Collective labour law South African labour law
1 collective labour law
1.1 history
1.1.1 industrial conciliation act (1924)
1.1.2 industrial conciliation act (1937)
1.1.3 botha commission
1.1.4 wiehahn commission
1.1.5 labour relations act (1995)
1.2 sources
1.2.1 common law
1.2.2 constitution
1.2.3 labour relations act
1.3 freedom of association
1.3.1 freedom not associate , freedom dissociate
1.3.2 dispute resolution
1.3.3 union security arrangements
1.3.3.1 agency-shop agreements
1.3.3.2 closed-shop agreements
1.3.3.3 distinction
1.3.3.4 controversy
1.3.3.5 dispute resolution
1.4 organisational rights
1.4.1 purpose
1.4.2 registration
1.4.2.1 prerequisite
1.4.2.2 procedure
1.4.2.3 specific rights
1.4.2.3.1 access workplace
1.4.2.3.2 deduction of union fees
1.4.2.3.3 election of shop stewards
1.4.2.3.4 time off trade-union activities
1.4.2.3.5 disclosure of information
1.4.3 different levels of representativeness unions different rights
1.4.3.1 majority representation
1.4.3.2 sufficient representation
1.4.3.3 workplace
1.4.3.4 thresholds
1.4.4 acquisition of organisational rights
1.4.4.1 through collective agreement
1.4.4.2 through membership of bargaining council
1.4.4.3 through s 21 procedure
1.4.4.4 through strike action
1.4.5 dispute resolution organisational rights
1.5 collective bargaining
1.5.1 bargaining fora
1.5.2 duty bargain
1.5.3 bargaining agents
1.5.4 levels of bargaining
1.5.5 disputes requiring bargaining council resolve
1.5.6 collective agreements
1.5.6.1 requirements
1.5.6.1.1 in writing
1.5.6.1.2 registration
1.5.6.1.3 content
1.5.6.2 binding effect
1.5.6.3 contracts of employment
1.5.6.4 termination
1.6 workplace fora
1.6.1 consultation
1.6.2 joint decision making
1.6.3 matters consultation
1.6.4 matters joint decision making
1.7 industrial action
1.7.1 hurdles in way of protected industrial action
1.7.1.1 compliance definition of strike or lock-out
1.7.1.1.1 definition of strike
1.7.1.1.2 definition of lock-out
1.7.1.2 procedural requirements protection of strikes , lock-outs in terms of section 64
1.7.1.2.1 issue in dispute
1.7.1.2.2 certificate of outcome
1.7.1.2.3 prescribed notice
collective labour law
cosatu south africa s largest trade-union federation.
the power play between employers , employees in evidence in engagement of employer , employee through collective labour law. lra, other labour legislation, lays down basic rights , duties , remedies ensuring fairness in employment relationship. these matters relating rights of employees , accordingly known rights issues. when comes creating new terms , conditions of employment—these known interest issues or matters of mutual interest —or changing existing terms, no legislation exists explicitly regulates situation. these issues, assumed, better dealt parties themselves. court may not, example, determine annual increase employees, or decide whether or not crèche facility @ workplace mandatory, or whether employees should permitted take friday afternoons off. reason impossible regulate these matters of mutual interest. collective bargaining comes picture.
the lra recognizes importance of collective bargaining , supports mechanism:
if collective bargaining can compared boxing match, lra can seen organiser of boxing match , employers , trade unions boxers on opposite sides. lra provides basic rules protect boxers both inside , outside boxing ring. done, example, protecting right of employees form , join trade unions , participate in activities. applies equally employers can form employers organisations.
section 213 of lra defines trade union “an association of employees principal purpose regulate relations between employees , employers, including employers’ organisation.” employer organisation defined “any number of employers associated purpose, whether or other purposes, of regulating relations between employers , employees or trade unions.”
the lra regulates registration of trade unions , employers organisations. creates bargaining fora, such bargaining councils , statutory councils, , guarantees right freedom of association. regulates organisational rights , strikes , lock-outs.
once workers organised in registered trade union, , employers in employers organisation, power play between workers , employers begins. employees may try force employer s hand way of strike action, while employer ma exert pressure on employees way of lock-out. accepted strike action result in measure of economic handship employer. provided strike has obtained protected status in terms of law—in other words, not prohibited, , prescribed procedures have been followed—such economic hardship considered part , parcel of power struggle between employees , employers: in fact, whole idea! more employer hurt economically, greater chance strikers demands met.
it important know when strike or lock-out protected, , when not, because determine course of action , remedies employers in case of strike, , employees in case of lock-out.
history
industrial conciliation act (1924)
between 1911 , 1918, succession of laws promulgated in south africa dealt various industrial sectors, , labour in general. in aftermath of large-scale industrial unrest on witwatersrand in 1922, however, comprehensive attempt undertaken regulate relations between management , organised labour. tumult on rand led directly first comprehensive piece of labour legislation, industrial conciliation act 1924, first legislation regulate strikes in country. recognised , regulated lock-outs. act provided registration of white trade unions , employers’ organisations, self-evidently white, , established framework collective bargaining through industrial councils or conciliation boards, dispute settlement system. although act largely voluntarist, compliance provisions , collective agreements enforced criminal sanction. 1924 act resulted in greater wage disparity between different racial groups. industrial conciliation act dealt collective labour rights; individual rights dealt in wage act in 1925.
industrial conciliation act (1937)
problems of enforcement led major revision of south african labour law, introduction of industrial conciliation act 1937. 1937 act tried introduce more councils, in greater geographical spread, more collective engagements facilitated. there proliferation of unregistered trades union black people, legislatively excluded. specifically, pass-bearing black workers excluded, although black women unionise.
botha commission
1948 watershed year. nationalist party won election, albeit small margin (which grew in later years), on promise of apartheid. botha commission established determine how regulate labour relations in such way protect interests of white people. commission’s comprehensive review led legislation had far-reaching effect on labour structure. trade unions racially divided, job reservation introduced , blacks precluded joining registered trade unions. commission recommended black trade unions should dealt in separate legislation, government went step further , created entirely separate legislative framework black workers in general. trade unions in 1950s among black workers therefore not part of formal collective bargaining framework.
by 1952, black women excluded trade-union membership, while in 1953 black labour relations regulation act made provision for, inter alia, creation of central black labour council , regional committees, black labour officials , black workers’ committees. 1956 saw prohibition of creation of mixed-race trade unions, necessitating different unions different race groups. part of state’s attempt isolate , fragment workforce. fuelled unrest, however, rather quelling it.
in 1970s, power of black trade unions became notable, in period marked political unrest , industrial action. in 1973, provision made creation of liaison , coordinating committees, , restricted right strike accorded black workers. attempt accommodate black interests, without recognizing parity white interests, did not have desired effect.
wiehahn commission
this dualistic system of labour relations—one blacks , other whites, coloureds , indians (although latter groups discriminated against)—lasted until beginning of 1980s. in 1977, government appointed commission of enquiry labour legislation, commonly known wiehahn commission made significant recommendations change, changed face of collective bargaining in south africa. tasked examine current legislation , make recommendations maintain peace in labour system. commission produced six-part report, primary recommendations of were:
that full trade union rights accorded black workers;
that job reservation scrapped;
that manpower commission established; and
that industrial court replace existing industrial tribunal , given extended powers.
in attempt give effect these recommendations, significant amendments made industrial conciliation act (renamed labour relations act 28 of 1956), further amendments formed legislative structure regulating collective labour relations next 15 years.
the country’s labour laws largely deracialised. african workers not migrant workers join trade unions. national manpower commission, statutory body comprising representatives employers organisations, trades , state, meet discuss economic , industrial policy, duly established.
in recognition of fact dispute-resolution mechanisms, thitherto inadequate, needed bolstered, industrial court (predecessor of present-day labour court) duly established, too. industrial court largely hands-off in respect of collective bargaining, in did not think had place involving here.
