# Interest group forums > Electrical Contracting Industry Forum >  Bargaining council

## Dave A

I'm pretty interested in the way we are being bludgoened into joining the Electrical Bargaining Council.

The Labour Relations Act states that if over 50% of an industry is registered with its bargaining council, agreements of the bargaining council are binding on unregistered participants in the industry.

This implies that membership of the bargaining council is voluntary, ie a choice by the company.

However, we are being told that if we have employees we *have* to register with the bargaining council???

By my understanding, being registered means we are entitled to have input into bargaining council decisions. But the real question here is why would a small electrical company *want* to be registered?

Big companies I can understand, but small companies - what are the benefits?

And is all this talk of "must register" actually legitimate?

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## Nicky

Hi Dave,

So what have they done to annoy you?!!!  (or should I say what haven't they done!)

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## Dave A

Hi Nicky and welcome.

Well for a start, when I asked them for information about the bargaining council, the anwer was: "You fill in our forms and we send you a bill. That's all you need to know". Not quite the level of detail I was looking for.

So now rather irritated by the attitude I started some research. Not easy given the remarkable lack of info published.

Essentially, a number of provisions and principles of the Labour Relations Act have been contravened, including failing to publish agreements as required. Some of the decisions around pension funding have been a bit dodge too.

Ultimately, I fail to see why small contractors support the bargaining council - in theory we are being herded together so that labour only has to negotiate once - very useful for labour representatives. And this story that we *have* to register....

And then there all the petty little aspects of the agreements.... KISS it is not.

Oh. I could go on and on but it's the weekend - time to relax  :Slayer:

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## Nicky

I share your frustrations with the Bargaining Council.  It seems everyone is going along with being told they *have* to join instead of standing up to them and saying *NO* or asking questions.  What about the employees who don't want to contribute but have to?   The representative who came to see me and insist that I join basically admitted that the BC was in a bit of a "mess" at the time and he was assisting in "sorting" it out.  Very reassuring for someone being forced to contribute.  

I would be very interested in hearing what else you have discovered Dave so when the week-end is over do tell?  

Are there other members who feel strongly about this?  

I recently read an article about a business owner who simply had to close his doors as he could not afford to adhere to the BC rules.  

I am both amused and irritated to see that they simply "bill" or "invoice" you even though it is not accurate or correct.  How much extra work are they creating (and are they on top of things) when many companies' payrolls for the electrical industry vary from month to month? And then once you have submitted the actual return and payment they do not issue you with a correct, accurate invoice!  So what's the point of issuing incorrect invoices?

Employment contracts according to the Bargaining Council also annoy the hell out of me... but that's another story!

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## murdock

i was told i had to join so like all the other sheep i too joined got the estimate but found levies for both myself and my employees for the ECA wich i had just paid over R1000 to join  so i contacted them and requested an explanation...they first told me i had to just pay then i got a letter stating that i had to now pay penalities and interest so i told them to de-register my company i then got a letter with reduced amounts...i am still not sure what to do i dont have money to waste on legal fees and i dont know if i have to ay these so called levies which they cant explain why i have to pay...i am told they are admin cost just pay or suffer the penalties wich will add up if i dont.

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## Dave A

The non-unionised employee levy to go to the unions is particularly interesting. Perhaps that is the bit they dropped when you questioned it?

Pretty much every electrical contractor I've spoken to is grossly unhappy about the bargaining council. I just don't understand why it's still there as it seems it is the sign-on from employers that is giving the 50%+ needed to keep it in place. Organised labour don't seem to have enough union members on board to carry the day.

When I get a decent gap, I think I'm going to work on dissecting the LRA here, particularly the section on bargaining councils.

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## Vincent

Recently I was at a SACCI (formerly SACOB) SME meeting and around the table were a few bargaining council representatives. At the end of the meeting a labour broker did a short presentation on bargaining councils.  The people around the table, bar the BC representatives, all agreed that BC provide no benefit to SMEs except adding to their costs. I casually suggested that BCs should be dissolved and let the LRA and BCEA guide businesses and allow an old system that was formed in the 1940s to 'die.' You can imagine their response!

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## Dave A

This was the bargaining council representatives who had an adverse reaction?

Let's think about this - We propose to shut down your bargaining council operation which is providing you with a rather comfortable livelihood. Their reaction "Yes please - bring it on."

I don't think so.

Never mind that bargaining councils have been closing businesses (quite literally) for years.

But it goes beyond the bargaining council staff. There is a whole financial mini eco-system there. Which ordinarily I wouldn't have much problem with if it was adding value at least commensurate with its cost.

One of my little mantras when things look messy and obscure - If you want to figure out what is really going on and why, follow the money.

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## Ryss

Sounds like the EBC has a few admin issues they need to resolve. Having been involved in the Textile Industry BC I can share some light on the general trends.

Unions are very pro the idea as it means that they can get away with much fewer skilled negotiators. In fact they only need one instead of hundreds, each negotiating at plant level.

From an employers point of view, wages increases are generally lower with centralized bargaining as the increase tends to be deflated by pressure from employers who can not afford increases.

