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Thread: Compulsory registration with bargaining councils.

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    Site Caretaker Dave A's Avatar
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    Compulsory registration with bargaining councils.

    I am currently researching and trying to get a clear understanding of registration with bargaining councils. In particular, I'm trying to get a clearer understanding around the concept of compulsory registration.

    Now to give some sort of background to this, where a bargaining council is successfully established to the extent that the collective agreement becomes binding on non-parties, it is common practice to write into the collective agreement that all employers and employees in that sector need to register with the bargaining council. My question is whether such a stipulation is actually lawful. Either in terms of the Labour Relations Act or perhaps even the Constitution.

    I'm going to argue this from an employer point of view, but essentially the principle remains the same from an employee point of view too.

    First, let's pull out some parts of legislation from the Labour Relations Act No. 66 of 1995, as amended by
    Labour Relations Amendment Act, No 42 of 1996
    Proclamation, No 66 of 1996
    Labour Relations Amendment Act, No 127 of 1998, and
    Labour Relations Amendment Act, No 12 of 2002

    Chapter II Deals with FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS and the part on Employers is as follows:

    6. Employers' right to freedom of association
    (1) Every employer has the right -

    (a) to participate in forming an employers' organisation or a federation of employers' organisations; and

    (b) to an employers' organisation, subject to its constitution.

    (2) Every member of an employers' organisation has the right, subject to the constitution of that employers' organisation-

    (a) to participate in its lawful activities;

    (b) to participate in the election of any of its office-bearers or officials; and

    (c) if-

    (i) a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office;

    (ii) a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.

    (3) Every member of an employers' organisation that is a member of a federation of employers' organisations has the right, subject to the constitution of that federation-

    (a) to participate in its lawful activities;

    (b) to participate in the election of any of its office-bearers or officials; and

    (c) if –

    (i) a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office; or

    (ii) a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.

    7. Protection of employers' rights

    (1) No person may discriminate against an employer for exercising any right conferred by this Act.

    (2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following-

    (a) require an employer-

    (i) not to be a member of an employers' organisation;

    (ii) not to become a member of an employers' organisation; or

    (iii) to give up membership of an employers' organisation;

    (b) prevent an employer from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or

    (c) prejudice an employer because of past, present or anticipated-

    (i) membership of an employers' organisation;

    (ii) participation in forming an employers' organisation or a federation of employers' organisations;

    (iii) participation in the lawful activities of an employers' organisation or a federation of employers' organisations;

    (iv) disclosure of information that the employer is lawfully entitled or required to give to another person;

    (v) exercise of any right conferred by this Act; or

    (vi) participation in any proceedings in terms of this Act.

    (3) No person may advantage, or promise to advantage, an employer in exchange for that employer not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.

    (4) A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 6, or this section, is invalid, unless the contractual provision is permitted by this Act.
    This raises the first question to clarify:

    The Labour Relations Act clearly gives power to and protects the right to membership of an employers' organisation. In so doing, does it not also recognise the right not to associate with an employers' organisation?
    Freedom of Association is a Constitutional Right which empowers us with choice in this matter, surely.

    (End part 1)
    The trouble with opportunity is it normally comes dressed up as work.

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    Site Caretaker Dave A's Avatar
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    Binding nature of collective agreement.

    First, let's deal with the binding nature of a collective agreement.

    31. Binding nature of collective agreement concluded in bargaining council

    Subject to the provisions of section 32 and the constitution of the bargaining council, a collective agreement concluded in a bargaining council binds –
    (a) the parties to the bargaining council who are also parties to the collective agreement;

    (b) 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

    (c) 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-

    (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.
    Note carefully section 31 (c) in its entirety.
    Is a provision for compulsory registration with the bargaining council lawful in terms of this section?
    Of course all of this is subject to Section 32, but we'll explore that one next.
    Last edited by Dave A; 17-Apr-07 at 05:52 PM.
    The trouble with opportunity is it normally comes dressed up as work.

