Abstract

The Constitution provides for the right to engage in collective bargaining, and the Labour Relations Act 66 of 1995 (‘LRA’) regulates and gives effect to this right. However, neither source imposes a duty upon the parties to bargain with each other. The article examines the right to engage in collective bargaining and the nature of collective bargaining in South Africa. It explores various mechanisms under the LRA that encourage and advance collective bargaining, in the absence of a duty to bargain. These mechanisms include provisions relating to the protection of the right to freedom of association; organisational rights; industrial action; centralised bargaining; and the extension of collective agreements in terms of ss 23(1)(d) and 32 of the LRA. The article then considers the position in the US, the UK, Canada and Tanzania, where a duty to bargain in good faith is enacted in legislation. It argues that the voluntary system of collective bargaining in South Africa faces some challenges. The article suggests that there might be a need to recognise the duty to bargain in good faith, and perhaps to reintroduce bad-faith bargaining as a form of unfair labour practice. It argues that the duty to bargain in good faith is necessary to safeguard the collective bargaining system.