# Regulatory Compliance Category > General Regulatory Compliance Forum >  Compulsory registration with bargaining councils.

## Dave A

I am currently researching and trying to get a clear understanding of registration with bargaining councils. In particular, I'm trying to get a clearer understanding around the concept of compulsory registration.

Now to give some sort of background to this, where a bargaining council is successfully established to the extent that the collective agreement becomes binding on non-parties, it is common practice to write into the collective agreement that *all* employers and employees in that sector need to register with the bargaining council. My question is whether such a stipulation is actually lawful. Either in terms of the Labour Relations Act or perhaps even the Constitution.

I'm going to argue this from an employer point of view, but essentially the principle remains the same from an employee point of view too.

First, let's pull out some parts of legislation from the Labour Relations Act No. 66 of 1995, as amended by
Labour Relations Amendment Act, No 42 of 1996
Proclamation, No 66 of 1996
Labour Relations Amendment Act, No 127 of 1998, and
Labour Relations Amendment Act, No 12 of 2002

Chapter II Deals with *FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS* and the part on Employers is as follows:




> 6. *Employers' right to freedom of association*
> (1)	Every employer has the right -
> 
> (a)	to participate in forming an employers' organisation or a federation of employers' organisations; and
> 
> (b)	to an employers' organisation, subject to its constitution.
> (2)	Every member of an employers' organisation has the right, subject to the constitution of that employers' organisation- 
> 
> (a)	to participate in its lawful activities; 
> ...


This raises the first question to clarify:

The Labour Relations Act clearly gives power to and protects the right to membership of an employers' organisation. In so doing, does it not also recognise the right *not* to associate with an employers' organisation?
Freedom of Association is a Constitutional Right which empowers us with choice in this matter, surely.

(End part 1)

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## Dave A

First, let's deal with the binding nature of a collective agreement.




> 31.	*Binding nature of collective agreement concluded in bargaining council* 
> 
> Subject to the provisions of section 32 and the constitution of the bargaining council, a collective agreement concluded in a bargaining council binds Ã¢â¬â 
> (a)	the parties to the bargaining council who are also parties to the collective agreement;
> 
> (b)	each party to the collective agreement and the members of every other party to the collective agreement in so far as the provisions thereof apply to the relationship between such a party and the members of such other party; and
> 
> (c)	the members of a registered trade union that is a party to the collective agreement and the employers who are members of a registered employersÃ¢â¬â¢ organisation that is such a party, if the collective agreement regulates-
> 
> ...


Note carefully section 31 (c) in its entirety.
Is a provision for compulsory registration with the bargaining council lawful in terms of this section?
Of course all of this is subject to Section 32, but we'll explore that one next.

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## Dave A

If you are not a member of an employer organisation, this is where the rubber really starts to hit the road.



> 32.	*Extension of collective agreement concluded in bargaining council* 
> 
> (1)	A bargaining council may ask the Minister in writing to extend a collective agreement concluded in the bargaining council to any non-parties to the collective agreement that are within its registered scope and are identified in the request, if at a meeting of the bargaining council -
> 
> (a)	one or more registered trade unions whose members constitute the majority of the members of the trade unions that are party to the bargaining council vote in favour of the extension; and 
> 
> (b)	one or more registered employers' organisations, whose members employ the majority of the employees employed by the members of the employers' organisations that are party to the bargaining council, vote in favour of the extension.
> (2)	Within 60 days of receiving the request, the Minister must extend the collective agreement, as requested, by publishing a notice in the Government Gazette declaring that, from a specified date and for a specified period, the collective agreement will be binding on the non-parties specified in the notice.
> 
> ...


My comment on this is that the cop-out presented by section 32. (5) is exceptionally vague and subject to interpretation - and possibly undermines the principles of democracy and the need for, at the very least, a simple majority. Effectively, this opens the door for minority representation to dictate to the majority.

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## Yanni

As a small metalwork business that employs three people and work as a subcontractor to builders, do we have to be registered ourselves with The Bargaining Council by law?

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## Justloadit

Yes

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## Yanni

Can someone please show me in writing which  part of the South Africa Law where it says you have to be registered as a small business with 3 employees with the Building Industry Bargaining Council. The Building Industry Bargaining Council own website just says, ''there are benefits and it is the right thing to do", it doesn't actually say it's law to register with this Union.  The Building Industry Bargaining Council own website does not state it actual law to be registered with them.

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## Greig Whitton

> Can someone please show me in writing which  part of the South Africa Law where it says you have to be registered as a small business with 3 employees with the Building Industry Bargaining Council.


The BIBC collective agreement extension.

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Dave A (13-Sep-17)

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## Justloadit

I would contact NEASA, to see if they have any knowledge on BIBC. 
They have taken the minister to court with respect to the metals industry to oppose agreements between SIEFSA and NUMSA.

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## Yanni

> The BIBC collective agreement extension.


Can't see anywhere it says a small subcontractor with a very few employees have to be registered with the BIBC. The BIBC know we are not registered with them, they could of reported us to the labour court or necessary authorities if it is really law for a sub contractor with less the 5 employees who is in manufacturing to be registered with the BIBC.

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## Greig Whitton

> Can't see anywhere it says a small subcontractor with a very few employees have to be registered with the BIBC.


It says it right there on the first page: the collective agreement binds "other employers and employees" in the industry. The size of the employer is irrelevant. The number of employees is irrelevant. If you operate in the industry and you employ anyone, you're bound by the agreement.

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