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    Site Caretaker Dave A's Avatar
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    Extension of collective agreement to non-parties.

    If you are not a member of an employer organisation, this is where the rubber really starts to hit the road.
    32. Extension of collective agreement concluded in bargaining council

    (1) A bargaining council may ask the Minister in writing to extend a collective agreement concluded in the bargaining council to any non-parties to the collective agreement that are within its registered scope and are identified in the request, if at a meeting of the bargaining council -

    (a) one or more registered trade unions whose members constitute the majority of the members of the trade unions 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.

    (2) Within 60 days of receiving the request, the Minister must extend the collective agreement, as requested, by publishing a notice in the Government Gazette declaring that, from a specified date and for a specified period, the collective agreement will be binding on the non-parties specified in the notice.

    (3) A collective agreement may not be extended in terms of subsection (2) unless the Minister is satisfied that-

    (a) the decision by the bargaining council to request the extension of the collective agreement complies with the provisions of subsection (1);

    (b) 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;

    (c) 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;

    (d) the non-parties specified in the request fall within the bargaining council's registered scope;

    (e) provision is made in the collective agreement for an independent body to hear and decide, as soon as possible, any appeal brought against -
    (i) the bargaining council’s refusal of a non-party’s application for exemption from the provisions of the collective agreement;

    (ii) the withdrawal of such an exemption by the bargaining council;

    (f) the collective agreement contains criteria that must be applied by the independent body when it considers an appeal, and that those criteria are fair and promote the primary objects of this Act; and

    (g) the terms of the collective agreement do not discriminate against non-parties.

    (4) (Deleted)

    (5) Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if –

    (a) the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and

    (b) the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectoral level or in the public service as a whole.
    My comment on this is that the cop-out presented by section 32. (5) is exceptionally vague and subject to interpretation - and possibly undermines the principles of democracy and the need for, at the very least, a simple majority. Effectively, this opens the door for minority representation to dictate to the majority.
    The trouble with opportunity is it normally comes dressed up as work.

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    Question

    As a small metalwork business that employs three people and work as a subcontractor to builders, do we have to be registered ourselves with The Bargaining Council by law?

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    Diamond Member Justloadit's Avatar
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    Yes
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    The Bargaining Council.

    Can someone please show me in writing which part of the South Africa Law where it says you have to be registered as a small business with 3 employees with the Building Industry Bargaining Council. The Building Industry Bargaining Council own website just says, ''there are benefits and it is the right thing to do", it doesn't actually say it's law to register with this Union. The Building Industry Bargaining Council own website does not state it actual law to be registered with them.

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    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by Yanni View Post
    Can someone please show me in writing which part of the South Africa Law where it says you have to be registered as a small business with 3 employees with the Building Industry Bargaining Council.
    The BIBC collective agreement extension.

    Founder of Evergrow - Helping South African business owners grow their business without the growing pains

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    Dave A (13-Sep-17)

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    Diamond Member Justloadit's Avatar
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    I would contact NEASA, to see if they have any knowledge on BIBC.
    They have taken the minister to court with respect to the metals industry to oppose agreements between SIEFSA and NUMSA.
    Victor - Knowledge is a blessing or a curse, your current circumstances make you decide!
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    Looking for Clarification

    Quote Originally Posted by Greig Whitton View Post
    Can't see anywhere it says a small subcontractor with a very few employees have to be registered with the BIBC. The BIBC know we are not registered with them, they could of reported us to the labour court or necessary authorities if it is really law for a sub contractor with less the 5 employees who is in manufacturing to be registered with the BIBC.

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    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by Yanni View Post
    Can't see anywhere it says a small subcontractor with a very few employees have to be registered with the BIBC.
    It says it right there on the first page: the collective agreement binds "other employers and employees" in the industry. The size of the employer is irrelevant. The number of employees is irrelevant. If you operate in the industry and you employ anyone, you're bound by the agreement.

    Founder of Evergrow - Helping South African business owners grow their business without the growing pains

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