PURPOSE, APPLICATION AND INTERPRETATION
· Purpose of this Act – The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are-
(i) collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and
(ii) formulate industrial policy; and
· d) to promote –
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision-making in the workplace; and
(iv) the effective resolution of labour disputes.
By careful consideration of the wording used by the legislature, it would be safe to state that collective bargaining is the core of collective labour law. Collective labour law refers to the law regulating situations where employees act collectively through vehicles such as trade unions while upholding a relationship with their employer counterparts through vehicles known as employer organisations, who also exist because of collective action. It is clear that the Government fiercely backs collective bargaining as the preferred means of securing labour peace, social justice, economic development and employment equity.
The above-mentioned relationship between labour and the employers is mainly the cause for the creation and change of terms and conditions of employment and other matters of mutual interest. It is within this relationship that bargaining and negotiations take place. However, a very slim chance exists for any bona fide, pro-active and proper negotiations and bargaining unless it is done within a formal structure. To reach these objectives the legislature proved to be very innovative. The old Industrial Councils were renamed as Bargaining Councils. These were no longer limited to the traditional industrial sectors but also included the public sector. A bargaining structure was also established for the public service known as the Public Service Co-ordinating Bargaining Council (PSCBC). This Council has the power to designate sectors in the public service and these sectors may then establish their own bargaining councils.
Our Bargaining Council made its leap into history as the “Industrial Council for the Furniture Manufacturing Industry”. This was achieved when the then Minister of Labour, the late Thomas Boydell signed the first Industrial Agreement which consisted of 5½ pages. It became effective on 16 August 1926. In 1996 this Council was renamed the “Furniture, Bedding and Upholstery Industry Bargaining Council, Greater Northern Region”. In August 2006 this Council celebrated its 80 years of existence and underwent another name change during its amalgamation with the Free State Province’s Furniture Bargaining Council on 26 April 2006 to the “Furniture Bargaining Council”.
All conditions of employment which are negotiated and agreed to between labour and employers annually are reflected in a collective agreement. This collective agreement becomes effective between the parties who signed it on the date agreed to by the parties. To make the Collective Agreement applicable to non-parties, the Bargaining Council must request the Minister of Labour in writing to extend the Collective Agreement to non-parties in terms of Section 32 of the Labour Relations Act, 1995 (Act 66 of 1995). The Minister must extend the Collective Agreement to non-parties by publishing a notice in the Government Gazette declaring the collective agreement binding on non-parties for a specified period. The Minister will not extend the Collective Agreement to non-parties unless he is satisfied, inter alia, that-
the majority of all the employees who, upon extension of the collective agreement, will fall within the scope of the agreement, are members of the trade unions that are parties to the bargaining council; and
the members of the employers’ organisations that are parties to the bargaining council will, upon the extension of the collective agreement, be found to employ the majority of all the employees who fall within the scope of the collective agreement.
Since we were representative again during July 2006 in terms of the above criteria, our current collective agreement was extended to the non-parties by the Minister of Labour and this extension became effective on 18 August 2006.
During June 2006 this Council successfully applied in the Witwatersrand Local Division of the High Court of South Africa for an urgent interdict against an unregistered employers association who was inciting non-parties who were subject to the jurisdiction of this Council. The “Independent Employers Association” acting via its “chairman”, unlawfully incited the nonpayment of employer and employee contributions which are payable to the Council in terms of the Industry’s Collective Agreement by its non-party members.
On 22 June 2006 this urgent interdict was granted with costs. The association applied for leave to appeal against the interdict, but this was also dismissed with costs.
This is, inter alia, a clear indication that rights and obligations as reflected in our Collective Agreement will be protected by the courts and the laws of this country to the benefit of the employers and employees in our Industry.
The powers and functions of a bargaining council in relation to its registered scope include the following-
to conclude collective agreements;
to enforce those collective agreements;
to prevent and resolve labour disputes;
to perform the dispute resolution functions referred to in Section 51 of the Act;
to establish and administer a fund to be used for resolving disputes;
to promote and establish training and education schemes;
to establish and administer pension, provident fund, medical aid, sick pay, holiday, unemployment and training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the bargaining council or their members;
to develop proposals for submission to NEDLAC or any other appropriate forum on policy and legislations that may affect the sector and area;
to determine by collective agreement the matters which may not be an issue in dispute for the purposes of a strike or a lock-out at the workplace;
to confer on workplace forums additional matters for consultation;
to provide industrial support services within the sector; and
to extend the services and functions of the bargaining council to workers in the informal sector and home workers.