the last change implemented result of commission’s findings removal of race-based job reservation, seen having contributed unrest. these changes led tremendous growth in trade union movement, proved instrumental, in 1980s, in struggle against apartheid.
labour relations act (1995)
the system in place advent of democracy, when south africa shaken roots transformation of apartheid regime democratic constitutional order, fragmented. there numerous definitional problems, too. given prominent role played trade unions in bringing down apartheid, , given rapid , large-scale movement of former union leaders , cadres party politics , government, hardly surprising attention given labour rights m new dispensation.
the right fair labour practices, right bargain collectively , right strike entrenched number of other fundamental rights in new interim constitution came force in 1993. rights remained entrenched in final constitution, adopted new democratic parliament on 8 may 1996. @ point, although parties agreed these fundamental labour rights should given constitutional status (although there dispute extent of employer’s right lock out), there room disagreement on scope , content of rights. final constitution provided national legislation may enacted regulate collective bargaining.
cue, writes john grogan, government set preparing legislation give flesh bones of constitutional guarantees. first step appoint commission, under chairmanship of professor halton cheadle, produce draft labour relations amendment bill. accomplished 6 months later. draft formed basis of new labour relations act 66 of 1995, appeared in current form after intensive debate in national economic development & labour council (nedlac), body consisting of representatives of government, organised labour, , employers, including manpower commission , national economic forum. started thrashing out new framework, deal comprehensively both individual , collective labour law. given adversarial nature of relationship between organised labour , employers point,
this revolutionary development. under watchful eye of government representatives, , participation, management , labour entrusted task of developing draft bill uniquely south african product @ once satisfied aspirations of labour , reservations of management, , yet conformed letter , spirit of constitution , requirements of international labour organisation (ilo), of south africa member.
this produced current lra, yet turning point. 1 of hopes of drafters change adversarial stance tended adopted unions , management under old dispensation more co-operative one. lra created new institutions encouraging union-management cooperation, , revamped old ones, in hope transform , mature attitudes , bargaining styles.
sources
common law
the common law of south africa, amalgam of principles drawn roman, roman-dutch, english , other jurisdictions, accepted , applied courts in colonial times , during period followed british rule after union in 1910, plays virtually no role in collective labour law. initially, in fact, employment law, or law of master , servant, regarded branch of law of lease. such, common law did not concern directly collective bargaining; focus instead on rights , duties of individual employees , employers, reflected in contract on relationship based. law did not recognize claims employees had not been conferred agreement. although role of common law minimal, therefore, should noted common-law contractual relationship between employer , employee underpins collective labour law in general , collective bargaining in particular.
constitution
legislation therefore pivotal. constitution, however, more pivotal still. section 23 enshrines right fair labour practices, while section 18 provides has right freedom of association. right strike, furthermore, has been explicitly constitutionalized. constitution provides not right of every worker form , join trade union, right of every trade union form , join federation, cosatu. similar rights granted employers , employers’ associations well. right collective bargaining constitutionalized, mandate national legislation regulate it. more controversially, constitution provides national legislation may recognize union security arrangements contained in collective agreements.
labour relations act
collective bargaining 1 of ways in lra gives effect section 23 of constitution. important part of freedom of association. among first of lra’s aspirations, listed in preamble, regulate organisational rights of trade unions. trade union without organisational rights not of trade union. organisational rights allow trade union access workplace, etc.
the preamble describes purpose of lra promotion of collective bargaining, , regulation of rights strike , lock out. seeks advance democratization of workplace involving employees in decision-making through workplace forums, although these have not proliferated.
the lra defines employee person (excluding independent contractor) who
works person or state;
is entitled receive remuneration such work; and
assists in conduct of business.
trade union defined in lra association strictly of employees, principal purpose regulate relations between employees , employers. trade union must act in interests of members. trade unions support individual members individual disputes. trade union must have address in south africa, , name must not similar of union mislead or cause confusion. other requirements set out in section 95.
excluded application of lra members of
the national defense force;
the national intelligence agency; and
the south african secret service.
freedom of association
freedom of association, 1 of cornerstones of liberal democracy, 1 of basic principles of labour law, reflected in several ilo conventions, in lra , in constitution. freedom of association stems basic human need society, community, , shared purpose in freely chosen enterprise [...] protecting individuals vulnerability of isolation , ensuring potential of effective participation in society. in short, people have right associate others in order defend , protect common interests. constitutes both individual , collective human right. in addressing individual facet of freedom of association, supreme court of canada, in lavigne v ontario recognized essence of freedom of association protection of individual interests in self-actualization , fulfillment can realized through combination others.
however, writes mpfariseni budeli,
freedom of association important not facilitate effective participation in civil , political society. equally important in field of social , economic activity , particularly significant basis securing trade union freedom interference employer on 1 hand , government on other.
freedom of association in workplace may defined legal , moral rights of workers form unions, join unions of choice , demand unions function independently. includes right of workers participate in these unions’ lawful activities. freedom of association must therefore seen, according budeli, foundation of collective bargaining process, contributes ensuring fairness , equity in labour matters, , facilitating orderly , stable industrial relations.
freedom of association foundation of collective-bargaining process. before group or collective may engage in collective bargaining, necessary legal protection extended group or collective. legal measures necessary protect rights of people belong group or collective. freedom of association about: legal protection of freedom of persons join collective entity. law, therefore, both permits people join trade unions, , protects right so.
the ilo committee of experts has provided can regarded correct approach concerning freedom of association , social policy. in committee’s view, freedom of association should guaranteed in such way allow trade unions express aspirations, , provide indispensable contribution economic development , social progress.
the constitution grants general right freedom of association everyone, explicitly , trade unions. section 23 of constitution protects right of employees form , join trade union , participate in activities , programmes of union. freedom of association not apply employees, however; employer’s freedom of association protected, too: section 23 protects right of employers form , join employers’ organisations, , participate in activities , programmes of such organisations.
both trade unions , employers organisations have right
to determine own administration programs , activities;
organize; and
form , join federation.
finally,
every trade union, employers’ organisation , employer has right engage in collective bargaining. national legislation may enacted regulate collective bargaining. extent legislation may limit right in chapter limitation must comply section 36(1).
while constitution lays emphasis on importance of freedom of association, lra emphasizes, protects , gives concrete content foundational right. lra recognizes right of trade unions organize themselves. membership of trade union subject constitution of trade union. means union may determine, in constitution, types of employees may become members of union, , types of employees disqualified membership. unless employee qualifies membership in terms of union’s constitution, ineligible membership. principle has limits. trade union attempts, through constitution, limit members persons of race or sex find such provision ruled invalid; not registered in terms of lra.
section 4 not protect right join , form union. grants members of union right participate in affairs of union. member of trade union, employee has following rights:
to participate in union’s lawful activities;
to participate in election of of union’s office-bearers, officials or trade-union representatives;
to stand election, , eligible appointment, office-bearer or official, , hold office if elected or appointed; and
to stand election, , eligible appointment, trade-union representative, , carry out, if elected or appointed, functions of trade-union representative in terms of lra or collective agreement.
again, these rights subject constitution of union. if constitution of union requires nomination of candidate union office-bearer signed ten members in standing, , election means of secret ballot @ union’s annual conference, these provisions of union constitution must complied with.
the lra grants employees right freedom of association, , protects both employees , people seeking employment, should right infringed employer. section 5 of lra prohibits wide range of actions infringe right freedom of association in section 4. in terms of section 5(1), no person may discriminate against employee exercising right conferred act. examples of such discrimination include employer’s dismissal of employee, or failure give employee discretionary annual bonus, because employee joined trade union, , employer’s resort harassment against employee because employee has been elected trade-union representative.
