Rule from beyond the grave
What is a collective agreement?
The collective agreement regulates the terms and conditions of employees in their workplace, their duties and the duties of the employer. It is usually the result of a process of collective bargaining between an employer (or a number of employers) and a trade union representing workers.
If a collective agreement makes a change to employment contracts, the change will still apply to you even if you are not a member of the trade union or staff association.
Things that might change include:
- Rates of pay
- Working times – for example, longer/shorter hours or different days
- Your duties and responsibilities
- The duties and responsibilities of your immediate boss
- The location of where you work
The aim of this is to cater for a situation where terms and conditions of the employment contract needs to be amended through collective bargaining. The original employment contract should be amended by the newly negotiated terms and conditions of employment (as in the collective bargaining agreement).
“Where applicable, a collective agreement varies any contract of employment between an employee and employer who are both bound by the collective agreement.”
If the agreed paid remuneration is R10 000 per month, but is later agreed that the employee salary will increase by 10%, the original employment contract will be amended to reflect the new annual salary of R11 000 per month as a result of section 23 of the LRA.
What if the collective bargaining agreement expires or is cancelled?
Does the employee’s salary revert to R10 000 per month again?
In terms of section 23(3) the right to the new salary, as contained in the collective bargaining agreement, changes the contract of employment. The employment agreement includes the employee’s remuneration of R11 000 per month as per the collective bargaining agreement.
The Labour Court in South African Municipal Workers Union City of Tshwane in 2014 considered whether shift systems, captured in a collective bargaining agreement, survived the cancellation of the agreement.
The court stated as follows:
- It is common that the terms of a collective agreement are not only binding on the individual employees but also by law are incorporated into the employee’s contract of employment.
- Even though the collective agreement lapsed in 2006, its provisions have been incorporated into the employment contracts of the individual members and should continue through the contracts lifespan.
- The terms and conditions remain even after the lapse of the collective agreement and will remain until another collective agreement has been established.
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