Employers are often confronted by trade unions, requesting or insisting on organisational rights within their businesses. These requests are accompanied by a recognition or other Collective Agreement.
Smaller and even medium enterprises are, more often than not, bewildered by such requests, forcing them to commit errors in judgement and they have to live with the consequences of those errors.
Before considering their legal position, employers should first grasp the concept and purpose of Collective Bargaining as well as Collective Agreements.
What is Collective Bargaining?
Collective Bargaining generally refers to the process where trade unions engage employers on matters of mutual interest such as wages, benefits, working hours, working conditions, etc.
Collective Bargaining takes place at various levels:
- Centralised Level: for instance at Bargaining Councils like the National Bargaining Council for the Private Security Sector (NBCPSS)
- Company Level: where the employer directly negotiates with elected shop stewards from across all the workplaces in a company
- Plant Level: where the employer directly negotiates with elected shop stewards from a specific workplace of the company
- Sectoral Level: such as Sectoral Determinations, for instance the Sectoral Determination No 6 for the Private Security Industry (Read more about the stakeholders in the Private Security Sector)
This article relates to Collective Bargaining at Company and Plant levels.
What are Collective Agreements?
A Collective Agreement aims to regulate the relationship, duties, and obligations between the employer and the trade union when negotiating on matters of mutual interest.
Collective Agreements are generally divided into 3 categories:
- Simple Recognition Agreements, which provides for 2 separate instances, which are:
- Where the trade union represents the majority of the employees (50% plus 1)
- Where the trade union has sufficient representation within the workplace. (20% to 50%)
- Closed Shop Agreements
- Agency Shop Agreements
Each of these agreements has its own specific character, advantages and disadvantages. Employers should take care and even obtain professional advice before entering into any of these agreements.
The Employer’s risk when failing to engage with Trade Unions or to conclude a Collective Agreement
Failure by employers to meet and negotiate with trade unions, or to conclude a Collective Bargaining Agreement where the law requires them to do so, will be met with a referral to the CCMA. The emphases the need to ensure that employers are properly advised from the very onset of the engagement.
