Collective Bargain

Question 1

What is Collective Bargaining? (Definition, Section, What it can act like, What does it do)

Answer 1

• When a group of people goes (collectively to) negotiate the terms and conditions of employment for employees with their employer.
• ERA - Section 2 - Negotiations of the terms and conditions of employment or to the subject matter of a procedure agreement.
• Joint regulation of work terms and conditions by mgt(employer)and workers’ representatives through T.Us.
• Promotes industrial relations within an enterprise by resolving various demands of various groups into a workable agreement, ensuring employers and employees receive fair compensation.

Question 2

What are Negotiating Rights?

Answer 2

The right(of TU) to participate in collective bargaining.

Question 3

What is a Collective Agreement?

Answer 3

Comes after Collective Bargaining.

An agreement related to the terms and conditions of employment, made between a recognised T.U of workers(or a joint negotiation panel) and an employer(or a group of employers)

(When bargaining, write everything down in it, as employer might forget)

Question 4

What is a Joint Negotiating Panel?

Answer 4

Representatives of 2 or more T.Us of workers with negotiation rights.

Question 5

What is a Bargaining Unit?

Answer 5

Workers(or classes of workers), whether or not employed by the same employer, on whose behalf a collective agreement may be made.

Question 6

What is Bargaining Agent?

Answer 6

Any T.U, or where there is a Joint Negotiating Panel, such JNP having negotiating rights to bargain collectively on behalf of the workers in a bargaining unit.

Question 7

What is a Procedure agreement?

Answer 7

An agreement where it relates to;

i. The establishment of a minimum service as specified in (ERA - Section 81).

ii. Negotiating rights.

iii. Machinery(Process or Structure & systems of an org) for negotiation concerning the terms and conditions of employment.

iv. Facilities for officers concerning TUs activities.

v. Procedures relating to disciplinary matters or grievances of individual workers.

(Like a manual for Employers & Employees - Need this to do Collective Agreement)

Question 8

What are the 3 Steps for Collective Bargaining?

Answer 8

1. Draft a Procedure Agreement.
2. Do the Collective Bargaining.
3. Draft the Collective Agreement.

Question 9

What are the Prerequisites/Preconditions/Requirements/Conditions/Necessities for CB? (3)

*Before C.B takes place.

Answer 9

• Freedom to associate.
• Registration of Trade Unions.
• Recognition of TU by employer

Question 10

Explain the Prerequisites/Preconditions/Requirements/Conditions/Necessities for Collective Bargaining.

Answer 10

• ERA - Section 29; Provides for the right of workers to freedom of association.
  Hence, workers are free to join TUs and bargain for their rights with employers, through CB.
• As we have seen, workers have the freedom to associate and bargain for their rights.
  However, to bargain, they need to form a TU and register the TU.
• Registration of TU is not sufficient. The TU must also obtain negotiating rights. Only then CB can effectively take place.

Question 11

What are the Criteria for recognition of a Trade Union of workers?
(1, =/<2, *)

Answer 11

Where there is only 1 TU.
A T.U can be recognized in an enterprise or industry if it has not less than 30% of the workers’ support in the bargaining unit, or as the sole bargaining agent if it has over 50%.

Where 2 or more TU are involved.
Two or more trade unions with 30% or more support but less than 50% of workers in an enterprise’s bargaining unit can be recognized as joint negotiating panels of the bargaining unit of the enterprise.

Employers may voluntarily recognize a T.U with the highest percentage of worker support in the bargaining unit of the enterprise.

Question 12

What does the Employment Relations Act(2008) do in terms of Collective Bargaining? (Highlight, List)

Answer 12

• It highlights the importance of Collective Bargaining in collectively managing Employment Terms and Conditions.
• It lists the different steps of the process, including recognizing T.Us bargaining agents to Negotiating and Registering Collective Agreements.

Question 13

How to apply for recognition of Negotiating Rights?

Answer 13

TU of workers may apply in writing to an employer for recognition as a bargaining agent(or as a joint negotiating panel or as a sole bargaining agent), for a bargaining unit.

The application must be accompanied by –
(a) a copy of the certificate of registration of each trade union;
(b) a copy of the agreement between/among the T.Us(in the case of a group of T.Us acting jointly)
(c) the number and category of members that each of the T.Us has in the bargaining unit.

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Employers must inform the T.U or group of T.Us within 30 days of application if they recognize them as a bargaining agent or refuse to recognize them, and provide reasons.

If an employer refuses to recognize a T.U, the T.U can apply for an order to the Tribunal to direct the employer to recognize the union.
The Tribunal will then have 30 days, to consider whether the TU has satisfied the criteria under the law.
When satisfied that they are representative, the Tribunal will give recognition to engage in(undertake) collective bargaining.

Question 14

What happens after the recognition of a T.U(s)?

Answer 14

Mgt and recognised T.Us shall facilitate and encourage personal contact and discussions between managers and officers of the T.Us at all appropriate levels.

Question 15

Revocation or Variation of Recognition(Made by, To who, Time, Requirement)

Answer 15

Application for revocation or variation of recognition may be made by;
(i) T.U or a group of T.s
(ii) an employer

Application - Shall be made to the Tribunal and shall be determined within 30 days.
Once the Tribunal has awarded recognition, no criteria for negotiation, or revocation, or variation of recognition within the same bargaining unit will be considered until 12 months have passed from the date of the order.

