Most collective agreements are entered into with the aim of regulating the terms and conditions of
employment of the employees who will be covered by them. These employees will, in the first place, be
the members of the trade union or unions that entered into the collective agreement. However, as was
pointed out in our previous article, collective agreements can be «extended» to employees who were
not members of the trade union or unions which entered into the agreement. see ss 23 and 32 of the
Labour Relations act, 66 of 1995 . Section 23 states that, «where applicable», a collective agreement
varies any contract of employment between an employer and an employee who are both bound by that
collective agreement. The words «where applicable» presumably refer to the situation where a
collective agreement contains provisions which are intended to create legal obligations between an
employer and its employees as well as provisions which are not intended to create such obligations. For
example, a collective agreement may regulate terms and conditions of employment as well as certain
organisational rights granted to the union which is party to the agreement. The latter rights are not
applicable to the relationship between employer and employee and will therefore not create binding
rights and obligations for the employer vis-a-vis its employees and will not be incorporated into
contracts of employment. If a collective agreement makes provision for 48 days’ sick leave in a sick leave
cycle and the contract of employment provides for 36 days, the entitlement found in the collective
agreement is incorporated into the contract of employment and this then takes precedence. Should the
employer fail to provide this improved sick leave the employer will not only breach the collective
agreement but it will also be in breach of the contract of employment as varied by the collective
agreement. But can the employer and an employee agree that an employee will be entitled to terms and
conditions of employment that are more favourable than those found in an applicable collective
agreement? This question can be illustrated by the following example. Employer A becomes bound by a
collective agreement that provides that certain types of skilled employees must receive a wage of R10
000.00 per month. However, Employer A is situated in a remote area and, in order to attract this type of
employee, it has already agreed to pay these employees a significantly higher wage. If this is the case,
the skilled employees’ contractual wage will be limited to R10 000.00 per month and all employees’
contractual entitlement to leave will be reduced to three weeks. It appears that the answer to this
potential problem should be determined by the intention of the parties to the collective agreement. If
the collective agreement only provides that certain employees are entitled to certain minimum wages
this will not affect Employer A’s right to pay the higher wage contained in the contracts of employment
of the skilled employees. If it was the intention of the parties to the collective agreement to reduce
leave to three weeks and not to provide for a minimum entitlement of three weeks’ leave, the collective
agreement will vary the contracts of employment of A’s employees to provide for this lesser period of
leave.
Section 18 envisages that the parties to a collective agreement can, in certain circumstances, establish
representivity thresholds for the granting of organisational rights. Sections 25 and 26 permit employers
and trade unions to enter into agency shop agreements and closed shop agreements, subject to the
requirements set out in these provisions.
employment of the employees who will be covered by them. These employees will, in the first place, be
the members of the trade union or unions that entered into the collective agreement. However, as was
pointed out in our previous article, collective agreements can be «extended» to employees who were
not members of the trade union or unions which entered into the agreement. see ss 23 and 32 of the
Labour Relations act, 66 of 1995 . Section 23 states that, «where applicable», a collective agreement
varies any contract of employment between an employer and an employee who are both bound by that
collective agreement. The words «where applicable» presumably refer to the situation where a
collective agreement contains provisions which are intended to create legal obligations between an
employer and its employees as well as provisions which are not intended to create such obligations. For
example, a collective agreement may regulate terms and conditions of employment as well as certain
organisational rights granted to the union which is party to the agreement. The latter rights are not
applicable to the relationship between employer and employee and will therefore not create binding
rights and obligations for the employer vis-a-vis its employees and will not be incorporated into
contracts of employment. If a collective agreement makes provision for 48 days’ sick leave in a sick leave
cycle and the contract of employment provides for 36 days, the entitlement found in the collective
agreement is incorporated into the contract of employment and this then takes precedence. Should the
employer fail to provide this improved sick leave the employer will not only breach the collective
agreement but it will also be in breach of the contract of employment as varied by the collective
agreement. But can the employer and an employee agree that an employee will be entitled to terms and
conditions of employment that are more favourable than those found in an applicable collective
agreement? This question can be illustrated by the following example. Employer A becomes bound by a
collective agreement that provides that certain types of skilled employees must receive a wage of R10
000.00 per month. However, Employer A is situated in a remote area and, in order to attract this type of
employee, it has already agreed to pay these employees a significantly higher wage. If this is the case,
the skilled employees’ contractual wage will be limited to R10 000.00 per month and all employees’
contractual entitlement to leave will be reduced to three weeks. It appears that the answer to this
potential problem should be determined by the intention of the parties to the collective agreement. If
the collective agreement only provides that certain employees are entitled to certain minimum wages
this will not affect Employer A’s right to pay the higher wage contained in the contracts of employment
of the skilled employees. If it was the intention of the parties to the collective agreement to reduce
leave to three weeks and not to provide for a minimum entitlement of three weeks’ leave, the collective
agreement will vary the contracts of employment of A’s employees to provide for this lesser period of
leave.
Section 18 envisages that the parties to a collective agreement can, in certain circumstances, establish
representivity thresholds for the granting of organisational rights. Sections 25 and 26 permit employers
and trade unions to enter into agency shop agreements and closed shop agreements, subject to the
requirements set out in these provisions.
