LABOUR LAW – MRL 303 P – Mitzi Coertzen

Part 4: Collective Labour Law

SU 12: Intro to collective Labour Law

Legal rules and principles regulating the relationship between an employer and a group of employees/trade union = Collective Labour Law. Dws regulates relationships that arise as result of employees deciding to act collectively by forming trade unions and bargaining collectively with employer.Goals often differ.

Dws Collective LL deals with:

  • Legal nature of trade unions,
  • Enforceability of collective agreements,
  • Collective bargaining institutions
  • Legal consequences agv
  • Strikes
  • Lock-outs
  • Industrial action

Dws the body of rules regulates the collective relationships btw:

  • Employees/trade unions
  • Employers/employer’s organisations
  • Employers or employers org/trade unions
  • State/trade unions
  • State/employer’s org

Collective agreements often influence individual labour law relationships.

S23 Const governs labour relationships.

LRA protects the right to:

  • Freedom of association
  • Join and form trade unions
  • Strike
  • Picket

LRA object:

  • To give effect to S27 Const rights
  • Framework for employees/trade unions/employers/employer’s org to collectively bargain about matter of mutual interest nl:
  • Wages
  • T&C’s
  • And also to formulate industrial policy
  • Promotes:
  • Orderly collective bargaining
  • Bargaining at sectoral level
  • Employee-participation in decision making in workplace
  • Effective labour dispute resolution

LRA applies to all employees except (S2):

  • Members of National Defence Force
  • National Intelligence Agency
  • SA Secret Service

SU 13: Freedom of Association

13.1 FOA & Collective bargaining

  • LRA views collective bargaining as preferred method of establishing/changing T&C’s of employment, as well as for resolution of labour disputes.
  • Dws employees must be allowed to join trade unions.
  • Freedom of association = foundation of collective bargaining
  • Also most NB right given to people who want to join collective entity
  • Constitution s23 and LRA – right of employees/employers to join trade unions/employer’s org
  • FOA has 2 aspects:
  1. Employees/employers protected against state infringing on this right
  2. Employees’ right to FOA protected from infringement by employer

13.2 Protection of freedom of association of employees:

S4 LRA -Right to form and join a trade union

  • Membership subject to constitution of trade union. Dws they regulate who (types of employees) may join
  • S213 LRA: Trade Union=Ass of employees whose principal purpose is to regulate relations between employees and employers, incl employers’ organization.

Rights of trade union members

  • S4(2) LRA:
  • Participate in union’s lawful activities;
  • Participate in election of office bearers, officials or trade union representatives; and
  • Stand for election/be eligible for appointment as office bearer or official, and if selected, to hold the office
  • Stand for election/be eligible for appointment as trade union rep, and if selected, to carry out functions of representative i.t.o. LRA or collective agreement

Protection of freedom of association

  • S5 LRA prohibits actions that infringe FOA in S4
  • S5(1):
  • No discrimination against employee for exercising rights conferred by this Act(prospective and current employees)
  • Examples of actions falling in S5(1):
  • Employer dismissing employee because he joined TU
  • Employer failing to give employee annual bonus because he joined TU
  • Failing to grant merit increase/promote employee, because he was elected as TU rep (shop steward), or was selected chairman of TU’s regional committee
  • Employer harassing employee because he is rep, eg unfounded disciplinary charges
  • Employer paying employees for not participating in strike
  • S5(2) prohibits certain specific types of conduct that would undermine FOA
  • S5(2)(a): No person may require employee/prospective employee not to be member of TU, or to give up membership – eg ‘yellow-dog’ contract
  • S5(2)(b): No person may prevent any employee from exercising any right ito LRA, or prevent employee from participating in any proceedings ito LRA
  • S5(2)(c): Employees/job seekers may not be prejudiced because of TU membership, joining TU, participating in lawful TU activities, or exercising right ito LRA
  • S5(3): No person may promise advantage to employee, for that person not exercising right in Act
  • S5(4): Contractual provision invalid if contravenes FOA (irrespective of whether before/after LRA)
  • S187 LRA: Automatically unfair dismissal if employer acts contrary to these provisions protecting FOA

Freedom of ass and senior managers

  • Senior managers included in S4, but may cause difficulties due to conflict of interests (can’t sit on both sides of bargaining table)
  • Entitled to join unions and participate in affairs, but not interfere with contractual obligations. He still owes employer a duty to act in good faith.
  • To serve on TU, can breach this duty
  • Dws S4 rights are unconditional, but not unlimited
  • Eg may not refuse to conduct disciplinary enquiry where TU members are involved, may amount to incapacity
  • Eg may not take time off to tend to TU affairs, may amount to misconduct
  • Eg may not disclose employer’s confidential info to TU
  • But participation in TU doesn’t have to destroy the trust relationship