A collective agreement concluded in a bargaining council binds-
The parties to the bargaining council who are also parties to the collective agreement;
each party to the collective agreement and the members of every other party to the collective agreement in so far as the provisions thereof apply to the relationship between such a party and the members of such other party; and
the members of a registered trade union that is a party to the collective agreement and the employers who are members of a registered employers’ organisation that is such a party, if the collective agreement regulates-
a) terms and conditions of employment; or
b) the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers.
Our Collective Agreement is a written agreement and it contains all the employment conditions of the employees it is applicable to. It also deals with matters of mutual interest.
The Collective Agreement can vary basic conditions as set out by the Basic Conditions of Employment Act, 1997 (Act 75 of 1997), unless it is a core condition in terms of the Act.
The Collective Agreement can also vary an employment contract, provided the issues concerned are not core conditions in terms of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997).
The Collective Agreement must make provision for a process for the resolution of disputes.
Non-parties in the Industry, when the Minister of Labour has extended the collective agreement in terms of section 32 of the LRA.
To enforce the Collective Agreement this Council utilises staff members which have been appointed by the Minister of Labour as Designated Agents. Without limiting the powers of these Designated Agents, they have, inter alia, the following powers:
A designated agent may-
secure compliance with the council’s collective agreements by-
a) publicising the contents of the agreements;
b) conducting inspections;
c) investigating complaints; or
Any other means the council may adopt; and perform any other functions that are conferred or imposed on the agent by the council.
Within the registered scope of a bargaining council, a designated agent of the bargaining council has all the powers set out in Schedule 10.
In terms of Schedule 10 a designated agent has inter alia the following powers:
A designated agent may, without warrant or notice at any reasonable time, enter any workplace or any other place where an employer carries on a business or keeps employment records, that is not a home, in order to monitor or enforce compliance with a collective agreement concluded in the bargaining council.
In order to monitor or enforce compliance with a collective agreement a designated agent may-
a) require a person to disclose information, either verbally or in writing, and either alone or in the presence of witnesses, on a matter to which a collective agreement relates, and require that disclosure to be under oath or affirmation;
b) inspect and question a person about any record or document to which a collective agreement relates;
c) copy any record or document referred to in paragraph (b) or remove these records or document to make copies or extracts;
d) require a person to produce or deliver to a place specified by the designated agent any record or document referred to in paragraph (b) for inspection;
e) inspect, question a person about, and if necessary, remove, an article, substance or machinery present at a place referred to in sub items (1) and (2);
f) question a person about any work performed; and
g) perform any other prescribed function necessary for monitoring or enforcing compliance with a collective agreement.
A designated agent may be accompanied by an interpreter and any other person reasonably required to assist in conducting an inspection, e.g. a member of the South African Police Services.
Any person who is questioned by a designated agent must answer all questions lawfully put to that person truthfully and to the best of that person’s ability.
Every employer and/or employee must provide any facility and assistance at a workplace that is reasonably required by a designated agent to effectively perform the designated agent’s function.
The bargaining council may apply to the Labour Court for an appropriate order against any person who-
a) refuses or fails to answer all questions lawfully put to that person truthfully and to the best of that person’s ability;
b) refuses or fails to comply with any requirement of the designated agent in terms of this item; or
c) hinders the designated agent in the performance of the agent’s functions in terms of this item.
If any roleplayer fails to comply with the Collective Agreement in full, the Council may secure compliance by way of a process referred to commonly as the dispute resolution process.
In terms of this process any failure to comply with the Industry’s Collective Agreement is resolved in the following sequence:
The nature of the dispute will determine which
steps will be used.
The most important fact about our Bargaining Council is that all Council staff members are neutral, independent and objective in the execution of their duties.
Please feel free to contact any of the Designated Agents for further information at our offices at Johannesburg (011)242-9200, Pretoria (012)323-2700 and Bloemfontein (051)447-1807.
WA JANSE VAN RENSBURG