In the textile industry one had some major players as well as some sections of the industry that where made up of small employers. So maybe fairly similar to the electrical industry. 

Either way employer associations should represent the interest of of each segment of the industry and fight for the interests  of the employers it represents. (Electrical Contractors Employers Assoc or such like) The Employer Associations that are party to the agreement will be listed as such in the published agreements.

With proper representation on the bargaining council, made up of employer and Union representatives, the problems of BC admin can be fixed or the administrator can be fired if he is not doing his job properly, which is in the interests of both the Union and the Employers.

So compare this situation with the possibility of an active Union Organiser hounding each employer separately. I would take the BC costs anyday in preference to that, but then it must be run efficiently.

Another advantage is that the BC should settle disputes within the industry. If this is done properly, it is maybe better than having to go to the CCMA.

Hope this is of some help.

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Dave A (30-Jul-09)

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## Dave A

So large employers win. And small businesses get gently shafted. I don't believe for a moment that the agreement is set at the level of the weakest link.

Also, consider for a moment if the vast bulk of the industry is made up of small businesses. It is not economically viable for union negotiators to hound small businesses with small staff complements. The negotiator costs will exceed the union fee income.

When it comes to comparing electrical contracting and the textile industry, a really small textile concern would be a giant in the electrical contracting industry.

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## Amber_jo

Dave, what became of this thread? Did you get anywhere?

I would truly appreciate feedback as the electrical bargaining council has now decided to come and do a spot check on our company. We are a small family run aircon company with 12 employees. We have suffered from severe, severe fraud/theft this year and have had to retrench 2 employees due to these losses.

Now the EBC has threatened us with" If you dont deduct the fees from your employees, we will close your company". I thought these people are meant to be fighting for our employees rights? But they are so quick to take away our employees jobs? Its ridiculous. 

We, as the employer, do not mind at all paying our half of the prescribed fees. If you have employees these fees are to be incurred. 
*BUT* - our employees do not wish to belong to this council!! They cannot afford to pay over money to a pension/provident fund. I know I would go ballistic if someone told me I must now pay a percentage of my wages over to a pension fund. Im 23. I need to use *every last cent* of my paycheck in order to *survive*. The government has declared the country is in a recession. Times are hard. Not many people can afford to save anymore. And now they are literally forcing them. So maybe they wont have enough food this month or be able to afford enough nappies or doctors visits but yippy, they will have a provident fund. This is their money!!! And they are pleading with me to find a way not to deduct it. Everywhere I turn to, all I hear is I will have to find a labour law specialist. Our company cannot afford that right now. 


Please let me know if you found a loophole or got advice.
I dont know how to face our employees at the end of this wage month.
They dont understand. All they see is more money being deducted.
The turnover of unskilled workers in the aircon trade is high and most of the guys will never claim their funds.

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## murdock

they are going to expect you to increase their wages to cover it...this is what happened to me...and if you dont they go slow etc etc...thats why all i can say is thank goodness i down scaled (got rid of the lot) and went the technology route...rather than labour intensive...i now only have myself and 1labourer...no more labour hearings :Clap: 


i feel for you because you need staff to carry out services and installations.

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## Dave A

> We, as the employer, do not mind at all paying our half of the prescribed fees. If you have employees these fees are to be incurred.


Personally I'd rather be paying it to the employees who were part of making it to spend as they see fit.



> Times are hard. Not many people can afford to save anymore. And now they are literally forcing them. So maybe they wont have enough food this month or be able to afford enough nappies or doctors visits but yippy, they will have a provident fund. This is their money!!!


One of the core issues, obvioulsy. 



> Everywhere I turn to, all I hear is I will have to find a labour law specialist. Our company cannot afford that right now.


And there is also the possibility of losing the case...

I'll haul out the notes I made at the time and give some more details, but the gist as I recall is it's going to take some pretty concerted action to put an end to this. I originally started the thread to guage how much support there might be to effect some change on the issue.

I'd assumed interest was low by the lack of replies. But looking at the page views... I had no idea this thread was getting this much attention.

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## Dave A

Something I should have asked earlier:

Amber - as an *airconditioning* company, why are you being forced to join the electrical contractors bargaining council?

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## Gerald

I would like to appeal to all that have either posted in this forum or interested parties to unite and challenge the Bargaining Council. We intend to seek legal advice to institute a class action so that the costs can be shared across the parties with an end to getting a ruling that SME and ME do not have to register with the Bargaining Council.

Our company has been instructed to implement the wage increase, we appealed and submitted financial data and highlighted that there is a recession at the moment. Most of our staff currently are on rates that are above the new minimum wage determination. We also consulted with our staff and offered to halt retrenchments and short time if unanimous agreement was reached to freeze wages until the turn around comes. The Bargaining Council has heard our application and replied with a letter stating that we are unsuccessful as they deem that our financial position does not warrant this (they can always make an offer to the shareholders if they think they can profit out of our business) as we have not shown a profit since last year.

It is clearly evident that the only reason that the increases have been ordered is to continue the growth of annual revenue of the Bargaining Council, and that if not implemented they would not receive their own increases in earnings. They need a reality check as companies are closing down due to the current economic climate.

