LABOUR LAW ARR 214 Theme 5 THEME 5 O R G A N I S A T I O N A L R - - PowerPoint PPT Presentation

LABOUR LAW

ARR 214 Theme 5

THEME 5

O R G A N I S A T I O N A L R I G H T S , C O L L E C T I V E L A B O U R O R G A N I S A T I O N A L R I G H T S , C O L L E C T I V E L A B O U R L A W & C O L L E C T I V E B A R G A I N I N G P G L ( 2 0 0 6 : 2 0 7 - 2 1 9 , 2 2 9 - 2 4 6 ) ; W L ( 2 0 0 9 : 3 0 7 - 3 6 3 ) P L L ( 2 0 0 5 : 2 1 0 - 2 5 6 )

THEME 5 (LEARNING OUTCOMES)

• Explain the structures for collective bargaining in terms of the LRA.
• Know the related rights of trade unions and employers'
• rganisations.
• Explain the establishment and functions of bargaining councils and

statutory councils.

• Discuss the recognition of the duty to bargain.
• Define a collective agreement and discuss the legal effect thereof.
• Discuss the different organisational rights. Also give an indication
• f which organisational rights are accorded to representative,
• f which organisational rights are accorded to representative,

sufficiently representative and majority unions.

• Explain the different collective bargaining structures.
• Explain in detail the bargaining process. Also discuss the concept
• f collective bargaining, the parties involved and the powers of

councils.

• Be acquainted with the binding nature and extension of collective

agreements, agency shop agreements and closed shop agreements.

• Discuss the resolution of disputes about collective agreements.
• Distinguish between a closed shop agreement and an agency

agreement.

THEME 5 (INTRODUCTION)

• Emphasis of LRA is on co-operation and

constructive engagement between labour and management.

• New structures: Statutory councils and

workplace forums. Industrial councils replaced by bargaining councils. replaced by bargaining councils.

THEME 5 (COLLECTIVE BARGAINING I)

Recognition and duty to bargain (I)

• No legally enforceable duty to bargain BUT rights of

unions and agency shop agreements.

• Must grant rights to unions, but do not have duty to

negotiate.

• Refusal to bargain = power play.
• Advisory award to negotiate will not be ignored. Potential

importance of this form of advisory arbitration becomes clear when one considers that refusal to bargain includes (s 64(2)):

• Refusal to recognize a union as a collective bargaining agent
• Refusal to establish a bargaining council
• Withdrawal of recognition of a collective bargaining agent
• Resignation of a party from a bargaining council
• Disputes concerning appropriate bargaining units, levels and topics

THEME 5 (COLLECTIVE BARGAINING II)

Recognition and duty to bargain (II)

• Recognition of union is beginning of collective bargaining.
• Employer must only accord rights of recognition to “representative” registered unions
• 30% membership Registered union wishing to establish statutory council

must have a membership of at least 30% in relevant industry. Two/more unions may join together for this purpose. 30% membership is used only in the context of statutory councils. However, throughout Act mention is only made of majority unions or sufficiently representative unions.

• Sufficient representative Only registered union which is sufficiently

representative of employees at workplace may demand some

• rganisational rights. Definition of “sufficient representation” is not
• rganisational rights. Definition of “sufficient representation” is not

provided, but the spirit of this chapter in the Act indicates that a union with a significant membership base, albeit short of a majority, will be considered a sufficiently representative union. Usually 30% representation and more. Two or more unions may act jointly in order to establish sufficient representation.

• Majority membership Majority presents no problem and indicates clear

majority of union members in workplace, that is when 50% plus one of the employees in workplace have joined the union. Only registered unions with majority support in workplace will be able to demand statutory rights with regard to agency shop, closed shop and workplace forum arrangements. Two or more unions may join to establish majority support in order to be accorded these rights. Furthermore, rights to disclosure of information, to appoint workplace representatives and to paid leave for representatives are enjoyed only by a majority union.