the general protection of section 5(1) complemented section 5(2), prohibits specific types of conduct undermine freedom of association. in terms of section 5(2)(a), no person may require employee
not member of trade union;
not become member; or
to give membership.
the lra grants right of freedom of association employers well.
section 5(2)(b) provides no person may prevent employee (or prospective employee) exercising right in terms of lra, or prevent employee participating in lra proceedings. example, employer prevents employee standing election trade-union representative, or threatens union representative dismissal because representative representing union member @ disciplinary hearing, employer acting unlawfully.
in terms of section 5(2)(c), employees or job seekers may not prejudiced because of trade-union membership, joining trade union, participation in lawful activities of trade union, or disclosure of information entitled or required disclose.
section 5(3) prohibits employer attempting persuade or tempt employee surrendering rights granted in terms of lra. employer may not, example, offer promote employee, or promise wage increase, on condition employee surrender rights accorded him lra.
section 5(4) provides contract of employment limits freedom of association, either directly or indirectly, regarded invalid—irrespective of whether or not contract concluded before lra came effect.
in terms of section 187 of lra, automatically unfair dismissal if employer, in dismissing employee, acts contrary provisions protecting employee’s right freedom of association.
the protection of freedom of association, then, has 2 aspects:
although right freedom of association not guaranteed in terms of lra, in terms of constitution, scope of right has not been tested. question has arisen, however, of whether or not groups excluded application of lra, such defense force, entitled form , join trade unions, based on constitutional right freedom of association. issue came before constitutional court in sandu v minister of defence. court found that, although uniformed members of south african defense force, secret service , intelligence service excluded protection of lra, may claim right freedom of association under section 23 of constitution.
section 4 of lra states employees have rights set out in section. section 4 therefore applies senior managers well. may in circumstances, , does, cause problems both employers , managers themselves. senior manager involved in formulation of employer’s approach annual wage negotiations (including final offer ) may not able perform functions if member of union sitting on other side of bargaining table. might difficult, too, manager not divulge confidential information, bearing on bargaining process, union.
this issue arose decision in case of independent municipal , allied trade union v rustenburg transitional council, labour court declared unconstitutional prohibition on senior managers holding executive positions within union. court indicated, however, there limitations scope of section 4. pointed out that, in terms of common-law principles, employee owes employer duty of fidelity —a duty act in faith. because of conflicting aims of trade unions , employers, joining of union , participation in affairs may, in terms of common-law principles @ least, , in case of senior managerial employees, breach duty of fidelity.
common-law principles have been amended constitution, , section 4 of lra. court in imatu stated rights granted in section 4 unequivocal , unconditional, not unlimited. employees, including senior managers, entitled join trade unions , take part in affairs, not relieve them of contractual obligations employers. if, example, employee takes time off without permission attend union affairs, employee may disciplined on basis of misconduct. if senior employee, part of job conduct disciplinary enquiries, refuses undertake task when union members disciplined, amount incapacity.
a senior employee has access confidential information of employer must also, court added, tread when conducting trade-union business, , ensure information not disclosed.
in fawu v cold chain, employee offered managerial position alternative retrenchment, on condition no longer participated in activities of union, refused , retrenched, , court found dismissal automatically unfair, holding there nothing absurd in permitting senior managerial employee participate in activities of trade union—provided employee complies contractual obligations.
in kroukam v sa airlink, court held kroukam’s dismissal automatically unfair in terms of section 187(1)(d) of lra, because had been dismissed union activities , initiating litigation against company on behalf of union. court, in delivering verdict, cautioned against argument participation in trade-union activities destroys trust relationship between employer , employee; such argument unacceptable on policy grounds.
managerial employees, therefore, must balance right freedom of association common-law duty act in faith towards employers. if manager, example, divulges information trade union acquired virtue of managerial position, may disciplined.
sections 6 , 7 of lra grant , protect employer rights freedom of association in terms similar granted employees: form, join , participate in activities of employers’ organisations.
freedom not associate , freedom dissociate
freedom of association regarded positive right; protects rights of employees , employers actively form collective entities , join them. in case of trade unions, positive right protected prohibiting both state , employers infringing it.
freedom of association has negative aspect, however. not refer disadvantages or drawbacks may have; refers right not associate. in context of labour relations, principle of freedom of non-association means no person may force employee belong union in first place, or belong union other union of employee’s choice.
where limits of freedom of non-association lie subject of considerable controversy.
closed-shop agreements exist employer , trade union conclude collective agreement in terms of employer undertakes employ or retain in services employees have joined union. closed-shop agreement forces employees join union if keep jobs. closed-shop agreement seen infringement of employees’ right not associate.
sometimes mention made of freedom of dissociation. refers situation employees have decided associate each other decide prevent other employees associating them: example, union’s constitution stipulates employees in industry may join.
in practice, freedom of dissociation not controversial. more controversial constitutions of unions state union has right refuse admit person member of union if person eligible membership. constitution may provide expulsion of members. becomes vitally important if there closed-shop agreement, because refusal of membership of union may mean loss of job.
dispute resolution
if person alleges 1 of rights relating freedom of association has been infringed, dispute-resolution procedure contained in section 9 of lra applies. disputes interpretation or application of right freedom of association should referred conciliation bargaining council, statutory council or (if no council exists) commission conciliation, mediation , arbitration. if dispute remains unresolved, should referred labour court adjudication, unless parties agree arbitration.
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.
organisational rights
purpose
the lra not impose legal obligation on employers bargain collectively unions. law encourages collective bargaining; not compel it. 1 of ways seeks enabling trade unions acquire organisational rights in circumstances. granting of organisational rights trade union seen way of enabling trade union establish collective-bargaining relationship employer or employer’s organisation.
the trade union essential instrument engaging in collective bargaining. lra sets minimum rights trade unions (which may expanded upon agreement) in engagement employers. these organisational rights granted unions lra enable them function more effectively, build support @ workplace, , thereby lay foundations of collective-bargaining relationship employer.
if union, through acquisition of organisational rights, gains sufficient membership , significant presence in workplace or industry, employer or employers’ organisation may persuaded recognize union purpose of collective bargaining.
registration
prerequisite
organisational rights granted registered trade unions. lra not compel trade unions , employers’ organisations register, encourage registration. granting of rights in lra registered unions. instance, registered union may
conclude collective agreements enforceable in terms of lra;
apply establishment of bargaining or statutory council;
apply establishment of workplace forum;
authorize picket members; and
exercise organisational rights.
registration not prerequisite protected strike action.
procedure
once trade union or employers organisation has complied requirements set out in lra, registrar of labour relations must register union or organisation. in respect of unions, there 4 requirements met:
the first 3 requirements apply in case of employers’ organisation; last one, given overlap, not.
specific rights
the lra makes provision granting of 5 types of organisational rights. other organisational rights may granted not referred in lra; these must obtained through negotiation , agreement. 5 types of organisational rights made provision in lra listed , discussed below:
access workplace
the logical place contact between union representatives , members represent, prospective members whom union might recruit, in workplace. section 12 of lra states registered trade union, sufficiently representative, has right of access workplace. right allows union
to enter employer s premises, recruit members, communicate members , serve members interests;
to hold meetings employees @ workplace (but outside of working hours); and
to let members vote @ employer s premises in union elections or ballots.
the purpose of access union recruit new members, communicate existing ones , serve interests of union members in other ways.
the right of access refers access union officials, clear, not affiliated union. nor such officials not have free rein. right of access not unlimited. section 12(4) states exercise of union’s right of access workplace may subject such conditions, regards time , place, reasonable , necessary protect life , property, or prevent undue disruption of work.
in case of domestic workers, there no right of access workplace, given intimate nature of workplace.
deduction of union fees
this primary source of income unions. section 13 of lra grants unions right stop-order facilities. union fees used perform work , functions of union, hire officers , offices, , provide training. there no stipulation in lra or in related regulations how unions allowed charge, not much. amount determined constitution of trade union.
