Union security arrangements South African labour law

1 union security arrangements

1.1 agency-shop agreements
1.2 closed-shop agreements
1.3 distinction
1.4 controversy
1.5 dispute resolution

union security arrangements

the constitution allows union security arrangements contained in collective agreements. there no firm definition of term union-security arrangements, viewed generic term collective agreement between employer or employers’ organisation , trade union or trade unions, in terms of union membership, or alternatively payment of trade union subscriptions, condition of employment employees. infringes upon employee s right freedom of association. union security arrangements therefore require compulsory union membership, or compulsory payment of union subscription.

in south african context, term union-security arrangements refers so-called closed-shop , agency-shop agreements. limits set in constitution such agreements must

be contained in collective agreement; and
comply general limitations clause of constitution.

the 2 types of union security arrangements illustrated way of following example:

k employs 100 employees. 60 of them belong trade union t. these members pay monthly membership fee of r20. other 40 employees 10 belong union r , 30 non-unionised. every year wage negotiations, t negotiates k , increase agreed on applied across board. t feels hard work both union , non-union members benefit from. if t concludes agency-shop agreement k, mean k deduct agency fee of r20 salaries of other 40 employees , pay on t. other 40 employees not have become members of t [... but] members of r pay own membership fee r r20 agency fee.

if k , t conclude closed-shop agreement, mean other 40 employees of k must become members of t. r no longer allowed operate in workplace. 100 employees have pay r20 membership fee t.

agency-shop agreements

an agency-shop agreement defined in section 25(1) of lra: representative trade union , employers organisation may conclude collective agreement, known agency shop agreement, requiring employer deduct agreed agency fee wages of employees identified in agreement not members of trade union eligible membership thereof.

an agency-shop agreement concluded majority union , employer or employers’ organisation—concluded, is, way of collective agreement. employer must deduct agreed agency fee salaries of employees identified in agreement. in regard, important note may deducted not members of union eligible membership. conscientious objectors policies of union (on religious or moral grounds) must pay fee; fee, in turn, must paid fund administered dol. fee non-members pay must not higher subscription fee payable members of majority union. agency fees paid on separate account , may used benefit of employees @ workplace. agency fees may not used political affiliation , may not used purpose other advancing or protecting socioeconomic interests of employees. employer may deduct agency fees wages of employees without authorisation.

closed-shop agreements

a closed shop defined in section 26(1) of lra: representative trade union , employer or employer’s organisation may conclude collective agreement, known closed-shop agreement, requiring employees covered agreement members of trade union.

a closed-shop agreement concluded majority union , employer or employers organisation, way of collective agreement. employees covered agreement must have ballot before closed-shop agreement concluded. 2 thirds of employees (who potentially covered) voted must have voted in favour of agreement. union subscription fees may not used political affiliation; may used advance socioeconomic interests of employees. employees employed when closed-shop agreement came effect, along conscious objectors, may not dismissed refusing join union party closed-shop agreement. closed-shop agreement may terminated if majority of employees votes termination. not unfair dismiss employee refusing join union party closed-shop agreement, or refused union membership, or has been expelled union party agreement—provided refusal or expulsion in accordance union’s constitution, , provided reason refusal or expulsion fair one.

an employee may not required member of majority union before commencement of employment. latter called post entry closed-shop agreement. opposite of pre-entry closed-shop agreement: is, closed-shop agreement requires employee member of majority trade union before employment. pre-entry closed shops not allowed in south africa.

distinction

there important difference between two: in agency shop, employees not compelled or become members of trade union. in closed shop, however, employees covered collective agreement must or must become members of trade union.

controversy

the reason these agreements relates nature , practice of collective bargaining. under circumstances, employees not members of trade union bound provisions of agreement entered union. in other circumstances, employer may, in interests of administrative convenience, extend provisions of collective agreement non-union members. in effect, employees not members of trade union may derive benefits collective agreement entered union. understandably, unions have reservations state of affairs. these non-union employees called free riders, because derive benefits free: not pay union subscriptions, still obtain benefits of union’s collective bargaining. main argument in favour of forcing employees either belong union (in case of closed-shop agreements) or pay fee (in case of agency-shop agreements).