Freedom of association for employers

  • S6 & 7 LRA grant/protect employer rights to FOA - form, join participate in activities of employers organizations
  • S213 LRA defines employer’s organisation:
  • Any number of employers grouped together for the purpose, singly or with other purposes, of regulating relations between employers and employees/trade unions

Rights of unions and employers’ organizations

  • Rights ito S8 LRA
  • Includes right to
  • Determine own constitution and rules
  • Hold elections for office bearers/officials/reps
  • Plan and organize own admin and lawful activities
  • Participate in forming federations or join feds
  • Affiliate with and participate in activities of international workers organizations, employers’ organizations and international labour organization (ILO)
  • Autonomy

Freedom not to associate and freedom to disassociate

  • FOA = positive right; right protected from prohibiting State/employers from infringing it
  • FOA may also have negative aspects, nl right not to associate (FOnonA)
  • Dws no person may force an employee to belong to a TU, or to belong to a TU other than his choice
  • Infringed by closed shop agreement
  • Exists where employer/TU conclude collective agreement, ito which all employees must belong to that TU
  • But LRA makes provision for this, provided certain conditions are met
  • FODisassociation= trade union members prevent other employees to associate with them.
  • TU may also refuse membership or expel member according to constitution
  • Acceptable, eg where only allow certain industries to join, but not if ground is race/sex

Resolution of disputes about freedom of ass

  • S9 LRA – dispute resolution procedure
  • Conciliation by bargaining council, CCMA and lastly adjudication by Labour Court.

SU 14: Organisational rights

14.5 Organizational rights i.t.o.LRA

  • LRA grants 5 types of Organisational Rights(OR):
  1. TU access to workplace
  2. Deductions of TU subscriptions from salaries of employees
  3. Recognition of TU reps (ie shop stewards/shaft stewards)
  4. Granting of leave to these TU reps for certain purposes
  5. Procedure for gaining access to certain info held by employers
  • Employers can also grant other rights to TU, eg access to office/phone etc, but must be done through negotiation& agreement (dws not provided for in LRA)

Trade union access to workplace

There needs to be contact btw TU and members. Logical place = workplace

S12 LRA gives TU that is registered (and sufficiently representative or party to bargaining council), right of access to workplace.

Purpose:

  • Recruit new members
  • Communicate with existing members
  • Serve interests of members
  • Hold meetings with employees @ workplace, outside business hours
  • Members entitled to vote in ballot @ work

But right of access not unlimited, but subject to conditions

Right to access subject to any condition as regards time and place as is reasonable and necessary to protect life and property or prevent undue disruption of work.

Eg (SACTWU v Sheraton Textiles):

-48h notice, meetings over lunch or after work, 2 meetings per month, security screening.

Deduction of trade union subscriptions or levies

Primary income = membership fees

Stop-order facilities attractive for TUs.

S13 LRA grants TU’s right to stop-order facilities: TU member authorizes employer in writing to make deductions and pay over before 15th. May be revoked by 1m written notice.

Employer must supply TU with:

-List of union members,

-amounts deducted and paid and periods to which deduction relates

-copies of written notices of authorization/revocation

Trade union representatives

Reps in best position to represent TU and relay info to TU about workplace.

S14 LRA provides that: Members of TU (representing majority of employees) are entitled to elect reps if union has at least 10 members.

Number to be elected depends on number of TU members in workplace, eg:

  • 10-50 = 2 reps
  • 1000 = 12 reps (1add rep for every 500 add members)
  • Max = 20
  • Functions (s14(4)):
  • assist and represent employee in grievance/disciplinary proceedings,
  • monitor employer’s compliance with LRA and collective agreements,
  • report any contraventions of law/collective agreement to
  • employer
  • Representative TU
  • Authority/agency
  • perform any other agreed function.
  • S14(5) gives rep payed time off from work to perform these functions.

Diff btw TU reps and officials!

