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Labour Relations Act, 1995 (Act No. 66 of 1995)

Chapter III : Collective Bargaining

Part C : Bargaining Councils

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 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;
(dA) the bargaining council has in place an effective procedure to deal with applications by non-parties for exemptions from the provisions of the collective agreement and is able to decide an application for an exemption within 30 days;

[Paragraph (3)(dA) inserted by section 4(a) of Act No. 6 of 2014]

(e) provision is made in the collective agreement for an independent body to hear and decide, as soon as possible and not later than 30 days after the appeal is lodged, 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;

[Paragraph (3)(e) substituted by section 4(b) of Act No. 6 of 2014]

(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.

 

(3A) No representative, office-bearer or official of a trade union or employers' organisation party to the bargaining council may be a member of, or participate in the deliberations of, the appeal body established in terms of subsection (3)(e);

[Subsection (3A) inserted by section 4(c) of Act No. 6 of 2014]

 

(4) [Subsection (4) deleted by Section 2 of Act No. 127 of 1998]

 

(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;
(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;
(c) the Minister has published a notice in the Government Gazette stating that an application for an extension in terms of this subsection has been received, stating where a copy may be inspected or obtained, and inviting comment within a period of not less than 21 days from the date of publication of the notice; and

[Paragraph (5)(c) inserted by section 4(d) of Act No. 6 of 2014]

(d) the Minister has considered all comments received during the period referred to in paragraph (c).

[Paragraph (5)(d) inserted by section 4(d) of Act No. 6 of 2014]

 

(5A) When determining whether the parties to the bargaining council are sufficiently representative for the purposes of subsection (5)(a), the Minister may take into account the composition of the workforce in the sector, including the extent to which there are employees assigned to work by temporary employment services, employees employed on fixed term contracts, part-time employees or employees in other categories of non-standard employment.

[Subsection (5A) inserted by section 4(e) of Act No. 6 of 2014]

 

(6)
(a) After a notice has been published in terms of subsection (2), the Minister, at the request of the bargaining council, may publish a further notice in the Government Gazette
(i) extending the period specified in the earlier notice by a further period determined by the Minister; or
(ii) if the period specified in the earlier notice has expired, declaring a new date from which, and a further period during which, the provisions of the earlier notice will be effective.
(b) The provisions of subsections (3) and (5), read with the changes required by the context, apply in respect of the publication of any notice in terms of this subsection.

 

(7) The Minister, at the request of the bargaining council, must publish a notice in the Government Gazette cancelling all or part of any notice published in terms of subsection (2) or (6) from a date specified in the notice.

 

(8) Whenever any collective agreement in respect of which a notice has been published in terms of subsection (2) or (6) is amended, amplified or replaced by a new collective agreement, the provisions of this section apply to that new collective agreement.

 

(9) For the purposes of extending collective agreements concluded in the Public Service Co-ordinating Bargaining Council or any bargaining council contemplated in section 37(3) or (4)—
(a) any reference in this section to an employers' organisation must be read as a reference to the State as an employer; and
(b) subsections (3)(c), (e) and (f) and (4) of this section will not apply.

 

(10) If the parties to a collective agreement that has been extended in terms of this section terminate the agreement, they must notify the Minister in writing.

 

(11) A bargaining council that has a collective agreement extended in terms of this section must ensure that the independent appeal body is able to determine appeals within the period specified in subsection (3)(f).

[Subsection (11) inserted by section 4(f) of Act No. 6 of 2014]