We donât accept that the Bargaining Council has achieved its 50% membership within the scope of the Labour relations Act.We also do not agree that the ECA can represent our company as we are not members.We intend to defend our actions in court and are in the process of seeking legal council.We want the Minister of Labour to table a newly revised amendment to the relevant Acts to enable smaller businesses to compete with the large organisations insofar as labour relations.

If the big electrical companies benefit from this type of closed negotiation then the law should make membership voluntary to the Bargaining Council. If the electrical workforce finds this in there favour then they will migrate to the larger companies and us smaller companies will be forced to pay higher rates to secure our part of the work force. Effort should rather be given to tighten the laws around who completes electrical work and the subsequent issuing of the COCs and the lack of issue by unscrupulous contractors.

Dave, I would appreciate very much if you could make any data available from your previous delving in this subject and your comment thereon.

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## Dave A

Hi Gerald,

Good on you, mate. I'll get to making a more structured post soon, but in the meantime:



> We don’t accept that the Bargaining Council has achieved its 50% membership within the scope of the Labour relations Act.


The relevant section of the LRA reads:



> 32. (3)	A collective agreement may not be extended in terms of subsection (2) unless the Minister is satisfied that- 
> 
> (b)	the majority of all the employees who, upon extension of the collective agreement, will fall within the scope of the agreement, are members of the trade unions that are parties to the bargaining council; 
> 
> (c)	the members of the employers' organisations that are parties to the bargaining council will, upon the extension of the collective agreement, be found to employ the majority of all the employees who fall within the scope of the collective agreement;


Now it is quite possible that the 50%+1 requirement is not met, either on the union or the employer side, or perhaps even both. But have you thought how to collect the hard evidence that will be needed to prove this?

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## murdock

one way would be to get the ECA to surrender information...problem is they also get their little cut from the bargaining council.

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## Dave A

I wouldn't rely on the ECA or the bargaining council to be particularly transparent with the numbers. You see, it's not just a breakdown of the numbers they've *got* - what you might have to look at is the numbers they *don't have* too.

It gets worse - even if you can prove that there are no longer sufficient numbers to justify extension of the collective agreement to non-parties, you still have to rely on the whim of the minister to have the extension withdrawn.



> 32. (5)	Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if â
> 
> (a)	the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and
> 
> (b)	the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectoral level or in the public service as a whole


Now given the fondness our Minister of Labour has for collective bargaining, I don't like the chances if we have to rely on his interpretation of the merits. Those chances might have improved slightly of late, though.

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## Dave A

Ultimately it is unified action that stands a reasonable chance of quick, relatively painless results. Individual action is going to be worn down with threats and BS just as it has been all along so far.

If we rely on the LRA as it currently stands, (admittedly anecdotal) evidence suggests that organised labour doesn't have the numbers it needs, but the ECA does. So it is the presence of the ECA that is keeping this alive. 

Hence the easiest way to see the demise of the extension to non-parties (and perhaps the collective agreement itself) is for:
the members of the ECA to pass a resolution instructing the ECA to withdraw as a party to collective bargaining and the collective agreement, orfor sufficient members of the ECA to resign from the ECA to severely reduce the ECA % representation of the industry.
I don't know about the prospects of a resolution. The top leadership certainly seems more pro the bargaining council than against it, even if I have yet to hear a convincing argument from any of them as to why it should be maintained. But I suspect the start of a mass resignation based on dissatisfaction with the bargaining council might nudge this in the right direction  :Wink: 

(If anyone would like to put down these supposed benefits to employers in writing, I'll be quite happy to put a counter view.)

Of course organised labour is likely to respond with industrial action, but apparently there was an organised labour strike during the negotiation process last year. I haven't met a person yet who particularly noticed. 

Maybe the companies with majority unionised staff need to stay in the system. But why the majority of companies should accept being dictated to like this is beyond me.

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## murdock

at least my visit to the bargaiining council today was a huge success for past fees and future payments

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## Dave A

> at least my visit to the bargaiining council today was a huge success for past fees and future payments


Have they decided they don't want you anymore?  :Big Grin:

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## murdock

i have to revise all my past payments and seperate electrical work my staff do from the power quality work i do...and days i didnt put staff on short time etc etc then deduct all the time from my payments made in the past...then keep a log book for future when they work doing electrical work and when we are doing other work which is not related to "electrical contracting"

look like i am in for a refund...best thing i did visiting them yestertday other wise i would have just kept on paying for things i dont have to  :Slap:

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## Dave A

:Cool: 

That's the irony in all this. The central agreement has become so complicated they start tripping themselves up with all the rules. Trouble is most people just roll over.

I'm waiting to see how my current scrap resolves before I post any details, but it's getting interesting.

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BBBEE_CompSpec (27-Oct-09)

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## Gerald

Well done Murdock, an old tactic before the smart bombs was to cut off supply to weaken the enemy before launching an attack.

That having been said in our company we do many facits of works and electrical only accounts for 60% of our revenue, the bargaining council gets a return on 100%.

Please keep us informed as to whether you actually get this right. Luckily we have just purchased software to run the service and installation side that can track each individual task and can group those tasks into catagories like, electrical, mechanical, civil.