Officials = employees of TU

Reps = employees of employer

Leave for office bearers for union activities

S15(1) LRA says office-bearer of TU ‘is entitled to take responsible leave during working hours to perform functions of office’

S15(2) says TU and employer may agree to number of days leave

S21 if dispute arises

Disclosure of information

  • Need for info
  • TU need info from employer to perform functions properly
  • Eg financial position of employer, member’s personal life
  • Who is entitled
  • Only registered TU/representatives who rep majority of employees in workplace
  • What info
  • S16(2) LRA requires all relevant info to allow trade union rep to perform functions of S14 effectively
  • S16(3) says employer must disclose all relevant info to allow TU to engage effectively in consultation/bargaining
  • Dws link btw info and function
  • Certain types of info need not be disclosed:
  • Privileged info
  • Disclosure prohibited by law/court order
  • Confidential info that can cause harm to employee/employer
  • Private/personal info of employee (but may consent to it)
  • Disputes
  • To CCMA for conciliation
  • If fails, CCMA arbitration
  • S16(6)-S16(14) procedure – commissioner had discretion to order info to be disclosed (if not in exclusions list)

14.4 Acquisition of OR

Three ways:

  • TU may conclude collective agreement with employer in this regard
  • Obtain OR iro employer’s undertaking, because member of bargaining council/statutory council
  • By S21 procedure

OR in collective agreement

Approach employer & request grant of rights

If granted, collective agreement will take place

S20 envisages this method, but doesn’t prescribe any representivity req, dws TU with small representivity, can obtain Or this way

Parties to a bargaining council

S19 LRA provides TU that is party to a council:

  • Right of access to workplace
  • Deduction of union membership subscriptions iro workplaces in jurisdiction of council

Here also, representivity doesn’t matter

S21 procedure

S21 = referral of dispute by TU to CCMA (to settle bmo conciliation or arbitration).

Dws where OR requested and refused.

Preconditions – registration/representativeness of TU

Req 1: May only be claimed by registered TU or 2 or more acting together

Req 2: must have certain level of representativeness in workplace where they seek ORs

  • How represented?
  • What is a workplace?

Representativeness

Diff btw majority rep/sufficient rep

Majority rep:

  • TU must represent a majority of employees in workplace
  • 2 Ors depend on this, nl:
  • Right to elect TU reps
  • Right to disclosure of info

Sufficient rep:

  • Unclear as to what this entails, each situation unique (30% is very rough norm)
  • Up to CCMA to decide
  • Factors to consider:
  • Nature of workplace
  • Industry
  • Presence/absence of other TUs
  • Other 3 ORs need this, nl:
  • Access to workplace
  • Deduction of subscriptions
  • Leave for union office bearers
  • Treat TUs equally (same threshold)

The workplace

S213 LRA distinguishes btw public/private sectors

Public = national dept/provincial administration/provincial dept/org component ito Public Service Act

Private = place/places where employees work – geographically distinct workplaces does not necessarily constitute separate workplaces – business as whole is usually 1 workplace. Onus on person alleging otherwise to prove it.

The procedure

  • TU notifies employer in writing that it seeks ORs
  • Notice must specify
  • Which workplace
  • Representativeness of TU there
  • Rights TU wants to exercise
  • Manner in which it wants to exercise it
  • Attach copy if TU’s certificate of registration
  • Within 30days, employer must meet TU to conclude collective agreement
  • Employer may refuse (allege eg not representative enough)
  • No settlement – to CCMA for conciliation
  • If that fails – arbitration
  • S21 = peremptory – dws if TU fails to comply, CCMA can’t deal with dispute
  • Most difficult question for commissioner is representativeness. He must consider all factors and seek to minimize proliferation of TU representation in single workplace and minimize admin/financial burden on employer to grant OR
  • Employer may request CCMA to withdraw OR granted ito S21 previously

14.5 OR & Strikes

Strike prohibited ito demand for OR, because must be referred to arbitration.

Nevertheless, S65(2) permits TUs to strike to force employer to grant ORs. BUT if unsuccessful, loses S21 remedy for 1year from notice of strike.

SU 15: Collective bargaining and the law

15.2 A duty to bargain?

Drafters of LRA decided there is no duty to negotiate.

But LRA supports the role of collective bargaining as mechanism to regulate T&C’s and resolving disputes.

LRA encourages collective bargaining by:

  • Providing protection for right of employees to form/join/participate in TUs
  • Enabling TUs to get ORs, to force employers to bargain with it
  • Permitting employees to strike to force employer to negotiate with it
  • Regulating legal status/enforceability of collective agreements (making collective bargaining more effective)
  • Extending scope to sectors not previously covered, eg state employees

15.4 What is collective bargaining?

Collective bargaining = process by which 1 or more TUs engage in negotiations with 1 or more employer’s organisations, with purpose of regulating T&Cs of employment or matters of mutual interest. (Single employer can take part, but not single employee – inequality of power).

Collective bargaining can be wrt:

-ORs

-Grievances ito dismissal,

-Promotion,

-Demotion

Outcomes:

-Consensus

-Strike

-Arbitration

-Reserve right to raise issue later

Can take place @ various levels:

-Plant level/factory level – eg single factory etc

-Enterprise level – eg all factories of single employer

-Industry level – eg btw unions/employers of specific industry

15.5 Definition of collective agreement

S213 LRA:

Written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions on one hand, and on other hand,

one or more employers,

one or more registered employers organizations, or

both.

