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Prof Darcy du Toit has commented on this case in his Weekly Comment: Sectoral bargaining and plant-level strikes published by LexisNexis online in IR Network [subscription required]
“Levels of bargaining” have been a contentious issue since the days of the Industrial Court. The current LRA tried to resolve it by promoting sectoral bargaining. However, the tradition of “two-tier” bargaining has not completely died out. At the same time employers tend to be reluctant to bargain at two levels. Many see it as a ‘second bite at the cherry’ (seeking to win at workplace level that could not be won at sectoral level). The judgment of the Labour Appeal Court in CSS Tactical (Pty) Ltd v Security Officers Civil Rights and Allied Workers Union (SOCRAWU) & others (Case no: JA 69/14, 24 June 2015) illustrates some of the dynamics that arise in a dispute of this nature.
The facts were somewhat unusual in that the private security sector (where the appellant company operates) has no bargaining council but is covered by a sectoral determination issued by the Minister of Labour. The sectoral determination, however, is informed by a sectoral collective agreement (“Memorandum of Agreement”) that is periodically negotiated between trade unions and employers’ organisations in a non-statutory Negotiating Forum and submitted to the Minister for consideration. This Memorandum, in turn, is negotiated in terms of a Negotiating Framework Agreement which lays down the rules governing the process. To the extent that the Minister includes the terms and conditions of the Memorandum in the sectoral determination, they are effectively extended to all employers and employees in the sector.
. . . .
Certain bargaining council agreements are more explicit, or go further, in curtailing plant-level bargaining – for example, by stipulating that all collective bargaining on matters of mutual interest shall take place at the sectoral level. The effect is that, if issues are not dealt with at this level, unions at plant level will not get even a first bite at the cherry.
Internationally, on the other hand, there has been a trend towards decentralised forms of bargaining (in some countries by means of works councils). This is partly explained by the growing complexity of production in recent decades, making it more difficult to regulate conditions in diverse workplaces by means of “one-size-fits-all” centralised agreements.
The LRA’s focus on sectoral bargaining, and the general weakness of bargaining structures at workplace level, should not distract us from the importance of developing those structures – and adjusting sectoral agreements – to enable those in the workplace to regulate what they know best. This should not be at the cost of sectoral or national minimum standards, but could make for greater efficiency. And it is quite unrelated to any question of a ‘second bite at the cherry’.