I can't wait to tackle the BC on this.

Dave, we had actually joined the ECA last year so I re-routed my woes through them. I questioned the 50+% registration and the between the line reply was that this achieved through ECA membership alone (there is definately strength in numbers). I was asked to stand off till after the next council meeting where the ECA would appeal the council decision.

I'll keep the forum updated on new developments...

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## murdock

i resigned fro mthe eca and have since started saving even more money...because if you are a member of the eca the bargaining council take their portion on top of the bargaining councils...so at the end of the day the less people/organisations you belong to the less you get shafted.

just to let you know i was a member of the eca for more than 10 years...and to date as a small company have never gained anything from it other than a couple free drinks at the meetings...non of my claims for outstanding money were ever collected etc etc...

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## Alan

A thought crossed my mind. It is a known fact that Plumbers charge more than Electricians do and therefore have better margines. 
Why have i never heard from any of the plumbers that they have the same gripes??
Second question. Is there a Plumbers Association?

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## Dave A

I'm now very curious as to how Murdock and Gerald get on with this pro-rata business. Here's my current scrap, which I may as well post now because it's starting to go around in circles.

When you register with the bargaining council, you indicate the number of hours in your standard work week - in my case 8 hours per day, 5 day week - equals 40 hours per week.

Now you'd assume this is used in calculating their bill - wrong!

I've been trying to figure out why my pension fund deductions don't add up to what I'm being billed. It turns out the BC has been billing me based on a 44 hour week. So I send this email message:



> Having examined the returns, it seems these figures are based on a 44 hour working week. Could you please confirm that?
> This is an issue as our company works a 40 hour week and we have made all our calculations  to date accordingly i.r.o. pension contributions.


The response:



> All deductions are calculated on a 44 hour working week we cannot bill contractors on a 40 hour week.
> If need be you could recover the difference of the employee contributions from the employees we have 
> an acknowledgement letter which we could provide you with. ( in respect of the four hour diffrence)


So I ask for this acknowledgement letter and an explanation as to how this is covered in terms of the central agreement. No response. Just a summons to arbitration - eventually.

Arbitrator agrees I'm entitled to an explanation of this state of affairs and we agree to meet again to thrash this out later in the week. At the meeting it is agreed that I will be sent this letter and the pension fund agreement. No sign of the pension fund agreement yet, but I've been sent an Acknowledgement of Debt letter yesterday, out of which this little paragraph has relevance:



> The employer is therefore entitled to make deductions from the employees remuneration only for the employees portion which includes the Council levies (0.35% per week), pension fund (5.6% per week), and if applicable, sick pay fund levies (0.25% per week), party union subscriptions, and agency shop fees.


 :Cool:  That's what I've been doing - at least for the pension fund. I didn't know I could deduct 0.35% from my employees for Council levies. I'm sure they're going to love that news  :Roll Eyes (Sarcastic): 

Let's just run over the maths here so that everyone can follow.
Pension contribution is supposed to be 14%40% of contribution is for the employee.60% of contribution is for the employer.14% x 40% = 5.6% - the employee's contribution.14% x 60% = 8.4% - the employer's contribution.The employee is being paid (and deductions calculated) based on 40 hours per week).The employer is being billed by the BC at 14% based on 44 hours per week.This is 10% more hours than are actually being worked.Effectively the employer is being billed at 15.4% by the BC.This means the employer is actually paying 9.8%.
Or put another way - the employer is paying 10% too much based on the total pension bill, or 16.67% too much based on what the employer *should* be paying.

Essentially I'm being told their systems don't allow for billing according to my actual work hours, hence my curiosity about how Gerald and Murdock end up getting on.

My argument is their admin system handicap should not become my problem. Perhaps I'm headed for yet another round of arbitration.

I also can't help but wonder how many other electrical contractors are being overbilled like this.

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## murdock

dave you must ask them what the R48 levy they charge you because you are the director...i am yet to get reply...when i spoke to them about it they said it was a "standard fee" just because my company is registered with them that they had to charge me...it must be something like the sundries fee you pay when you have your car serviced...whether they use the rags or not is not important you just pay for it regardless...you dont like it take your car somewhere else...problem with the BG is you cant go somewhere else.

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## Dave A

Murdock, when I asked (my point - directors/partners don't fall under the BC) I got much the same answer - essentially it's a company registration fee.

Still haven't got the pension agreement yet, BTW.

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## murdock

> Murdock, when I asked (my point - directors/partners don't fall under the BC) I got much the same answer - essentially it's a company registration fee.
> 
> Still haven't got the pension agreement yet, BTW.


then why do you pau it every month? that was my question still no answer.

i operated as a pirate contractor for years and boy did i save money...my advise to anyone starting out stay out of the loop as long as you can...unfortunately as the company grows you have to register to otherwise the bigger companies will not give you work...but if you plan on staying small and just working in the domestic market or another way is to sub contract to bigger companies...you will save a lot of money.

it like a tv license if you buy one with your tv and dont pay it they will hunt you down and have the sheriff take other things even if you havent had a tv for the period they are nailing you for :Slap:  rather put the tv into someone elses name who already has one.