  • An agreement need not be signed to be valid – just in writing – not even needed in single doc
  • Only registered TUs can be party to collective agreement as per LRA – but other (non LRA) collective agreements can be made by non-registered TUs – but will not be enforceable ito LRA
  • Matters regulated/topics: terms and conditions of employment = substantive provisions e.g. remuneration/leave/working hours. Or any other matter of mutual interest= wider concept e.g. restructuring of workplace, granting of organizational rights etc

Collective agreements and conditions of employment: collective agreements vary the employment contract if contract less beneficial than collective agreement. Can not contract out of collective agreement. Issue regulated by collective agreement becomes part of employment contract if not regulated in contract.

15.6 Agency shop and closed shop agreements

Nature ofagency shop/closed shop agreements

Two special types of collective agreements

Agency shop authorized by LRA:

  • Collective agreement between employer/employers’ organization and representative trade union, known as agency shop agreement,
  • requiring employer to deduct agreed agency fee from wages of employees identified in agreement, who are not members of the union but eligible for membership thereof.

Closed shop authorized by LRA:

  • Collective agreement between employer/employers’ organization and representative trade union, known as closed shop agreement,
  • requiring all employees covered by the agreement to be members of the trade union.

In agency shop, employees not compelled to become members of TU (but fee deducted anyway).

In closed shop, all employees covered must become members of TU.

Arguments in favour of this:

  1. Dws both eliminate ‘free riders’ – employees reaping benefits of bargaining, without paying subscription.
  2. If all belong to one TU, relationship grows & consistent pattern of bargaining forms
  3. Supports bargaining by aiding development of strong TUs

Agency shops/closed shops and FOA

May infringe FOA – may lose job if doesn’t submit to closed shop bv. Not automatically unconstitutional. S23 Constitution limitation must comply with s36

Solution in S23(6):

  • National legislation (eg LRA) may recognize union security arrangements contained in collective agreements. If law limits such right, must comply with S36 Const.
  • Dws permitted ito Const and may be recognized by law (eg LRA)
  • Eg FOA may be limited by legislation as long as reasonable/justifiable in open/democratic society based on human dignity/equality/freedom

S36(1) – factors to consider:

  • Nature of right
  • Nature/extent of limitation of right
  • Importance/purpose of limitation
  • Relationship btw purpose and limitation
  • Less restrictive means

Ito agency/closed shop:

  • Purpose = to enhance collective bargaining

Agency and closed shops – requirements for validity

To limit possibility of S25&26 being declared unconstitutional, certain prerequisites must be met for valid agency/closed shops.

  • Agency shops:
  • Employer not obliged to enter into
  • Subject to negotiations btw employer/TU
  • If refuses, may strike (if proposed AS complies with S25)
  • Only non-union employees will be affected by AS
  • No agency fee will be deduced if employee does not qualify for membership of TU – dws won’t form part of AS
  • Only REGISTERED TU may conclude AS
  • TU must also be REPRESENTATIVE (must represent majority!)
  • If loses majority, AS may be terminated – employer must 1st give 90day period to regain majority, if fails, employer can give 30 day notice of termination.
  • Agency fee not more than subscriptions
  • Paid into separate account administered by TU
  • May only be used to protect/advance socio-economic interests of employees.
  • If doesn’t comply with S25(3) – not valid or binding
  • Consent of employee not required to deduct from wages – S34 BCEA prohibiting deductions, not applicable here
  • Closed shops
  • S26 limits unreasonableness of CS
  • Employer not obliged to enter into
  • Majority representativeness needed
  • Ballot must be held before CS concluded - 2/3 of employees must vote for closed shop.
  • S26(3)(c) provides for post-entry CS – dws employee need not be member on commencing employment – acquired afterwards
  • LRA prohibits pre-entry CS
  • Money for socio-economic interests of employees (also not for political purposes)
  • S26(5) – no TU who is party to CS, may refuse membership to person or expel member, unless for fair reasons – eg member conducted himself in manner that undermines TU’s exercise of rights – eg refuse to strike
  • Dismissal of employee refusing to join TU of CS or refused membership/expelled by TU, is fair.
  • Employees already employed @ time of agreement, who refuse join TU of CS, may NOT be dismissed, but may be req to pay agency fee.
  • Dismissal in this context referred to bargaining council/CCMA for conciliation
  • If fails, to Labour Court for adjudication
  • S26 – additional TUs may join CS agreement

SU17: Strikes and lock-outs