payment voluntary: member of registered , sufficiently representative union may authorize employer, in writing, deduct union subscriptions wages. done on union membership form. employer should start make deductions agreed possible, , should pay subscription on union not later fifteenth day of each month.
the employee may subsequently revoke authorization, however, on written notice of month, both employer , trade union. @ end of period, employer must stop making deduction.
when paying deductions trade union, employer must furnish union with
a list of union members wages deductions made;
details amounts deducted , paid union;
the period deductions relate; and
copies of written notices of revocation of authorization union members.
election of shop stewards
shop stewards union representatives, infantry of trade union. play important role in industrial relations, being in best position represent union in workplace , relay information workplace union. after day-to-day operation of union , protection , assistance of workers work-related problems. statutory role ensure compliance law , collective agreements.
section 14 of lra provides members of registered trade union, provided union represents majority of employees in workplace, entitled elect trade-union representatives if union has @ least ten members in workplace. nomination, election, terms of office , removal office of representatives governed union’s constitution.
the number of representatives determined according number of union members in specific workplace. example, if there between ten , fifty union members, there 2 representatives. amount increases on sliding scale. maximum number of representatives twenty.
the functions of union representatives set out in section 14(4) of lra:
to assist , represent employee @ request in grievance , disciplinary proceedings;
to monitor employer’s compliance lra , other applicable laws;
to report alleged contraventions of lra or collective agreements employer, representative trade union , responsible authority or agency; and
to perform other function agreed between representative trade union , employer.
shop stewards employed employer, not union. grogan describes difficult position in shop stewards find themselves, keeping 2 sets of books, or attempting serve 2 masters, employer , trade union—masters interests diametrically opposed. situation particularly difficult, writes grogan, when shop stewards occupy supervisory or managerial positions. courts have held, however, employers may not reason forbid managerial employees being elected shop stewards; can discipline them if union role prevents them performing managerial duties properly.
the distinction between union officials , union representatives (like shop stewards) important one. trade-union officials employees of trade union; perform various duties trade union in capacity. trade-union representatives, on other hand, remain employees of particular employer @ workplace, although represent union in various ways within workplace employed.
time off trade-union activities
section 14(5) of lra entitles trade-union representative reasonable time off, during working hours, without loss of pay, perform union functions , trained in subject relevant performance of functions. meaning of reasonable in relation paid time off not stated in act.
attendance @ union conferences , meetings may require office-bearer absent work. in terms of section 15(1), office-bearer of registered, sufficiently representative trade union entitled take reasonable leave during working hours purpose of performing functions of office. in terms of section 15(2), union , employer may agree on number of days’ leave, number of days’ paid leave , conditions attached leave. if union , employer unable reach agreement, dispute may determined award made in terms of section 21 of lra.
no benchmark shop stewards’ leave emerges decided cases, arbitrators have accepted ten days per annul reasonable. employers may take disciplinary action against shop stewards if exceed or abuse powers by, example, intimidating employees, including other shop stewards. employers entitled refuse deal shop stewards if have committed serious misconduct.
item 4(2) of code of practice: dismissal, seeks discourage victimization of shop stewards requiring employers inform , consult unions before taking disciplinary action against them reason. number of cases concerning dismissal of shop stewards have reached courts. approach in such cases determine
if does, dismissal ‘automatically’ unfair, , shop steward invariably reinstated.
disclosure of information
for trade union job effectively, may need access information. section 16 provides provision of information both trade-union representatives , trade unions. registered unions represent majority of employees in workplace entitled rely on section 16.
only relevant information must disclosed: say, in terms of section 16(2), relevant information allow representative trade union engage in consultation or collective bargaining must disclosed. information must relevant effective performance of functions in terms of section 14(4). there is, in other words, important link between information required , function of representative. requirement of relevance means relevance performance of specific task.
typically information in question in hands of employer. common example production plans or plans restructuring, affect or cause retrenchment.
the registered majority union has right information when employer involved in consultation or bargaining union, or when consultation or bargaining start. example, @ annual wage negotiations, employer may argue financial position, both short- , long-term, poor. trade union may dispute , demand relevant information on employer bases argument disclosed. employer have furnish, example, proof of cancellation of orders, , reasons such cancellation, existing , possible new orders, , financial statements.
the employer, however, cannot expected disclose information which
is unavailable;
is irrelevant issue or issues under discussion;
is legally privileged;
could harm employer s business interests if disclosed; or
is private personal information relating employee, unless employee has consented disclosure of such information. possible employer convey such information union without disclosing identities.
if employer regards types of information confidential, must notify union of fact.
disputes on disclosure of information referred commission conciliation, mediation , arbitration, attempt settle dispute through conciliation and, failing that, arbitration.
different levels of representativeness unions different rights
whether trade union entitled organisational rights depends on level of representativeness of trade union in workplace, can either majority representation or sufficient representation. if union represents majority of workers, have access organisational rights. if union sufficiently representative, have access organisational rights: rights of access, leave , stop-order facilities. rights elect shop stewards , disclosure of information, on other hand, reserved unions have members majority of employees in workplace.
usually, single union seeking organisational rights, 2 or more unions may act so.
majority representation
where union has majority, representing 50 per cent plus one, or more, of employees in workplace, enjoys following organisational rights:
the right of access workplace;
the right have membership fees deducted wages;
the right elect shop stewards;
the right of shop stewards leave union activities; and
the right of disclosure of information.
sufficient representation
where union sufficiently represented, represents less majority of employees in workplace. there no fixed rule sufficient representation; decided on case-by-case basis. sufficiently representative union enjoys following organisational rights:
the right of access workplace;
the right deduction of membership fees wages; and
the right leave of shop stewards trade-union activities.
if union member of bargaining council, enjoys following organisational rights:
access workplace; and
deduction of membership fees wages.
if minority union, may enforce rights through collective bargaining , industrial action. 2 or more trade unions may act jointly acquire rights.
the lra not define sufficient representation, give guidelines. factors taken account include nature of workplace , industry involved, presence or absence of other unions membership in workplace. approximate figure thirty per cent.
in upusa v komming knitting, commissioner extended right access workplace, right deductions of union subscriptions, union which, @ time of award, represented 7 employees out of 31. commissioner made decision on basis
that union union organising , recruiting @ workplace;
that had been present in workplace since shortly after employer’s inception; and
that current low level of representation due high labour turnover.
the commissioner held union seemed capable of recruiting majority of workers @ workplace.
in sactwu v marley, commission conciliation, mediation , arbitration refused organisational rights union 42 per cent representivity, on basis union represented 56 per cent of employees in workplace, , because employer had long association other union, included agency-shop agreement.
in numsa v feltex foam, question whether differing degrees of sufficient representativeness set different organisational rights: higher degree gaining access workplace, example, stop-order facilities. commission conciliation, mediation , arbitration held there have special circumstances allow him distinguish between such rights. if arbitrator prepared grant 1 of these rights, in other words, there have special circumstances justify refusal grant of others.
in organisation of labour affairs v old mutual life assurance, commissioner prepared order employer grant access workplace , stop-order facilities union level of representivity not ordinarily have permitted granting of these rights, on basis rights had been granted other unions lower representivity. similar approach adopted in group 4 falck v duswo.
the effect of these decisions that, when employer grants organisational rights union with, example, ten per cent representivity, employer cannot argue union seeking organisation rights must have @ least thirty per cent.
section 18 allows employer , majority union in workplace, parties bargaining council, establish collective agreement level of representativeness required purposes of gaining access, deductions , leave @ particular workplace.
the limit agreed threshold must applied equally unions seeking exercise any, or all, of these rights.
workplace
the workplace defined in section 213 of lra. there distinction drawn, in regard, between public service , private sector.
in public sector, workplace national department, provincial administration, provincial department or organisational component contemplated in public service act.
in private sector, workplace place employees of employer work.
if private employer has 2 businesses, independent of each other reason of size or function or organisation, place employees work in connection each independent operation constitutes workplace operation. foresees possibility geographically distinct operations may constitute 1 workplace. commission conciliation, mediation , arbitration commissioners been unwilling accept geographically distinct places of work constitute separate workplaces.
in speciality stores v saccawu, labour court loath find, in absence of proof trade union, different stores of retailer constituted different workplaces. court made clear onus rests on union prove 2 operations 2 different workplaces.
thresholds
employers , majority unions permitted conclude collective agreements set thresholds acquisition of rights under sections 12 (union access workplace), 13 (stop-orders) , 15 (time off). right conferred section 18 ( right establish thresholds of representativeness ), reads follows:
(1) employer , registered trade union members majority of employees employed employer in workplace, or parties bargaining council, may conclude collective agreement establishing threshold of representativeness required in respect of 1 or more of organisational rights referred in sections 12, 13 , 15.
