Freedom of association South African labour law

1 freedom of association

1.1 freedom not associate , freedom dissociate
1.2 dispute resolution
1.3 union security arrangements

1.3.1 agency-shop agreements
1.3.2 closed-shop agreements
1.3.3 distinction
1.3.4 controversy
1.3.5 dispute resolution

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.