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## Dave A

I think all we need look for here is to be treated in accordance with the law (rather than according to some bad habits).

My previous round was about the leave pay clause - my argument was that non-parties received prejudicial treatment in terms of the rules. Accordingly the agreement cannot lawfully be extended to non-parties. It never even got to arbitration; I just got left alone for a while. But now I notice they have changed the central agreement so that the leave pay clause is no longer prejudicial to non-parties.

I've got to admit I'm feeling frustrated on two fronts - 
1. That no-one has ever challenged this sort of issue before, and
2. The ease with which they can overcome these challenges.

I feel like you can win battles, but ultimately you can't win the war.
At least not as an individual.

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BBBEE_CompSpec (27-Oct-09)

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## mazia

What is the sofware you are using?





> Well done Murdock, an old tactic before the smart bombs was to cut off supply to weaken the enemy before launching an attack.
> 
> That having been said in our company we do many facits of works and electrical only accounts for 60% of our revenue, the bargaining council gets a return on 100%.
> 
> Please keep us informed as to whether you actually get this right. Luckily we have just purchased software to run the service and installation side that can track each individual task and can group those tasks into catagories like, electrical, mechanical, civil.
> 
> I can't wait to tackle the BC on this.
> 
> Dave, we had actually joined the ECA last year so I re-routed my woes through them. I questioned the 50+% registration and the between the line reply was that this achieved through ECA membership alone (there is definately strength in numbers). I was asked to stand off till after the next council meeting where the ECA would appeal the council decision.
> ...

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BBBEE_CompSpec (27-Oct-09)

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## Gerald

Hi Mazia,

The software we are using is Pioneer Startech, their website is http://www.PioneerInteractive.com

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## sterne.law@gmail.com

Went and checked up - sorry guys, as at 30 July 2008 the Main agreement became binding on all parties. Sorry!!  Many are against this, and I suppose it is an argument that can rage on for ever.

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BBBEE_CompSpec (27-Oct-09)

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## BBBEE_CompSpec

I must admit here, I cannot agree with you more. The worst is that the Bargaining Council and Energy Seta cannot agree on anything. Not only are you being taken as a business but your appys and learners never know where they stand.

I recently fell foul between an Electrical company, The ESETA, The Electrical Bargaining Council and three learners. We have not solved the problem till today and that took place two years ago. And that was in the Eastern Cape. So I can deduce its the whole country. You will find in my latest book "The S M E Human Resources/Industrial Relations Toolkit" I will never promote the ESETA or Electrical Bargaining Council. I will cover every other aspect of Labour Law and its entities.

You have my condolences on this one. Sorry.

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## BBBEE_CompSpec

There is an Objection process regardless. You stand together and you can bring objection. The stronger your case the more you will gain.

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## BBBEE_CompSpec

The National Road Freight Industry Bargaining Council was brought in line with its stake holders by them objecting to their rules. What is wrong with you guys. Stand together. How do you think Vavi wins the war between the Employers and the Unions. You need similar tactics. Remember the Bargaining Councils were brought into being by The Department of Labour as were the Unions. Find a way to fight and win. I will gladly do the research for you guys. I have to research the books I write and they have been many.

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## murdock

because i am not always doing electrical work i decided to deregister...so now i find out they have changed the rules...to their benefit...if the employee works for even a short period of time in a week doing electrical work you now have to be registered...this is gona be interesting sitting working out the time worked in the electrical field and not.

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## murdock

something else which came up during the discussion was the fact that i use sub crontractors...if the subbies are not registered i become liable for outstanding levies...this could get really interesting.

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## BBBEE_CompSpec

You can overcome this problem very easily. You need to see me.

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## Trucker

> The National Road Freight Industry Bargaining Council was brought in line with its stake holders by them objecting to their rules. What is wrong with you guys. Stand together. How do you think Vavi wins the war between the Employers and the Unions. You need similar tactics. Remember the Bargaining Councils were brought into being by The Department of Labour as were the Unions. Find a way to fight and win. I will gladly do the research for you guys. I have to research the books I write and they have been many.


Would like to know what is the rules.  I am subcontractor in Transport and forced to join them, none of my 2 employees are members of any union why do I have to join and pay levies that I really cannot afford as it is. I am so tired that everybody wants money and you have to pay for services that you don`t really need.

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BBBEE_CompSpec (18-Nov-09)

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## BBBEE_CompSpec

I have had the privilege of removing many a small contractor from this Bargaining Council. If you need assistance I will gladly come through to Benoni and assist you.

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## murdock

the eca is collecting money throught them as well...so they seem to have the eca backing.

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BBBEE_CompSpec (18-Nov-09)

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## Dave A

Right on the money, Murdock!

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BBBEE_CompSpec (18-Nov-09)

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## Trucker

> I have had the privilege of removing many a small contractor from this Bargaining Council. If you need assistance I will gladly come through to Benoni and assist you.


Thanks I will contact you if they keep harassing me. Did`nt join them as yet.