(2) collective agreement concluded in terms of subsection (1) not binding unless thresholds of representativeness in collective agreement applied equally registered trade union seeking of organisational rights referred in subsection.
a threshold agreement, then, agreement restrict rights unions percentage of representation. idea prevent union fragmentation, , make bargaining genuinely collective.
acquisition of organisational rights
trade unions may acquire organisational rights in following ways:
through collective agreement;
through membership of bargaining council;
through strike action; or
through section-21 procedure.
through collective agreement
the lra makes provision in section 20 registered trade union , employer or employers organisation conclude collective agreement regulates organisational rights. means that, if trade union not representative, have organisational rights on parties agreed.
this route begins approach union employer, , request grant union organisational rights. section 20 not prescribe representivity requirements before employer entitled grant such rights in collective agreement. union small degree of representivity, therefore, may obtain organisational rights.
through membership of bargaining council
in terms of section 19 of lra, registered trade union, if party bargaining council, automatically acquires right of access premises, right have trade union subscriptions deducted stop orders, in respect of workplaces falling within jurisdiction of bargaining council. again, not matter, purposes of route, how representative union in specific workplace. union acquires these rights irrespective of whether sufficiently representative or not.
through s 21 procedure
briefly, section-21 procedure involves notice union employer of intention seek organisational rights, consultation between union , employer in attempt reach collective agreement, , referral union of dispute, if any, ccma, attempt settle matter through conciliation, failing arbitrate dispute , issue binding award. union in case must registered, , must enjoy level of representation in workplace.
the onus rests on union notify employer, in writing, intends seek organisational rights conferred act. notice must contain following information:
the workplace in union seeks exercise rights;
the representivity of trade union in workplace;
the rights trade union wishes exercise; and
the manner in trade union wishes exercise rights.
the notice must accompanied certified copy of trade union registration certificate.
within thirty days of receiving notice, employer must meet union. parties must try conclude collective agreement regulating manner in organisational rights exercised. employer may refuse grant union rights on grounds there dispute constitutes workplace, or because employer argues union not enjoy required degree of representativeness.
if parties fail conclude collective agreement, either of parties may refer dispute, in writing, commission conciliation, mediation , arbitration conciliation. if conciliation fails, either party may request dispute arbitrated. ccma has jurisdiction arbitrate if union has complied provisions of section 21, peremptory. failure union comply them mean commission conciliation, mediation , arbitration may not deal dispute.
the ccma commissioner called upon decide whether or not union representative. section 21 authorizes him make inquiries, conduct ballot , take other relevant information account.
once actual number of members has been established, section 21(8) provides commissioner
must seek minimize proliferation of trade union representation in single workplace and, possible, encourage system of representative trade union in workplace; and
must seek minimize financial , administrative burden of requiring employer grant organisational rights more 1 registered union.
here lra gives clear legislative support principle of majoritarianism.
in regard, commissioner must consider
the nature of workplace;
the nature of 1 or more organisational rights registered trade union seeks exercise;
the nature of sector in workplace situated; and
the organisational history @ workplace or other workplace of employer.
if employer of opinion union no longer representative, may refer matter commission conciliation, mediation , arbitration, requesting withdraw organisational rights. commissioner may withdraw of organisational rights once conferred exercised other registered trade union in respect of workplace, if other union has ceased representative union.
in order determine membership or support of registered trade union, commissioner may
make necessary inquiries;
where appropriate, conduct ballot of relevant employees; and
take account other relevant information.
the employer must co-operate commissioner , make available information , facilities reasonably necessary purpose. employer alleges union no longer representative trade union may apply ccma withdraw of organisational rights granted.
in summary, section 21 procedure runs follows:
the union notifies employer in writing intends exercise organisational rights.
within thirty days of notice, employer , union meet in attempt conclude collective agreement.
if collective agreement concluded, need go no further section 21; if not, either party refers dispute in writing commission conciliation, mediation , arbitration conciliation.
if matter not conciliated, there 2 options:
either party may request arbitration, after commissioner may determine representativeness of union , manner in rights exercised. commissioner may consider application withdrawal of rights, , relevancy , confidentiality of information. arbitration award binding on parties.
the union may strike, or employer may lock out:
if union gives notice of intention strike, may not refer dispute arbitration period of twelve months date of notice.
the same condition applies employer giving notice of lock-out.
the lra amendment bill before parliament proposes amend section 21. section 8a of proposed amendment allow non-majority trade union bring shop stewards workplace.
through strike action
the lra prohibit strike in support of demand employer grant or organisational rights union, because such dispute may referred arbitration in terms of section 21. section 65(2)(a) permits union otherwise have right refer dispute organisational rights arbitration in terms of section 21 embark on strike action in attempt force employer grant these rights.
a trade union, including minority union, may therefore strike in support of demand organisational rights if not meet statutory threshold acquiring such rights. except right information, in fact, organisational rights rights conferred lra on strikes permitted.
this consequence of numsa v bader bop, numsa, although not majority union, sought acquire right elect shop stewards striking. lower courts divided. divided labour appeal court held minority unions not strike such right because,
this judgment overturned constitutional court, however, held minority unions may strike in support of demands organisational rights not entitled under lra.
the constitutional court found nothing in section 20 of lra precludes collective agreement granting collective-bargaining rights, if qualification representativity not met. court s interpretation of that, if minority union asks for, not succeed in acquiring, organisational rights in question, , if conciliation subsequently fails, dispute-resolution mechanism strike it.
this judgment has been severely criticized.
if union utilizes strike remedy, unsuccessful in forcing employer grant rights, union loses right utilize section-21 procedure 1 year date on notice given of intention go on strike.
dispute resolution organisational rights
if there dispute interpretation of organisational rights, party may refer dispute in writing commission conciliation, mediation , arbitration conciliation and, if conciliation fails, arbitration.
disputes disclosure of information follow same route. in determining dispute, commissioner must strike balance between employer’s right privacy , interests of sound collective bargaining. commissioner has wide discretion make suitable award achieve this.
collective bargaining
the legal rules relating freedom of association , organisational rights aimed @ making collective bargaining possible. there specific rules govern collective bargaining process , result thereof: collective agreements.
neither constitution nor lra defines collective bargaining. because law not impose legal duty bargain on employers , trade unions.
collective bargaining must understood process. process of collective bargaining entails negotiations between 2 parties:
broadly, then, collective-bargaining process may defined process whereby employers (or employers’ organisations) bargain employee representatives (trade unions) terms , conditions of employment, , other matters of mutual interest.
unlike mere consultation, collective bargaining presumes willingness each party, not listen , consider representations of other party, abandon own fixed positions possible, in order find common ground.
bargaining occurs, inter alia,
where 2 opposing parties exchange demands , make counter-demands;
where propose (and accept or reject) compromises;
where negotiate; and
where 1 party places pressure on other give in demands.
