A word of caution to Employers operating in the Road Freight and Logistics Industry. Whether you are registered or not, the wide application of the Main Collective Agreement of the National Bargaining Council for Road Freight and Logistics Industry might have dire consequences for your business if you are non-compliant.

The National Bargaining Council for Road Freight and Logistics Industry (‘NBCRFLI’) and the Main Collective Agreement

All businesses associated with the transportation of goods by means of motor transport for hire or reward are affected by the agreements made by the NBCRFLI. The definition of ‘Goods’ includes but is not limited to sand, soil and stone.

The NBCRFLI consists of the Road Freight Employers’ Association and a number of trade unions representing the interests of employees. The NBCRFLI has concluded several agreements which are binding on its members. These agreements are:

• THE MAIN AGREEMENT
• THE AGENCY SHOP AGREEMENT
• THE EXEMPTIONS AND DISPUTES RESOLUTION AGREEMENT
• THE PROVIDENT FUND AGREEMENT

As of 15 March 2019 employers and employees operating in the Road Freight and Logistics Industry, whether a registered member with the NBCRFLI or not, shall be bound by the NBCRFLI Main Collective Agreement[1]. 

What does this mean for the private employment contract between employer and employee? Can parties ‘contract out’ of the Main Collective Agreement?

The employment contract is the starting point to the employer and employee relationship. The employment contract’s purpose is not only the engagement of services but the employment contract also stipulates the terms for such engagement. It follows naturally that if the employment contract does not comply with statutory prescripts, the foundation of the employment relationship is compromised.

The Labour Relations Act 66 of 1995 (the ‘LRA’) provides that, where there is a conflict between the employment contract and the collective agreement, a collective agreement varies any contract of employment between an employee and employer who are  both bound by the collective agreement.[2]

A contract of employment (irrespective of whether it was concluded before or after the operative date of the concerned collective agreement) may not permit treatment less favourable than that prescribed by the collective agreement or a waiver of the application of the provisions of the collective agreement[3].

Any provisions of an employment contract that purports to permit such a prohibited agreement shall be invalid.[4]

If you operate in the Road Freight and Logistics Industry, you will be bound by the Main Collective Agreement and you may not lawfully ‘contract out’ of same.

What notable aspects of the employment relationship does the Main Collective Agreement provide for?

The Main Agreement deals with, amongst other things, the following notable aspects:

1. Remuneration – minimum weekly wages, increases, overtime, allowances, incentives and deductions;
2. Working hours / driving hours – ordinary hours, compressed work weeks, overtime, meal breaks, off-duty periods;
3. Leave – annual leave, sick leave, maternity leave, public holidays, study leave, family responsibility leave;
4. Documentation to be kept;
5. Dues and levies;
6. Termination of employment; and
7. Obligations of the Employer.

What are the consequences of non-compliance with the Main Collective Agreement?

If an employment contract attempts to permit treatment less favourable than that prescribed by the collective agreement or a waiver of the application of the provisions of the collective agreement it may lead to the contract or the offending clauses being invalid. This will result in the employment relationship being regulated by the Main Collective Agreement of the NBCRFLI. Thus, the terms of engagement between employer and employee will no longer be as originally envisaged.

In an industry underpinned by meticulous planning, an employer, managing a business, cannot afford to be blindsided by the risks associated with non-compliance.

Except for the dire consequences that non-compliance may have for the administration of a business, it may also lead to the business being issued with a compliance order, harsh penalties such as hefty fines (as much as 200% the original capital amount), trade sanctions or criminal charges being instituted and a loss of lucrative opportunities as well as reputational woes

For employment contracts that are fully compliant with the NBCRFLI Agreement or any other compliance issues, please contact:

JEAN – PIERRE VENTER

Email: jpventer@bdk.co.za

Cell: 082 378 0238

Tel: (011) 838 – 1213

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[1] Government Notice No. 426

[2] Section 23(3) of the LRA

[3] Section 199(1) of the LRA

[4] Section 199(2) of the LRA