In 1996 the Constitution in South Africa has entrenched the right to engage in collective bargaining in terms of section 23(5), amongst the other labour rights. The Labour Relations Act 66 of 1995 does not include an express duty to bargain or enforce a duty to bargain in good faith. (Ndumo, 2005)

When referred to the Labour Relations Act of 1995, there is a failure to bargain that constituted an unfair labour practice in South African labour law. Good faith bargaining was considered important to limit the spate of industrial unrest that dogged in the labour relations of South Africa and therefore the courts imposed a general duty to bargain. Trade unions relied on the duty to bargain so that they can obtain recognition and certain organisational rights such as leave for trade union activities, trade union access, disclosure of information and many other rights. Collective bargaining is based on recognition where employers enjoy greater social and economic power than individual workers and the workers therefore need to act in concert to provide them collectively with the power they need to bargain effectively with employers. The Labour Relations Act of 1995 does not make any provision for duty to bargain but it does classify many concessions required by unions under the old law by extending a number of organisational rights to unions as mentioned above. These organisational rights serves as a source to collective bargaining. Workplace forums attempt to institutionalise bargaining at a level where it makes it mandatory for employees as well as employers to consult about certain matters in the workplace and a forum has to be established. (Venter & Levy, 2014)

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