Collective Bargaining Agreements

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What is a Collective Bargaining Agreement (CBA)?

Collective Bargaining Agreements are written agreements concluded by a registered trade union and an employer or registered employers’ association on any labour matter. This therefore means an employer can not conclude a Collective Bargaining Agreement with a group of employees or an individual employee. 

The Collective Bargaining Agreement serves the purposes of improving employment and labour matters set under the law and the employment contract. The law provides minimum standards but these can be improved through a CBA. The ratification of Convention No 87 on Freedom of Association and the Protection of the Right to a great extent led to the inclusion of the whole of part VI on Collective Bargaining Agreements into our Employment and Labour Relations Act, 2004 and Employment and Labour Relations (Code of Good Practice) Rules, 2007.

Can I as an employer sign a CBA with two trade unions?

No! The trade union that represents the majority of the employees in an appropriate bargaining unit shall be recognised as the exclusive bargaining  agent and is the one entitled to sign a CBA with the employer to represent the employee in that bargaining unit.

What are the matters that can be negotiated and included in a CBA?

Section 68 of the Employment and Labour Relations Act, 2004 provides that “any labour matter” can be brought up for negotiation, while Section 4 of the Act defines a labour matter as “any matter relating to employment or labour relations”. Rule 55 spells out bargaining matters to include:

  • Wages
  • Terms and conditions of employment and allowances
  • Matters related to policy and practices such as: Recruitment, appointment, transfer and suspension
  • Health issues/benefits
  • Training, discipline, and termination of employment
  • Matters related to relationships such as: Organisational rights, negotiation and dispute procedures
  • Grievance procedures and any other matter agreed by parties.

Terms and conditions of service which are negotiated are over and above the terms and conditions of employment in individual employment contracts. Some of the matters listed above may also be in policy documents such as staff manuals and collective bargaining attempts to improve on them.

Does a CBA bind an employee who is not a member of the trade union?

Yes. As long as you belong to the bargaining unit which is being represented in a Collective Bargaining Agreement then you will be bound to its terms as long as the trade union is recognised as the exclusive bargaining agent of those employees.

Further to this a recognised trade union (trade union with majority members) may conclude a collective agreement providing for an agency shop. An agency shop is a security arrangement in terms of which employees in a bargaining unit who are not members of the recognised trade union are required to pay an agency fee to the trade union. This requirement is for getting the employees in the bargaining unit (though they are not members of the trade union) to contribute because they always benefit from what the trade union does for the bargaining unit. The amount to be paid will be negotiated between recognised trade union and employer, but it shall not be more than the fees that official members of the trade union pay. This money is mainly used for advancing or defending the socio-economic interest of the employees in that workplace.

The trade union has approached me requesting to conclude a CBA. What are the legal procedures to follow?

The trade union has to first acquire a majority of the employees; after getting the majority they must via a prescribed form notify the employer or employers’ association that they seek recognition as the exclusive bargaining agent within an appropriate bargaining unit.

Within 30 days of receipt of the notice you are then required to meet with the trade union representative to conclude a recognition agreement recognising the trade union. After concluding a recognition agreement then any party to it can initiate a proposal to negotiate for a Collective Bargaining Agreement.

Can I refuse to conclude a CBA? 

The Employment and Labour Relations Act, 2004 provides that when there is no agreement or the employer fails to meet with the trade union within the provided thirty days, the union may refer the dispute to the Commission for Mediation and Arbitration. If mediation fails any of the party may refer the dispute to the Labour Court for a decision. 

Where do we refer the dispute concerning a Collective Bargaining Agreement?

A dispute concerning the application, interpretation or implementation of a Collective Bargaining Agreement shall be referred to the Commission for Mediation and Arbitration. If the mediation fails, any party may refer the dispute to the Labour Court for a decision.

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