those support union-security arrangements argue necessary avoid free riders. furthermore, there view encourage responsible unionism. support collective bargaining aiding development of strong , representative trade unions. such arrangements said give union organizers sense of security, , enable them devote long-term interest of members, instead of collecting subscriptions , trying persuade reluctant employees join. some, main justification union-security arrangements add power of unions during collective-bargaining process, creating more effective counterbalance naturally superior economic power of corporate employer. preventing defection of members during wage bargaining may lead strike action.

there may benefit in such arrangements employer. if employees belong 1 union (or contribute union), employer need deal specific union. collective-bargaining relationship grows, pattern , consistency of collective bargaining can formed.

on other hand, consider unions possess monopoly status , excessive power see union security arrangements, particularly closed shop, main cause of undesirable state of affairs @ workplace. main arguments against union security arrangements are,

in case of closed-shop agreements, give more power unions, since union controls pool of applicants post;
in case of agency-shop arrangements, workers members of minority unions end paying double subscriptions (one union , 1 representative union); and
that union security arrangements, particularly closed-shop arrangements, infringe right not member of trade union or freedom not associate, intrinsic part of right of freedom of association.

the 2 ilo conventions on freedom of association , collective bargaining not make express reference notion of union-security arrangements. ilo committee left practice , regulation of each state authorise and, necessary, regulate use of union-security clauses in practice.

according committee, union security arrangements compatible ilo conventions on freedom of association, provided results of free negotiations between workers’ organisations , employers. long case, then, international body not interfere them, provided law of particular country not go far impose them , make union membership compulsory. however, when trade union security clauses imposed law itself, right join organization of 1 s own choosing compromised, , provisions incompatible ilo convention. accordingly ilo member states @ liberty include or not include in constitutions , labour legislation provisions regulating union-security arrangements.

despite arguments in favour of agency shops , closed shops, appear prima facie these types of agreement infringe employee’s freedom of association. particularly in case of closed shop, employee no longer free not associate: employee must belong specific trade union. employees no longer free choose union want belong to, or if want belong union @ all. if employee not member of particular trade union, or if loses trade-union membership in terms of union’s constitution, employee may end out of job.

it has been argued, accordingly, closed-shop agreement amounts infringement of employee’s freedom of association, protected sections 18 , 23 of constitution. situation different in case of agency shops: employee still has freedom choose whether or not wants belong union party collective agreement— if employee wants belong union in first place.

the solution problem lies in constitutional provision, section 23(6) of constitution, provides national legislation may recognize union security arrangements contained in collective agreements. extent legislation may limit right in chapter, limitation must comply s 36(1). in other words, union-security arrangements permitted within scheme of constitutional rights, , these arrangements may recognized national legislation (the lra).

agency shops , closed shops, then, not automatically unconstitutional, limitation of right union-security arrangement must comply section 36(1) of constitution, provides fundamental right, such freedom of association, may limited legislation long limitation reasonable , justifiable in open , democratic society based on human dignity, equality , freedom. section 36(1) contains list of factors must considered:

the nature of right;
the importance , purpose of limitation of right;
the nature , extent of limitation, , purpose of limitation; and
whether or not there less restrictive means achieve purpose.

applied agency , closed shops, purpose of these arrangements is, @ least in part, enhance collective bargaining development of strong , powerful trade unions , stable bargaining relationships. (collective bargaining protected section 23 of constitution.)

while agency shops not represent serious infringement of freedom of association, clear closed-shop agreement does. question (which still awaits answer) whether or not necessary force employees become members of union, when less restrictive method—that is, agency shop—exists.

dispute resolution

disputes collective agreements (including closed- , agency-shop agreements) must referred commission conciliation, mediation , arbitration conciliation. if conciliation fails, party dispute may refer matter arbitration. way of exception, lra makes provision in context appeal against award issued commission conciliation, mediation , arbitration commissioner. arbitration award may taken on appeal labour court.