Collective Agreements

A collective agreement is presumed not to have been intended to be a legally enforceable contract. However, if the agreement is in writing and contains a provision, however expressed, that it is intended to be legally binding, then it is so enforceable.

If parts are intended to be legally enforceable, then the parts are presumed to be intended to be enforceable, and the remainder is presumed not to be enforceable.

Notwithstanding the above, the terms of a collective agreement which prohibit or restrict the rights of employees to engage in a strike or industrial action or have the effect of prohibiting or restricting that right shall not form part of a contract between an employer and an employee unless the collective agreement

• is in writing, contains a provision expressly stating that those terms shall or may be incorporated in the contract;
• is reasonably accessible at his place of employment to the employee and is available for him to consult during working hours; and
• is one where each trade union that is a party to the agreement is an independent trade union; and then lastly, the contract with the worker expressly or impliedly incorporates those terms.

Terms of a contract for the supply of goods or services are void insofar as it requires the whole or part of the work to be done for the purpose of the contract only by persons who are not members of trade unions or particular trade unions or requires the whole or some of the work to be done only by persons who are members of trade unions or a particular trade union.

The above obligation is contravened if, on the ground of union membership, a person fails in a case where he maintains, in whatever form, a list of approved suppliers of goods and services, or a list of persons from whom tenders for the supply of goods may be invited to include the name of a particular person in that list if he terminates the contract for the supply of goods or services or does, in relation to the contract, any of the following acts: excluding a particular person from a group from whom tenders for the supply of the goods are invited; failing, omitting, failing to permit a particular person to submit a tender, otherwise determining not to enter a contract with a particular person for the supply of the goods or services.

A person fails to include the name of another person in the list on the ground of union membership if the ground for failing to include his name is either that, if the supplier were to work or enter into a contract with the first person for the supply of goods or work for the purpose of the contract, it would or would be likely to be done by persons who are not members of a particular trade union or that if the supplier were to enter into such contract work to be done for the purpose of the contract would or would likely be done by persons who are members of the trade union.

Terms and conditions in contracts for the supply of goods or services are void insofar as they purport to require any party to recognise one or more trade unions, whether or not named, for the purpose of negotiating with employees or classes of employees or to negotiate or consult with him or with any official of one or more trade unions, whether or not named.

The above is not an offence but a duty owed to the obligation to comply with which is omitted is a duty owed to each of the following: a person against whom it is taken or any other person who may be adversely affected by the contravention. Any breach of the duty is actionable accordingly, subject to defence applying to actions for breach of the statutory duty