bargaining, then, dynamic process.
collective bargaining concerned disputes of interest, not exclusion of disputes of right.
the word collective refers fact employees join in trade unions increase power in bargaining employers on wages, working conditions , other matters of mutual interest between them. important note that, on workers side, trade unions may engage in collective bargaining. although single employer can engage in collective bargaining, individual employee cannot, definition, engage in collective bargaining.
if successful, collective bargaining leads settlement , conclusion of collective agreement. if fails, there several options available employer or union, including
resort lock-out or strike; and
submitting dispute mediation.
when trade union enters collective-bargaining process, have 1 of 3 objectives in mind:
bargaining fora
the lra makes provision establishment of 2 institutions within collective bargaining may take place:
the establishment, composition , function of bargaining councils , statutory councils regulated in detail lra. employers , trade unions remain free, however, agree own collective-bargaining fora , procedures. act, however, not regulate non-statutory collective bargaining in detail; left employer , trade union reach agreement on issues such as
where collective bargaining take place (at industry, enterprise or plant level);
when collective bargaining take place;
on topics collective-bargaining occur;
who represent parties during collective-bargaining process;
which employees covered collective-bargaining process; and
the precise procedures followed.
the facet of type of bargaining regulated lra legal effect , binding nature of collective agreements entered into.
duty bargain
it argued constitutional right bargain collectively (s 23(5)) includes both legally enforceable right bargain collectively, corresponding duty bargain collectively on other party relationship. since lra not create duty bargain, may give rise argument act not go far enough in protecting , giving content constitutional right. debate may have solved courts in future. now, however, there no general duty bargain on employers , trade unions in terms of lra. employer may refuse engage trade union; in turn, trade union may take strike action.
the question of whether constitutional right bargain collectively includes duty on other party has arisen in connection 1 group of persons not covered act: members of south african national defence force (sandf). in 3 separate disputes, high court had consider whether south african national defense force union (sandu) may rely on provisions of section 23 in order obtain court order require state bargain collectively it. these decisions, , arguments, contradictory.
the sca, on appeal, held constitutional provision not impose judicially enforceable duty bargain on employers or employees. on further appeal, however, constitutional court left question open. did point out, however, contrary approach create difficulties. came close, then, agreeing sca no duty bargain collectively exists in south african labour law.
although lra not compel parties bargain each other, encourages collective bargaining through granting of organisational rights, right establish bargaining institutions , closed-shop , agency-shop agreements. should employer refuse bargain, act allows strike action employees convince employer bargain. refusal bargain includes:
the employer’s refusal recognise trade union bargaining agent;
the employer’s refusal establish bargaining council;
the employer’s withdrawal of recognition of collective bargaining agent;
the employer’s resignation party bargaining council; and
the employer disputing appropriate bargaining units, levels , topics.
disputes regarding refusal bargain must first referred commission conciliation, mediation , arbitration advisory award. advisory award provides guidance only; not binding on parties.
bargaining agents
collective bargaining performed bargaining agents, namely trade unions , employers’ organisations. lra sets requirements unions , organisations relating registration. trade union defined association of employees principal purpose regulate relations between employers or employers’ organisations , employees. employees may members of trade union. job seekers , ex-employees may not members of trade union.
to qualify trade union, association of employees need not registered. registration beneficial, however, since registered trade union entitled rights, such right to
conclude collective agreement enforceable under lra;
acquire organisational rights;
be member of bargaining council, statutory council , workplace forum; and
conclude closed-shop , agency-shop agreements.
the powers , functions of bargaining council outlined in section 28 of lra. bargaining council has 3 main functions:
levels of bargaining
collective bargaining can take place @ plant level, sector level or industry level. lra encourages collective bargaining @ sector or industry level. provision made establishment of bargaining councils particular sector. @ level bargaining take place in bargaining councils. moreover, bargaining councils may established in private public sector. private sector economic sector in state not employer; in public sector, state employer.
disputes requiring bargaining council resolve
disputes freedom of association: bargaining council can conciliate these disputes, failing should referred labour court adjudication.
disputes of interest in essential service: bargaining council can conciliate , arbitrate these disputes.
disputes severance pay: bargaining council can conciliate , arbitrate these disputes.
disputes unfair labour practices: bargaining council can conciliate unfair-labour-practice disputes provided not relate discrimination. discrimination disputes must referred commission conciliation, mediation , arbitration conciliation, failing must go labour court adjudication.
disputes may lead strike or lock-out: bargaining council can conciliate these disputes.
dismissal disputes, if reason dismissal based on operational requirements, participating in unprotected strike, reasons connected closed-shop agreement, or automatically unfair: bargaining council can conciliate these
disputes.
disputes based on misconduct
and incapacity: bargaining council may conciliate , arbitrate these disputes way of con-arb procedure.
collective agreements
the main goal of collective bargaining between employer , trade union reach consensus matters , formalise relationship means of collective agreement. collective agreement regulates rights , duties of parties, terms , conditions of employment of workers.
in terms of section 213 of lra, collective agreement written agreement concerning terms , conditions of employment or other matter of mutual interest concluded 1 or more registered trade unions, on 1 hand and, on other
one or more employees;
one or more registered employers’ organisations; or
one or more employers , 1 or more registered employers’ organisations.
the parties, therefore, are
a registered trade union; and
the employer/s and/or registered employers organisation/s.
requirements
there 3 important elements distinguish collective agreement other agreement between employees , employers:
in writing
a collective agreement need not signed parties agreement valid. required agreement in writing. not necessary collective agreement contained in single document. would, however, advisable parties agreement sign single written document, assist in eliminating later disputes whether or not agreement entered into, , content of agreement was.
registration
only registered unions may parties collective agreements, union being unregistered not mean union may not conclude agreement employer; means agreement fall outside scope of lra, , not enforceable in terms of lra. single employer may conclude collective agreement; single employee cannot. reason inequality of power between employer , single employee, , single employee not collective .
content
the definition states topics must regulated collective agreement. must deal terms , conditions of employment, , other matters of mutual interest between parties. terms , conditions of employment relate substantive provisions of employment relationship, working hours, remuneration , leave. collective agreements can regulate granting of organisational rights registered unions.
binding effect
a distinction must drawn between parties agreement , members of parties agreement. section 23 of lra provides following entities or persons bound collective agreement:
the parties agreement;
each party agreement , members of every other party agreement, in far provisions applicable them;
members of registered trade union , employers members of registered employers’ organisation party collective agreement if regulates
terms , conditions of employment; or
the conduct of employers in relation employees or conduct of employees in relation employer.
employees not members of registered trade union or unions party agreement, if
the employees identified in agreement;
the agreement expressly binds employees; and
the trade union or unions represent majority of employees employed in workplace.
a collective agreement binds whole period of collective agreement every person bond in terms of section (1)(c) member @ time became binding, or becomes member after became binding, whether or not person continues member of registered trade union or registered employers’ organisation duration of collective agreement.
contracts of employment
where applicable, collective agreement varies contract of employment between employee , employer if both bound collective agreement.
termination
unless collective agreement provides otherwise, party collective agreement concluded indefinite period may terminate agreement giving reasonable notice in writing other parties.
workplace fora
to encourage workers’ participation in workplace, concept of workplace forum has been introduced lra. workplace forum in-house institution promoting workers’ participation in decision making @ workplace. workplace fora intended deal non-wage-related issues such restructuring, introduction of new technology, new work methods, , like.
it important not confuse trade union , workplace forum, latter not bargaining structure:
a union juristic body; forum not.
a union deals wage-related issues; forum deals non-wage-related issues.
a union can embark on industrial action; forum cannot.
all employees, including non-union members, may members of forum. senior managerial employees, however, may not members of forum. registered trade unions or trade unions acting jointly, representing majority of employees employed in workplace, may apply establishment of forum.
