The essentials of collective bargaining in South Africa

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The essentials of collective bargaining in South Africa

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Collective Bargaining Support for trade unions
Collective bargaining is one of the most important jobs that a trade union must do on behalf of its members.
 
Before we dig in,  here’s an interesting fact about collective bargaining: The term ‘collective bargaining‘ is over a century old – 127 years to be exact. It was coined by Beatrice Webb, a British economist and labour historian who was anti-worker co-operatives. A worker co-op is a venture that’s owned and self-managed by its workers. Webb said they couldn’t be successful, but we now know that’s not entirely true.
 
So, how do we define collective bargaining?
 
Here’s the definition in Section 213 of The Labour Relations Act:
 
A collective agreement means 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 hand:
 
  • One or more employers
  • One or more registered employers organisation
  • One or more employers and one or more registered employers’ organisation
 

In other words, collective bargaining is the process through which a union tries to get an employer to formally agree and accept the workplace demands that workers put forward.

Collective bargaining can include wages, working conditions, union rights, maternity and paternity leave. Mainly it involves negotiations. But, mediation, arbitration, strike and lock-out actions can be part of the process.

 
A collective agreement binds parties for a stipulated period of time.
 
Let’s now focus on the process of negotiations that forms collective bargaining.
 
A union negotiates with an employer aiming to win the best terms for its members. Union organisers play an important role in negotiations. They’re full-time union workers who train and advise worker negotiators. Thus, organisers have more time, experience, and access to resources. Ideally, they share the resources and knowledge with shop stewards. There’s one thing to note about organisers, though. They don’t have voting rights during decision-making. And that’s because they aren’t elected by a particular constituency of workers.
 
Through negotiations, workers are able to win new rights in the workplace. Workers put forward their demands and management responds to their offer. The two parties then negotiate until they find a compromise that they both agree on.
 
Who’s got the controlling power?
 
There’s a power struggle behind the talking in negotiations. Workers put whatever pressure they can on management to agree to their demands. Meanwhile, management uses its tactics to try and get the workers to agree to their offer. Sometimes there’s an agreement, but often there isn’t. If there’s a dispute, the parties call on a third party to mediate or arbitrate. Sometimes one of the parties takes industrial action such as a strike or a lock-out.

 

LEVELS OF COLLECTIVE BARGAINING 

 
Different unions face different situations with their collective bargaining. Negotiations can take place at various levels:
 
Centralised bargaining level
 
This happens when many unions establish centralised bargaining forums. Centralised bargaining forums allow unions to negotiate with all employers in the sector or industry. The most common centralised bargaining forum is the bargaining council such as the Public Service Co-ordinating Bargaining Council (PSCBC) and the Private Security Industry Bargaining Council (PSIBC). Bargaining councils make and enforce collective agreements, solve labour disputes, establish various schemes and make proposals on labour policies and laws.
 
Company level
 
Negotiations can also happen at the company level. Shop stewards are elected and mandated from the different workplaces of a company. They would then form a negotiating team.
 
Plant level
 
This is when negotiations happen at a single workplace. But, negotiations at plant level can also happen at another level. For example, centralised bargaining at the national level could establish a framework of minimum standards which workers might seek to improve at a plant level.
 
Sectoral determination
 
Sectoral determinations are set by the minister of labour. They address differences in standards that happen due to sector-specific needs. Such needs may include setting minimum wages in vulnerable sectors and regulating the hours of work.
 

CO-ORDINATION

 
Regardless of the bargaining level, negotiations must be co-ordinated.
 
At plant level, each shop steward represents a different department or group of workers. Before the start of negotiations, shop stewards compile the demands of all workers into one set of common demands. Co-ordination at plant level can take place in shop steward committee meetings. Some demands should be co-ordinated with the advice of an organiser.
 
At company level, take into account the demands of all the different factories. Often one factory is in a weaker position than others, and this problem should be corrected in the company negotiations. Co-ordination could take place through a company shop steward council meeting, where all shop stewards from the different factories meet to discuss their problems and plan their demands and strategy.
 
The various workplaces that are represented at national bargaining council level differ. Some are small and some are big. Some are weak and some are well-organised. Some are in the major industrial areas and some are in rural areas. Consider all the differences when finalising the common set of demands for negotiations. Co-ordination for national negotiations can be done through national meetings where shop stewards from different regions and companies put forward their specific proposals and develop a national set of demands.
 

