Jointly, whose members are a
majority of the employees employed-
(a)
by an employer in a workplace;
or
(b)
by the members of an employers'
organisation in a sector and area in respect of which the closed shop agreement
applies.
(3)
A closed shop agreement is
binding only if-
(a)
a ballot has been held of the
employees to be covered by the agreement;
(b)
two thirds of the employees who
voted have voted in favour of the agreement;
(c)
there is no provision in the
agreement requiring membership of the representative trade union before
employment commences; and
(d)
it provides that no membership
subscription or levy deducted may be-
(i)
paid to a political party as an
affiliation fee;
(ii)
contributed in cash or kind to
a political party or a person standing for election to any political office; or
(iii)
used for any expenditure that
does not advance or protect the socio-economic interests of employees.
(4)
Despite subsection (3)(b), a
closed shop agreement contemplated in subsection (2)(b) may be concluded
between a registered trade union and a registered employers' organisation in
respect of a sector and area to become binding in every workplace in which-
(a)
a ballot has been held of the
employees to be covered by the agreement; and
(b)
two thirds of the employees who
voted have voted in favour of the agreement.
(5)
No trade union that is party to
a closed shop agreement may refuse an employee membership or expel an employee
from the trade union unless-
(a)
the refusal or expulsion is in
accordance with the trade union's constitution; and
(b)
the reason for the refusal or
expulsion is fair, including, but not limited to, conduct that undermines the
trade union's collective exercise of its rights.
(6)
It is not unfair to dismiss an
employee-
(a)
for refusing to join a trade
union party to a closed shop agreement;
(b)
who is refused membership of a
trade union party to a closed shop agreement if the refusal is in accordance
with the provisions of subsection (5); or
(c)
who is expelled from a trade
union party to a closed shop agreement if the expulsion is in accordance with
the provisions of subsection (5).
(7)
Despite subsection (6)-
(a)
the employees at the time a
closed shop agreement takes effect may not be dismissed for refusing to Join a
trade union party to the agreement; and
(b)
employees may not be dismissed
for refusing to join a trade union party to the agreement on grounds of
conscientious objection.
(8)
The employees referred to in
subsection (7) may be required by the closed shop agreement to pay an agreed
agency fee, in which case the provisions of section 25(3)(b), (c) and (d) and
(4) to (7) apply.
(9)
If the Labour Court decides
that a dismissal is unfair because the refusal of membership of or the
expulsion from a trade union party to a closed shop agreement was unfair, the
provisions of Chapter VIII apply, except that any order of compensation in
terms of that Chapter must be made against the trade union.
(10)
A registered trade union that
represents a significant interest in, or a substantial number of, the employees
covered by a closed shop agreement may notify the parties to the agreement of
its intention to apply to become a party to the agreement and, within 30 days
of the notice, the employer must convene a meeting of the parties and the
registered trade union in order to consider the application.
(11)
If the parties to a closed shop
agreement do not admit the registered trade union as a party, the trade union
may refer the dispute in writing to the Commission.
(12)
The registered trade union must
satisfy the Commission that a copy of the referral has been served on all the
parties to the closed shop agreement.
(13)
The Commission must attempt to
resolve the dispute through conciliation.
(14)
If the dispute remains
unresolved, any party to the dispute may refer it to the Labour Court for
adjudication.
(15)
The representative trade union
must conduct a ballot of the employees covered by the closed shop agreement to
determine whether the agreement should be terminated if-
(a)
one third of the employees
covered by the agreement sign a petition calling for the termination of the
agreement; and
(b)
three years have elapsed since
the date on which the agreement commenced or the last ballot was conducted in
terms of this section.
(16)
If a majority of the employees
who voted, have voted to terminate the closed shop agreement, the agreement
will terminate.
(17)
Unless a collective agreement
provides otherwise, the ballot referred to in subsections (3)(a) and (15) must
be conducted in accordance with the guidelines published by the Commission.