a forum may established in workplace of employers more 100 employees, either through collective agreement or through intervention of ccma. larger employers, therefore, involved in fora.
a forum must meet regularly. functions consult on matters , have joint decision making on other matters.
consultation
consultation entails employer
allows forum make representations , advance alternative proposals; and
considers , responds these. if employer disagrees them, must state reasons disagreeing.
consultation must take place before employer implements proposal.
joint decision making
joint decision making requires employer consult , reach consensus forum.
matters consultation
matters consultation include (unless regulated collective agreement) proposals relating to
restructuring workplace (for example, introduction of new technology , new work methods);
changes in organisation of work;
total or partial plant closure;
mergers , transfers of ownership in far affect employees;
the retrenchment of employees;
exemption collective agreement or law;
job grading;
criteria merit increases or payment of discretionary bonuses;
education , training;
product development plans; and
export promotion.
a bargaining council or representative union , employer may conclude collective agreement granting forum right consulted additional matters fall within council’s registered scope.
matters joint decision making
matters joint decision making cannot regulated collective agreement. matters joint decision making relate to
disciplinary codes , procedures;
the proper regulation of workplace (except work-related performance);
measures designed protect , advance persons disadvantaged unfair discrimination; and
changes employer-representatives on boards of employer-controlled schemes regard social benefits.
a representative union , employer may enter collective agreement conferring on forum joint decision making in respect of additional matters or removing other matters.
in fulfilling duties consult , have joint decision making, employer required disclose relevant information allow forum participate in consultation , joint decision making. employer not obliged disclose information, however,
that legally privileged;
that employer may not disclose without contravening law or court order,
that confidential and, if disclosed, may cause substantial harm employee or employer; and
private personal information relating employee (unless employee has consented disclosure).
disputes disclosure of information must referred commission conciliation, mediation , arbitration. if parties fail resolve dispute through conciliation, party dispute may request arbitration.
the commissioner not compel employer disclose irrelevant information.
despite potentially important influence forum may have on workplace, few such forums found in practice. due employers viewing fora inroad managerial prerogative, , concern of unions fora undermine collective bargaining structures.
industrial action
at end of collective-bargaining session or process, parties may either reach agreement or fail so. if agreement reached, collective agreement concluded. if no agreement reached, parties may agree on mediation or arbitration, or decide exert pressure on each other through industrial action.
industrial action, called collective action, refers employees acting force hand of employer, employers, too, purposes of industrial action, employers may act individually or collectively other employers lock out employees. industrial action employees can take form of strikes, secondary strikes, pickets , protest action, while employers have recourse lock-outs.
strikes , lock-outs reality in workplace— friction in marriage reality. conflict in workplace— , in marriage —is not negative:
it gives parties opportunity reaffirm different bargaining strengths , positions. conflict becomes problematic if matters out of hand result of power struggle. undermine purpose of conflict.
another problematic aspect of conflict once parties in stand-off, matter not resolved without loser , winner . in long run, may lead deterioration of relationship , may spark further friction other issues.
in workplace, again in marriage, law seeks ensure healthy , productive conflict can lead resolution of matters of mutual interest. lra sets out manner in done regulating various types of industrial action.
in past few years, south africa has seen high level of industrial action. department of labour has reported working days lost work stoppages in 2010 highest ever, approximately 20,674,737 working days lost 74 work stoppages; in 2009, there 51.
the right strike protected in south africa through constitution, guarantees every worker has right [...] strike. constitution not give employers right lock out employees. employers’ right lock-out implied in constitution’s express protection of right bargain collectively. lra provides, however, in section 64(1), every employee has right strike, , every employer has recourse lock-out.
neither right strike nor right lock-out directly protected in terms of ilo convention, indirectly done through ilo convention 87 , ilo convention 98, both ratified south africa.
both strikes , lock-outs essential elements of collective bargaining, such rights should used measures of last resort. strikes used employees demands in promoting , defending employment-related interests; lock-outs used employers employment-related demands.
in matters of industrial action, important know type of action take. different types of industrial action serve different purposes. purpose of employer or employees determine type of action taken:
a strike undertaken remedy grievance or resolve matter of mutual interest between employees , employers.
a secondary strike strike in support of strike (known primary strike) in order put pressure on primary employer accede demands of striking employees.
a picket peaceful demonstration of support protected strike, or of opposition lock-out.
protest action undertaken promote or defend socioeconomic interests of workers.
a lock-out undertaken employer compel employees accept demand in respect of matter of mutual interest between them.
not important ensure right type of action chosen; important ensure action protected lra. in case of protected strike or lock-out—it used called legal strike or lock-out under 1956 lra—the parties taking part in action not guilty of breach of contract , cannot dismissed reason. court may not order interdict stop action continuing, , participants in industrial action not held liable compensation work stoppage.
hurdles in way of protected industrial action
no right unlimited. rights may limited in interests of society or rights of others. section 36(1) of constitution provides limitation of rights in terms of law of general application. lra such law. limits right strike.
strikes , lock-outs not automatically protected, there hurdles employees , employers have cross before actions protected:
compliance definition of strike or lock-out
it important actions taken employees , employers fall within definitions of strike or lock-out. action not amount strike or lock-out not enjoy protection in terms of lra. first hurdle crossed employees , unions protected strike, , employers protected lock-out. hurdle stands on 2 legs:
definition of strike
strike defined follows:
the partial or complete concerted refusal work, or retardation or obstruction of work, persons or have been employed same employer or different employers, purposes of remedying grievance or resolving dispute in respect of matter of mutual interest between employer , employee , every reference work in definition includes overtime work, whether voluntary or compulsory.
except protest action, intentional refusal work amount misconduct unless can regarded strike action in terms of above definition. in order qualify strike action, employees must comply following 3 elements contained in definition:
there must refusal work in order action qualify strike. first hurdle employees must cross. refusal work must be
in relation work employees contractually obliged perform; and
not contrary law or collective agreement.
the action may partial (in employees still perform of duties), or complete (in employees not perform of duties), or retardation of work (where employees work, @ reduced pace), or obstruction of work (where employees disturb production through actions). refusal employees work overtime constitutes strike, whether overtime compulsory (required contract or collective agreement) or voluntary.
although constitution grants individual workers right strike, right cannot exercised individually. action must be
concerted;
persons; and
constitute collective action.
an individual employee cannot engage in strike. more 1 person must involved in order action constitute strike. action must carried out people acting or have been employed same employer or different employers (as in case of industry-wide strike). action directed @ employer or employers. if, example, employees refuse work because have demand against union, not amount strike action. exception exists in respect of secondary strikes.
the refusal work must common purpose of remedying grievance or resolving dispute in respect of matter of mutual interest between employer , employee. grievance or issue in dispute in respect of matter of mutual interest must exist, therefore, before action may deemed strike. there no grievance or dispute against employer, there cannot strike. while concept of mutual interest not defined in lra, described whatever can , reasonably regarded calculated promote well-being of trade concerned.
matters of mutual interest may include, example,
terms , conditions of employment;
health , safety issues;
the negotiation of disciplinary procedures; and
wage increases.
an important indication matter 1 of mutual interest matter can dealt through collective bargaining. example, political issues or demands against state not qualify, unless state employer , demands relate state’s role employer. these political issues or demands should dealt way of protest action.
definition of lock-out
while employees have right strike in terms of constitution , lra, employers not have right lock-out, have recourse lock-out in terms of section 64 of lra.
lock-out defined as
the exclusion employer of employees employer’s workplace, purpose of compelling employees accept demand in respect of matter of mutual interest between employer , employee, whether or not employer breaches employees’ contracts of employment in course of or purpose of exclusion.
