It is a common understanding that in the workplace, there exists an inherent, unequal and often unavoidable bargaining power relationship between employers and employees. The many permutations of the kinds of relationships and their challenges are not catered for in every instance, though the creation and working of trade unions have attempted to address some of these issues and to afford employees more bargaining power.
It is also trite that the domain of the workplace is largely catered for in legislation, for instance, s 1 of the Labour Relations Act says that one of its goals is to promote collective bargaining which is the process through which employers and the unions acting for employees reach or attempt to reach mutually accepted conclusions regarding employees. It is a unique process as it is reserved for the dispute of interests and is not right-seeking – it is the process through which the interests of employees are changed.
Collective bargaining is promoted through four organizing principles which are:
- Freedom of association – as seen in s 18 and s 23 of the Constitution of the Republic of South Africa, 1996 (the Constitution);
- Effective trade unions – as seen in s 12 to 16 of the Labour Relations Act referring to organizational rights of the trade unions themselves which are necessary to affect employees’ rights
- The right to strike – referred to in s 23 of the Constitution; and
- Outcomes of collective bargaining.
Though the above-mentioned has aimed to address issues of employees, the practical nature of the workplace remains an ongoing development. Once there is a relationship between the employer and trade union, there may be two agreements which will be brought into effect.
- Firstly, the procedural agreement is where both sides agree on how a certain event will be dealt with, for instance, the two sides may agree that in the case of retrenchment it will need to be regulated through a set and defined process in addition to legislative requirements; and
- Secondly, the substantive agreement is whereby the trade union will meet and discuss with the employer its concerns, demands (such as leave, bonuses, increases).
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