Question 16

How to draw up a Procedure Agreement? (Requirement, Tribunal)

Answer 16

Once a T.U has obtained recognition;
The T.U and employer have 30 days to Draw up + Sign a procedure agreement(To regulate their relations)

If a party fails to comply within a specified period, the other party can apply to the Employment Relations Tribunal for a procedure agreement.
The Tribunal will first try to mediate a settlement between the parties, then award the procedure agreement if no settlement is reached.

Note - ERT has 60 days to determine the matter and make an award. (A procedure agreement shall bind the parties to the agreement)

Question 17

Can a clause of the procedure agreement be varied(the parties agree to do something differently from the way they originally agreed)? (Ans, Opposite, Tribunal)

Answer 17

It may be varied by both parties.
If the other party does not agree to vary the agreement, they can refer the matter to the Employment Relations Tribunal.
The Employment Relations Tribunal will have 30 days to determine the matter and give its decision.
However, a party can only refer the matter to the Employment Relation Tribunal for variation within 12 months from the signing of the procedure agreement.

Question 18

A procedure agreement shall contain the following provisions inter alia(among other things):

Answer 18

I. The bargaining scope;

II. Levels at which bargaining shall take place;

III. Arrangements for the negotiation of terms and conditions of employment ;

IV. Circumstances and length of notice to be given by parties for renegotiation of terms and conditions

V. Dispute resolution procedures

VI. Consultation procedures in cases where reduction of workforce or the transfer of ownership of an enterprise or cessation of business is contemplated.

VII. Establishment of minimum service

VIII. Time off facilities

IX. Access to information + the workplace.

X. This list is not exhaustive. Parties may wish to include any provision relating to the specificity and nature of their work.

Question 19

Explain ‘Access to Workplace’. (Requirement, Need to give, Tribunal)

Answer 19

A T.U official from a recognized union must give advance notice and get approval before entering the employer’s premises.

Any T.U official from a recognized T.U must;
i. Give the reason for their visit.
ii. Show proof of his authority to represent the T.U before entering the workplace.
iii. Time??

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If a T.U is unreasonably denied entry to a workplace, they can apply to the Tribunal.
The Tribunal will decide within 30 days after receiving the applicant.

Question 20

Explain ‘Access to Information’. (Explain, No disclosure, Tribunal)

Answer 20

Both parties need to give all the necessary info for Collective Bargaining. Requests for info must be in writing, stating what is needed and a reasonable time frame for providing it.

Information should not be shared if:
(i) It’s against the law or a court order.
(ii) It could harm the company or a worker.
(iii) It’s personal and the worker doesn’t agree to share it.

Refusal to provide information; Application must be made to the Tribunal. After receiving the application, the Tribunal has 30 days to decide the case.

Question 21

Explain ‘Time off Facilities’.

Answer 21

Time off during T.U functions should be provided without loss of pay, based on the employment terms, and ensuring work operations run smoothly.

The best way to handle time off is by reaching an agreement that outlines the details like how long(Extent), how much(Duration), and under what conditions.

Question 22

The Bargaining procedure
(Explain, Notice, Time)

Answer 22

Before beginning negotiations for a Collective Agreement after signing a Procedure Agreement, a T.U or employer must give written notice to the other party.

The notice should;
- Be signed
- List all parties involved in the negotiations, including the bargaining unit
- Provide a summary of the topics to be discussed.

Parties need to start negotiations within 30 days after receiving a notice. If they don’t(Fail), the other party can apply the Employment Relations Tribunal to order negotiations to begin.

Question 23

Collective Agreements
(Section, Result)

Answer 23

ERA - Section 2 - C.A; An agreement related to the terms and conditions of employment, made between a recognised T.U of workers(or a joint negotiation panel) and an employer(or a group of employers)

Thus, Collective Agreement is the result of Collective Bargaining.
After the bargaining process, parties will create and sign a collective agreement, covering all issues discussed and agreed upon.

Question 24

The application of Collective Agreement? (Bind + Adhere, Clause)

Answer 24

A collective agreement is binding on;
The parties(the employer and T.U representatives) + All workers within the bargaining unit to which it applies.

The collective agreement’s terms will become the terms & conditions of the workers’ employment contract, and employers must adhere to these provisions.

There will be a clause about the agreement’s validity in the collective agreement.
However, before the agreement expires, it must be renewed through negotiations.

Question 25

Scope of Collective Agreement.( + Examples)

Answer 25

A collective agreement will be void if it contains any illegal provision. Its clauses cannot go against employment laws.
For example, the agreement can’t have a clause where it states that the employees will not be entitled to any leaves.

Question 26

Variation of Collective Agreement (Explanation, Example, Process if refuse)

Answer 26

A collective agreement, like any contract, can be varied or modified with mutual consent from both parties and is typically varied based on unforeseen circumstances.

The collective agreement should include, for instance, the situation where, at the time the agreement was drafted(created), no overtime was being performed by employees, but after a year, overtime becomes necessary.

If a party in a collective agreement refuses to change it, the other party can apply to the Tribunal for a variation of the agreement.
The Tribunal will then hear both parties and if it determines that a variation is justified, it may change the terms of the agreement.

Question 27

Registration of collective agreement

Answer 27

The parties must register their collective agreement with the Tribunal and the Ministry of Employment within 30 days of signing it.