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BBBEE_CompSpec (20-Nov-09)

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## BBBEE_CompSpec

You then need me to do the objection to prevent you getting in. Its better than having to fight your way out. Fighting your way out involves a decision by the Labour Court.

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## Gerald

Hi All,

It has been a long and exhaustive process but after having received a Compliance order for non-payment of annual increase earlier this year, we appealed to the Bargaining Council. We received a reply that the Council had rejected our appeal. We still did not implement the wage increases and were summoned to a hearing for an Appeals Ruling with an independent Commissioner. Our original appeal to the Bargaining Council was based on the following grounds;
1. All our employees were on rates in excess of the new minimum rates.
2. We were struggling to secure contracts for mid to late 2009.
3. We obtained signed letters from ALL staff that we had undergone due process and that there was a unanimous decision to forgo increases to save jobs and to cut the short time to a minimum.

As a member of the ECA I sought assistance from them. During discussion I mentioned that I would take the matter to court, if necessary, I was asked to stand down and be rational as the ECA would argue our appeal to the Bargaining Council (Yes I got the famous "don't worry" speech and swallowed hook line and sinker). The ECA failed to mention that they and the union are the only parties to the Council and when the appeal was overturned, we were summoned to a hearing. The ECA had waited till the 11th hour (2 working days) before they informed me that they could not attend as they would have a conflict of interest. I immediately asked for a postponement to seek legal advice and this was granted.

The Bargaining Council was in the hearing arguing for the order. I questioned the Bargaining Council's ability to prove a 50.1% membership and the reply was that this was achieved through the ECA. Further to this I learned that there are only 2 parties to the council, the ECA and SAEWA. I questioned what the process was if a decision was deadlocked as there are only 2 members, I still await an answer from the Bargaining Council; the Commissioner is also still waiting. The Bargaining council was questioned as to the process of the appeal and they stated that an appeal had never been won before. The Commissioner queried why the appeal process was even there in the 1st place.

The arguments from the Bargaining Council were weak to say the least, the Bargaining Council arguing that if the appeal was upheld it would create unfair competitive advantage, that the Union would be forced into mass action (I raised the point that none of our staff are Union members) and that the appeal would go against the gazette labour law.

We have been through the process and we have won the appeal  :Bananadance: . We agreed to pay the gazette increase from 1 November 2009.

It's now time to take this a step further. I noted in the hearing that over half of our workers perform functions other than electrical. We need to test this. We need to also take a stance against the ECA who do not represent the interests of small to medium sized contractors. It is us the electrical contractors who, after all, give them the claimed 50.1% that entitles them to be representitave to the collective bargaining agreement.

As per BBEEE CompSpec and my previous plea, we need to stand together and fight this, or we lay down and get steamrolled - we will allways have the short end of the stick.... :Boxing:

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BBBEE_CompSpec (20-Nov-09), Dave A (20-Nov-09)

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## Dave A

Thanks for this, Gerald.

My next post is turning into a long one and needs a bit of thought, but it's coming.

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BBBEE_CompSpec (20-Nov-09)

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## Alan

First off  :Applaud: 



> The ECA had waited till the 11th hour (2 working days) before they informed me that they could not attend as they would have a conflict of interest.


????.......This has got to make you think.

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BBBEE_CompSpec (20-Nov-09)

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## Dave A

Found this while doing a little research:  One bargaining council for the whole industry! by Chris Greager.

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## Alan

> It changes the Bargaining Council’s scope and jurisdiction.  With effect from 21 April 2009 the council’s area of jurisdiction now covers the whole of South Africa, excluding the magisterial district of Kimberley, within a radius of 20 km from the Kimberley Post Office


Why is Kimberly excluded??

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## 3ghr

> I have had the privilege of removing many a small contractor from this Bargaining Council. If you need assistance I will gladly come through to Benoni and assist you.


Hi, I would like to hear more about this, as we have been summoned to an Arbitration at the Bargaining Council re the fact that not all our 'ees are registered with them.

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## murdock

i had a meeting with one of the bargaining council team...we discussed the outstanding fee and the fact that my company is not only doing electricial work...i was told that when i fill out my return i had to indicate on the return what the percentage i had done electrical work and pay only that percentage...we also discussed the outstanding balance...which we came to an agreement on and i paid the agreed amount off in full...but ever month i still get warning letters and an account for the full outstanding balance plus the interest ...what now...do i get a lawyer?

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## wynn

3ghr read other posts about Shaun Higley who is bbbee comspec before you contact him

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## msmoorad

apologies if my post is going to derail the thread but you people seem as though you would be able to assist me with a little problem im trying to sort out.

a friend who lives down the road from me was injured at work on Sunady 13 August.
it was a rainy day and he fell from the 3rd storey of a building where he was doing the electrical installations.
his boss forced him to him work that Sunday despite it being raining & the workers are not provided with any safety equipment-safety harness, hard hats etc.
due to the rain, he slipped & fell.