PREPARATION

 
To succeed at negotiations, workers need to be confident, well-organised and determined. Negotiations will only succeed if there’s been good preparation beforehand, and so:
 
Do your research
 
Shop stewards meet before the negotiations to discuss the motivations for the demands they’re making. This requires research, which will enable preparation of a strong bargaining case.
 
Determine who will present
 
The negotiating team should plan who’ll present the argument and the motivation for each demand. Let as many shop stewards take part so that they can learn and improve on their negotiating skills. The organiser should always attend to support the arguments presented by shop stewards.
 
Present a united front
 
The negotiating team must never disagree in the presence of the bosses. Rather call a caucus if you need to discuss or re-assess your strategy and case.
 
PLEASE NOTE: Management is almost always at an advantage in negotiations. Companies tend to have more resources and essential skills. And sometimes unions are ill-prepared for negotiations. Know what information you need, where to find it and how to use it. There’s no quick solution to developing this ability. It comes with years of practice and by looking for useful contacts and resources. Draw on the collective experiences of others working in the union
 

PRIORITIES

 
Determine which demands are the most important and urgent. The union can then unite, mobilise and campaign around the priorities.  Don’t present a long list of strong demands around major issues if the union is very weak. Your best bet is to first get more workers on board. Also, workers from a particular company or workplace might have a specific problem that needs to be brought into negotiations. Include those in the national set of common demands, please.
 

MANDATES

 
Elected worker leaders and union officials must represent the interests of members. That’s as per the tradition of democratic worker control that we’ve built in our trade unions. Every union must ensure representatives only present what the workers have determined.
 
A shop steward represents a constituency of workers. What that constituency is depends on the level of negotiations. Shop stewards collect demands from workers which are then drawn up in a single list of common demand. And workers must approve that list. The union can’t expect to win demands that don’t have the support of workers.
 

The negotiating team must tell workers the outcome of the negotiations. The team should keep workers up-to-date with the proceedings and also give assessment and recommendations.  But, negotiators can’t present a new mandate to the bosses without first discussing with the workers. Sometimes workers will give negotiators a fall-back position that they’ll accept if they can’t win their first demand. If negotiators agree to a new position at the bargaining table, they must call a caucus and consult the workers. The rule of thumb here is, don’t agree to anything that’s not approved by the people you represent.

 

Calling a caucus is a tactic that allows stopping negotiations at any point to allow you to think, get more information or to manage your emotions.

 

KEEPING ACCURATE RECORDS

 
You may need records if management later tries to deny that a certain agreement reached. One member of the negotiating team should take an accurate record of the proceedings.
 
Signed minutes or agreements are legally binding. Thus, it’s very important to read a document carefully before signing it. Every union will have set procedures for checking an agreement before it’s signed.
 
Every written document must be carefully dated, including any correspondence with the management before the negotiations. Keep the documentation safe because you’ll need a full record in case there’s a dispute.
 

REACHING AN AGREEMENT

 
It’s difficult to anticipate the agreement stage. That said, think how you might get movement and an agreement, and what to do if you reach a deadlock. Start mobilising and preparing your members or constituency before you start the negotiations. This will help workers to be involved and ready in case you reach a deadlock.
 
The agreement is the most important part of the negotiation process. Understand all the clauses in the agreement before signing.  Below are some essentials of a proper collective agreement:
 
  • the agreement is clear and in writing
  • the agreement must cover a fixed period
  • the date that the agreement comes into effect must be clearly stated
  • the agreement must be clear about who benefits
 
 

Remember union negotiators enter negotiations on behalf of workers. This means it’s their mandate that counts and not yours.

 

REACHING A DEADLOCK

 
If the teams hit a wall, then negotiators must go back to the workers and discuss what to do. Workers need to look at the possibility of declaring a dispute If things can’t be salvaged. In case of a dispute, investigate the legal courses of action. Look at your choices outside of the law, too.
 
Keep in mind what’s already agreed in the collective agreement while revisiting what the Labour Relations Act says about dispute procedures and industrial action. But, don’t delay taking a course of action. Even though there isn’t a time limit on cases going to the Conciliation Commission of Mediation and Arbitration (CCMA), workers may lose interest and confidence if a dispute is neglected.
 
Finally, look at what the Labour Relations Act says on collective bargaining, as well as model collective agreements that trade unions have negotiated for their members.
 
* This article is extracted from The TULEC Manual For Trade Union Organisers. TULEC (Trade Union Library and Education Centre) was an LRS project. 

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