to constitute lock-out, employer’s action must contain following 2 elements:
procedural requirements protection of strikes , lock-outs in terms of section 64
the second hurdle crossed in order strike or lock-out regarded protected procedural requirements must complied with. hurdle stands on 3 legs prescribed section 64(1):
the issue in dispute
the lra defines issue in dispute demand, grievance, or dispute forms subject matter of strike or lock-out. issue in dispute must fall within definition of strike (or lock-out). in other words, demand, grievance or dispute employees strike (or employer locks out) must relate matter of mutual interest.
the lra requires parties must try resolve issue. requires parties first refer dispute bargaining council (if there 1 sector). if no bargaining council exists, dispute must referred commission conciliation, mediation , arbitration conciliation.
certificate of outcome
the bargaining council or commission conciliation, mediation , arbitration must attempt resolve dispute through conciliation within thirty days of referral. if parties dispute reach agreement, dispute resolved. if no agreement reached, conciliator must issue certificate indicate matter has not been resolved. after (or after thirty days have gone since referral of dispute conciliation), parties can give notice of proposed strike (or lock-out).
prescribed notice
if conciliation fails, or thirty days have passed since referral of dispute, @ least 48 hours’ written notice must given of commencement of strike or lock-out. if state employer, @ least 7 days’ notice must given. if employer member of employers’ organisation, notice must given employers’ organisation.
in case of proposed lock-out, employer must give notice union involved in dispute, or employees directly if there no union.
the lra not prescribe details notice must contain; regulates must in writing , must issued 48 hours before commencement of industrial action.
there exceptions, according which, parties not need follow procedures prescribed lra:
if parties dispute members of bargaining council , dispute followed procedure set council’s constitution;
if parties concluded collective agreement prescribed procedures followed before strike or lock-out, , have complied agreement,
if employer implements unprotected lock-out , employees strike in response (and same apply if employer locked-out employees in response unprotected strike);
if strike takes place after employer has unilaterally changed terms , conditions of employment, , employer fails rectify despite prior warning; and
if employer refuses bargain union, in case dispute must first referred conciliation , advisory arbitration before notice of strike can given.
^ mcgregor , dekker labour law rules! p. 159.
^ s 213 of lra.
^ mcgregor , dekker labour law rules! p. 160.
^ grogan collective labour law 4.
^ pretorius, fransjohan (2014). history of south africa: distant past present day. hatsfield, pretoria: protea book house. isbn 978-1-86919-908-1.
^ grogan collective labour law 6.
^ grogan collective labour law 7.
^ grogan workplace law 308.
^ grogan collective labour law 11.
^ s 23(2)(c).
^ s 23(2)(a).
^ s 23(4)(c).
^ s 23(3)-(4).
^ s 23(5).
^ steadman, felicity. workplace forums in south africa: critical analysis. indus. lj 25 (2004).
^ if association 1 of students, example, not meet definition.
^ s 95(4)
^ s 2(a).
^ budeli, m. understanding right freedom of association @ workplace: components , scope. (2010) 16.
^ 2 fundamental ilo conventions on freedom of association have been ratified south africa: convention 87 , convention 98.
^ see south african national defence union v minister of defence & (1999) ilj 2265 (cc); sandu v minister of defence & [2003] 9 bclr 1055 (t).
^ budeli understanding 16.
^ budeli understanding 19. right associate concerns individual active participant in social activities , in sense collective right in far can exercised plurality of individuals (19-20).
^ budeli understanding 17.
^ budeli understanding 18, citing olivier statutory employment relations in south africa in slabbert, prinsloo, swanepoel , backer (eds) managing employment relations in south africa (1999) 5-60.
^ budeli understanding 20.
^ see da basson south african interim constitution text , notes (1994) 40.
^ budeli understanding 19.
^ ss 18, 23(2).
^ s 4(1)(b).
^ basson essential labour law 252.
^ s 4.
^ s 5.
^ again, worth emphasising protection of freedom of association accorded section 5(2) applies prospective employees.
^ s 6.
^ s 2.
^ s 2.
^ non-uniformed members of defence force civil servants; fall under lra.
^ basson essential labour law 254.
^ independent municipal , allied trade union & others v rustenburg transitional local council (2000) 21 ilj 377 (lc).
^ type of council established no bargaining council exists (ss 39-43 of lra), few councils of type exist in practice.
^ s 23(6).
^ s 36(1).
^ mcgregor , dekker labour law rules! p. 164.
^ basson essential labour law 286.
^ haggard compulsory unionism, nlrb , courts (1977) 13.
^ budeli understanding 31.
^ budeli understanding 32.
^ see budeli understanding 29-31 , sources there cited.
^ see venezuela case (case 1611).
^ basson essential labour law 287.
^ s 24(6)-(7).
^ grogan collective labour law 58.
^ grogan collective labour law 60.
^ independent municipal , allied trade union v rustenburg transitional council (2000) 21 ilj 377 (lc).
^ s 15(1).
^ mcgregor , dekker labour law rules! p. 167.
^ grogan workplace law 324.
^ (2003) 24 lu 305 (cc).
^ s 22.
^ steenkamp et al right bargain collectively (2004) 25 ilj 943.
^ s 64(2).
^ although part of alternative dispute resolution, advisory arbitration more mediation. allows parties debate case without fear of final decision.
^ s 213.
^ see newu v mtshali & (2000) 21 lu 1166 (lc).
^ functions of statutory council narrower of bargaining council.
^ plant-level bargaining refers bargaining takes place between employees (normally represented unions) , employer @ specific plant or factory.
^ sectoral bargaining refers bargaining takes place in specific sector of economy , linked specific geographical area.
^ industry-wide bargaining refers bargaining whole industry, mining or motor manufacturers, on national level.
^ cite error: named reference s 27 invoked never defined (see page).
^ in public service, public service coordinating bargaining council coordinates activities of 4 main bargaining councils in public sector:
^ s 23(3).
^ s 84(1).
^ s 84(2).
^ s 86(1).
^ s 86.
^ s 89(2).
^ van niekerk 362-363.
^ department of labour annual report, industrial action report (2010) 3.
^ 23(2)(c).
^ section 27(5) of interim constitution, 1993, included right of employers have recourse lock-out, right not included in final constitution.
^ mcgregor , dekker labour law rules! p. 181.
^ mcgregor , dekker labour law rules! p. 182.
^ exception exists in cases of misconduct committed during strike action, , if, result of prolonged industrial action, employer suffers economically , needs dismiss employees based on operational requirements of business.
^ section 64(3) provides circumstances in there no need comply procedural requirements.
^ see maserumule p perspective on developments in strike law (2001) 22 ilj 45.
^ examples of partial strikes work-to-rule , go-slows.
^ called overtime ban.
^ see ford motor co. of sa (pty) ltd v national union of metalworkers (2008) 29 ilj 667 (lc).
^ mzeku & others v volkswagen sa (2001) 22 il) 771 (ccma).
^ simba (pty) ltd v fawu & others (1998) 19 lu 1593 (lc).
^ rand tyre , accessories (pty) ltd & appel v industrial council motor industry (transvaal), minister of labour, , minister justice (1941) tpd 108.
^ see mischke c matters of mutual interest ? (2001) cll 10(9) 86.
^ section 213.
^ s 67(3).
^ s 64(1)(a).
^ cite error: named reference :0 invoked never defined (see page).
^ s 64(1)(a)(i)-(ii).
^ s 64(1)(b)-(c).
^ sa airways (pty) ltd v sa transport allied workers union (2010) ill 1219 (lc).
^ s 64(3)(a).
^ s 64(3)(b).
^ see columbus joint venture t/a columbus stainless steel v numsa [1997] 10 bllr 1292 (lc).
^ see county fair foods (pty) ltd v food & allied workers union & others (2001) 22 ilj 1103 (lac).
^ s 64(3)(c)-(d).
^ s 64(3)(e).
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