now the real problem is that this guy does not have an ID book-he is apparently sharing the same ID number with another person and the Dept of Home Affairs has given him a letter in Feb stating that they are "dealing with the matter"

from what he told me, he does everything- DB's, 3 phase-all domestic & industrial installations etc- hes been working for this company (Trite Electrical & Cabling cc) for 3 yrs and 4 months.
his boss is exploiting him as he is afraid to speak out & cannot read & write well- he did not complete Std 7.
he gets paid R4000pm
and the most his overtime comes to is R900pm-thats from working 7 days a week from 7:30 until bet 8:00-9:00(ive seen the pay slip)
i know he does come home this late because his father in law also complains to me that his boss is overdoing it.


the boss owns 3 homes in one road- so i know he can easily afford to pay him more
plus, he told me that many times he collects the cash from the customer when they complete the job as per his bosses request.
most of the time its bet R5000-R20 00 per job!
theres only another senior employee(the bosses nephew) and 4 workers/labourers.

now , when he fell and fractured his wrist, he was taked to Mt Edgecombe Hospital (which is private).
he came home after 4 days.
his boss sent the driver at the end of the month with his salary-R4000
the next month-September, the boss says he is NOT going to pay him & he must claim from the Dept of Labour.

he has a very tattered n torn copy of his birth cert & the dept of Labour said they will accept a certified copy of it- provided it matches the ID number that his boss initially employed him under.
OK
so we get the boss to fill in all the forms & go back to the doctor who performed the op on his wrist (he has a steel plating now) who fills in another form & gives him a certificate saying he is NOT fit to work.
we gave this in to the boss who says he cant pay him for this- he must get his money from Dept of Labour but the boss desperately misses him as he does not have anyone else who can "run" a site for him.
the boss phoned him this past weekend & said he must come to work-even though he cant do anything- he must just supervise the staff & he will receive "something" for this.

im telling him that his boss is exploiting him even more- he is supposed to be getting 75% (R3000) per month, for the 1st 3 months and he should not have to go to work for it- if his boss wants him to come there and supervise-then he should give him something over and above  that amount(R3000)

another issue
he told me his boss showed him that his pension fund is at R180 000- is that possible?
for just 3yrs & 4months of employment?

this company (Trite Electrical) is a member of the bargaining council and we went to their offices in Mercury House, Smith Str, Durban last week.
the lady there said if he wishes to resign & claim his money from the pension fund- it will take upto a year before he gets his money- is that true? or is there some ulterior motive for them holding on to contributors money for as long as they can?

cos he has been telling me that he wants to leave and start his own little company.
he says the money from the pension fund can get him a decent van & some good tools
he is telling me this almost daily- that he wants to leave.

that he has the numbers of all the good workers that have worked for his boss & they are all ready to work for him if he calls them.
most of them worked for only a few months for the company as they were not happy with the wages they were earning.

what do you guys think?

please advise me with respect to all the things that need to be sorted out in this case.
thanks.

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## Dave A

Quite a few issues to cover there, ms. Let's deal with that pension fund balance with the bargaining council first.




> he told me his boss showed him that his pension fund is at R180 000- is that possible?
>  for just 3yrs & 4months of employment?


When he's getting paid R4000.00 per month? Not likely. 
Factoring in that this might be what he's getting as cash in hand - i.e. less deductions - his total pension funding *remuneration* might be R180 000.00 over that period. 

Assuming pension contributions between employer and employee totalling 15% of pension funding remuneration, pension fund contributions so far would total R27 000.00

Quite a few assumptions in there, so that figure of R27k should definitely be taken as a *very* rough estimate...

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msmoorad (12-Oct-11)

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## msmoorad

i also thought that its not possible.

anyways, he has gone back to work today- just to supervise the workers at a 2nd site and in return he will get "something".
he is scared that he will lose out on his holiday pay & bonus-therefore he went back.

although i feel sorry for him, im also a bit angry that he is allowing himself to be exploited.
i have drummed it into his head- that his boss is not doing him any favours.

cos the bosses wife likes to say "Ashley was doing nothing, sitting in the streets & Ricky(the boss) picked him up & gave him a job & made him into something...."
they try to make it seem as if they are doing him a favour instead of the obvious fact that they REALLY need him in order to be able to run 2 sites at a time.

ive heard direct from the bosses sons mouth that many guys have worked for them for the past few years but none last more than a few months.
the work is too hard, the hours long and the money is pathetic.

im not going to get too involved anymore-lets see what happens.

i only hope the mess with his ID is sorterd out soon.

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## Dave A

Out of idle curiosity, has a doctor issued a certificate saying he is fit for resumption of duties yet?

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## msmoorad

the doctor issued a cert saying he is NOT fit to work yet.
i went with him to the physio yesterday and he also says it will be a few weeks more before he gains any decent movement/strength in his wrist.
the physio said the fracture went into the joint and that COULD mean he will never regain full mobility of his left wrist.
i jokingly asked about any permanent disability claims & he said that since theres no loss of limb- he will only receive recompense for the period after the 1st 3 months that he is declared unfit for work by the doctor.

if he really does nothing at work & just supervises the workers as his boss said, im sure its Ok- but i hope the boss pays him over n above the R3000 he is supposed to pay for the 1st 3 months. 
otherwise, he is being exploited again.

i told him that he should ask for an increase-i even spoke to the bosses wife personally and told her that they should give him an increase.
she agreed & said they will review his salary- but this guy is adamant he wants to leave.
from what i see, for the amount & type of work he is doing, they should be paying him R6000 pm minimum-for Mon-Fri.
and if his stories about the amount of money his boss is making are true-they can very easily afford it.


the company has always been running 2 sites at once:
one with my friend in charge
the other with the bosses nephew
now, he is feeling the pinch as he can only run one site- unless he works himself (which he does not seem to want to do).

