Section 213 of the Labour Relations Act defines a collective agreement as:
"A written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand, and, on the other, had a) one or more employers; b) one or more registered employers' organisations; or c) one or more employers and one or more registered employers' organisations "council" includes a bargaining council and a statutory council."
The issue of complying with collective agreements has put an administrative and economic strain on employers. Employers are finding it challenging to keep up to date with amendments to the collective agreement and the increases in contributions that must be made by them.
Designated Agents
Section 33 (1A) of the LRA stipulates that: A designated agent may –
"(a) Secure compliance with the council's collective agreements by – (i) publicising the contents of the agreements; (ii) conducting inspections; (iii) investigating complaints; or (iv) any other means the council may adopt; and (b) perform any other functions that are conferred or imposed on the agent by the council."
The above provision opens the door for agents to approach the employer's workplace premises and conduct the relevant investigations based on complaints or general monitoring of compliance. Although it may be an inconvenience, employers must keep in mind when dealing with agents that they are authorised by law to conduct investigations, and the information collected may be used against them.
Enforcement
Section 33A of the LRA stipulates that:
"(1) Despite any other provision in this Act, a bargaining council may monitor and enforce compliance with its collective agreements in terms of this section or a collective agreement concluded by the parties to the council."
On the front page of Arbitration notices, employers will come across section 33A, which is the provision that is relied upon to institute proceedings against parties who have failed to comply with the collective agreement. Employers must bear in mind that penalties and interest rates are tied to non-compliance with collective agreements, which can significantly impact the total amount due.
Applicability and Exemption
The collective agreement applies even in instances where the employer is not registered to a Bargaining council, as section 32 (1) of the LRA makes provision for the collective bargaining agreement to apply to non-parties.
Section 28(1)(k) of the LRA makes provision for a bargaining council to provide a procedure for exemption from collective agreements. This can assist employers who are not in a genuine financial position to comply with the collective agreement, a reprieve for a specified period if granted. In the event of uncertainty, employers should contact their labour consultancy or respective councils for further guidance because, at the end of the day, the agents are coming.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
