Unlocking Collective Bargaining Agreements

A collective bargaining agreement is not a guarantee that the parties to it have the will, knowledge and experience to understand and implement all its provisions. PHOTO | COURTESY

Collective Bargaining Agreements (“CBAs”) are written agreements between an employer and employees usually represented by their Labour or Trade Union covering a specified period of time.

CBAs traditionally focused on salary determination but they have, with time, evolved to cover broad employment matters that include though not limited to wages, working hours and conditions, overtime payments, holidays, vacations and benefits as well as the procedures for dispute resolution amongst others.

The parties to a CBA must abide by it. There is a requirement under the law in Uganda for the agreement to be in writing but also registered with the relevant Labour Officer by the parties to it within 28 days of its conclusion.

There are punitive sanctions for non-compliance with registration though non-registration does not necessarily undermine the enforceability of the provisions of the CBA between the parties.

The terms of registered collective bargaining agreements provide the minimum of terms of offers that are incorporated in the employment contract of the covered workers.

CBAs are the end result of an extensive negotiation process dubbed collective bargaining establishing an agreed position between the parties regarding the terms and conditions of employment.

Collective bargaining agreements foster sound industrial relations because the workers are given the opportunity of contributing to decisions on their terms and conditions of employment including matters like promotion and discipline usually preserved for senior management.

This engagement between the employer and employees creates a favourable environment for the settlement of disputes through dialogue as opposed to disruptive confrontational industrial actions.

Legal framework
The collective bargaining process culminating into the conclusion of a CBA is grounded in the relevant International Labour Organisation (“ILO”) conventions on freedom of association, right to organise and collective bargaining that have been ratified by Uganda and enacted in domestic legislation.

Uganda’s Constitution guarantees the right to work, form and join a trade union as well as the worker’s right to representation and collective bargaining.
The Employment Act 2006 and the Labour Unions Act, 2006 provide the detailed regulatory framework for the relations between labour unions, employers and employees.

These laws amplify the employees’ right to organise themselves in labour unions or similar organisations as well as engaging in any lawful activities for collective bargaining purposes.

Parties to a CBA must abide by its terms but this is not always the case. Having in place a collective bargaining agreement is not a guarantee that the parties to it have the will, knowledge and experience to understand and implement all its provisions.

In fact, there are instances in practice when employers are reminded of their obligations under CBAs but they have long forgotten that they have entered into such with their employees.

Some employees are not members of the labour union or may withdraw their membership after sometime. As such, these employees may not consider themselves as bound by the agreements reached by the union on behalf of employees.

The legality of the CBAs may equally be challenged when membership to the labour union is significantly reduced. This, therefore, denies unions the much needed collective voice of workers to push for their rights if there is employer inertia to honour the terms of the CBA.

Despite the provisions of the law protecting the employees’ rights to organise and collectively bargain, employers undoubtedly wield overwhelming power and influence over their employees.

Union leaders at the forefront of advocating for workers’ rights can be victimised. In some cases, employers have been reluctant to recognise workers unions and in other cases derailed or completely ignored implementing the conditions agreed in the CBAs.
Though the law provides for recourse where an employer ignores the terms of the CBA, workers may be reluctant to pursue this further in courts of law in light of their less influential position in the employment relationship.
The provisions of collective bargaining agreements are likely to be fully implemented if their compliance is continuously monitored by third parties. Though the law in Uganda gives District Labour Officers power to enforce compliance of the provisions of CBAs, not all districts in Uganda have Labour Officers or are sufficiently staffed to be able to effectively discharge this mandate.

There are also be instances where some employees may be able to negotiate and secure better terms than those obtainable under the CBA. Such employees may find the CBA limiting and seek to undermine it or withdraw their participation.
The author is the managing partner, Cristal Advocates.