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Dave A (12-Oct-11)

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## Gerald

There seems to be a major issue that has been missed here. What is happening is illegal and should be stopped. We all know that the Bargaining council is only in the position they are in as a commercial venture. They do not care about workers, it is a revenue system. The Department of Labour is charged with the power to enforce the Law, and this is their mandate, and according to the posts above there seems to be a transgression of the Law that is applicable. If a staff member is injured, on duty, then it is the responsibility of the employer to report such an injury. From msmoorad's posts it is clear that there are a number of transgressions, including;

-  The terms of the collective agreement, with regard to working hours and payscales
-  Health and Safety law
-  Injury on Duty proceedure

What gets to me is that we run a legal and compliant business, and that has a cost associated to it. We cover that cost within our margins and profits and then have to quote and tender against unscrupulous companies that clearly do nat have the same cost structures that we do, and therefore we lose work. Chances are that if these companys do not comply on their HR than they wont comply to SANS10142.

I say that the company should be investigated, and the staff memeber in the posts should take his time off sick to go down to the Department of Labour office and make an official complaint.

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msmoorad (13-Oct-11)

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## msmoorad

i went to the dept of Labour with him & i explained the whole situation-they told my friend to open a case against his boss-then only can the dept intervene.
now, my friend is scared to do this as he says the boss can very easily NOT give him a bonus this year.

i asked about negligence-since there was no harness, safety helmets etc- they said the Bargaining Council is responsible for that-only if & when they issue a written notice saying they are handing over a case tothe Dept of Labour, can the dept intervene.

and it seems very unlikely cos when we went to the Bargaining Councils offie last week, the lady picked up the phone & contacted the bosses wife- from what i saw, they are on a first name basis-this makes me believe they wont do anything to jeopardise a contributing members company.

from what my friend says, the boss has 3 homes on one street-one of these homes is reserved for drinking & entertaining anyone who might be beneficial to him- this includes key people in big companies/projects who are in a position to award electrical work to any company-understand what im saying?

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## Dave A

Was waiting for someone to pick up on this aspect. 

I expect we all see something different in this aspect though. Some see injustice. Some see abuse of the worker. Some see contravention of laws which place the "good" employer at a competitive disadvantage to the unscrupulous.

I see this as yet more evidence that collective agreements don't really change things on the ground. It just increases the overhead.
It certainly doesn't make bad employers into good employers, or "level the playing field".

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## ericlowry

Hi Dave,
I agree, do these parasites have any proof that the electrical contractor must belong to this lot. I have never seen or heard from them except when they want your money.
E

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## Dave A

There's a period from 1st Jan 2012 to end September 2012 where if you're a non-party to the collective agreement (ie. the employer is not a member of the ECA and the employee is not a member of SAEWA), it would seem the bargaining council had no legal authority over you. Also see Status of the NBCEI where this was discussed.

However things have changed again. The Minister of Labour has seen fit to extend the collective agreement to non-parties and we're all once again required to chip in effectively from 1st October 2012. I'm astounded that the Minister finds the parties as sufficiently representative to do so, but to contest it is going to need answers / information I just don't have at the moment.

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AndyD (30-Oct-12)

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## ians

So you are saying i better register with them again but only have to back pay from the 1 october 2012?

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## Dave A

If they're not on your tail for any historical stuff prior to 31 December 2011, now might be a particularly good time to start with a clean slate, Ian  :Wink:

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## ians

I have a something in the pipe line which might require a few more staff members and i have a feeling i am gona have to sort my paper work to get the contract and with TB issue, it might just pay me to do the right thing. However, i am gona drag my feet as much as possible.

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## natal21

> I have had the privilege of removing many a small contractor from this Bargaining Council. If you need assistance I will gladly come through to Benoni and assist you.


 wondering if you would advise me i know this thread is old, but .... my father has just passed away and the business we both worked on has now fallen to me to run, it was a sole prop, and i am keeping the name and going sole prop as well, i personally do not want to join the bargaining council, but can't register wtih the ecb without it.

what do i do ?

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## mellowredwc

I also interested in how legal the Bargaining Councils are.  Three of my small business owner clients are being hit hard by these fees.  Is there any workaround?

One client who has seven full time employees could employ two additional entry level laborers with the money he has to pay to the BC each month.  IMO this is just another way of finding employment for some fat cat bureaucrats.

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## ACEsterhuizen

I have successfully appealed and defended my case against these daylight robbery based on the following exclusions:

They wanted me to "register" as a sole owner one man show, even went as far to send me "warning" letters, "hearings" blah blah fishpaste.

I already belong to Solidarity, my current workers union, and they (assisted) defended my rights based on these exclusions.

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