THEME 5 (ORGANISATIONAL RIGHTS I)

• See definition of workplace on PGL 231.
• The organisational rights are as follows:
• Access to the workplace (SR & M) To

recruit/communicate/serve interests of members. Meetings

• utside working hours of premises. Reasonable i.r.o. time
• utside working hours of premises. Reasonable i.r.o. time

and place.

• Deduction of union subscriptions from members’ wages

(SR & M) Employee may authorise employer to deduct

• levies. Employer must remit deducted amount to union before

15th of following month.

• Leave during working hours for office bearers (SR & M)

Reasonable leave for performing functions. Union and employer must agree on no of days’ paid leave.

THEME 5 (ORGANISATIONAL RIGHTS II)

• Organisational rights (cont) II:
• Disclosure of information (M) Info to perform functions effectively. When

consulting/bargaining with employer. No info if:

Legally privileged Prohibition by law/court order Substantial harm Private personal info of employee

• Appointment of representatives at workplace (M)
• Appointment of representatives at workplace (M)

1 rep - 10 members 2 rep - >10 < 50 50 members – 2 rep + 1 >50 (max 7 rep)

300 members – 7 rep + 1 >100 (max 10 rep) 600 members – 10 rep + 1>200 (max 12 rep) > 1000 members – 12 rep + 1>500 (max 20 rep) See functions of representative PGL234.

THEME 5 (ORGANISATIONAL RIGHTS III)

• Organisational rights (cont) III:
• Exercise of organisational

rights (SR & M) Notify employer in writing.

• Resolution of disputes (SR & M)

Refer to CCMA for conciliation/arbitration.

THEME 5 (COLLECTIVE BARGAINING STRUCTURES I)

• Bargaining councils
• One/more registered trade unions and one/more

registered employers’ organisations may establish bargaining council for a sector and area by :

adopting a constitution that meets the requirements

• btaining registration of the bargaining council.
• btaining registration of the bargaining council.
• Bargaining council may be established for more than one

sector and the State may be party to any bargaining council if it is an employer in that sector and area.

• Primary function is conclusion of collective

agreements (peace-keeping function).

THEME 5 (COLLECTIVE BARGAINING STRUCTURES II)

• Bargaining councils (cont)
• Powers and functions include the following:

To conclude collective agreements To enforce those collective agreements To prevent and resolve labour disputes To perform the dispute resolution functions To establish and administer a fund to be used for resolving disputes To promote and establish training and education schemes To promote and establish training and education schemes To establish and administer pension, provident, medical aid, sick pay, holiday, unemployment and training schemes etc To develop proposals for submission to NEDLAC/any other appropriate forum on policy and legislation that may affect the sector and area To determine by collective agreement the matters which may not be an issue in dispute for the purposes of a strike or a lock-out at the workplace To confer on workplace forums additional matters for consultation To provide industrial support services within the sector To extend the services and functions of the bargaining council to workers in the informal sector and home workers.

THEME 5 (COLLECTIVE BARGAINING STRUCTURES III)

• Statutory councils
• Representative Trade Union/Employers’ Organisation

may apply to Registrar in prescribed form for the establishment of statutory council in sector and area in respect of which no council is registered.

• Powers and functions

Promote dispute resolution functions Promote and establish training and education schemes Establish and administer pension, provident, medical aid, sick pay, holiday and unemployment schemes and funds Conclude collective agreements to give effect to abovementioned (Collective bargaining)

THEME 5 (COLLECTIVE BARGAINING STRUCTURES IV)

• Workplace forums
• Consultative body rather than negotiating

body.

• Attempt to democratise ground level labour

management relations. (Curb union’s management relations. (Curb union’s conflictual manner of operating and managerial prerogative).

• Employers must sometimes consult, and

sometimes consult to reach agreement, with workplace forum (See Theme 6).

THEME 5 (BARGAINING PROCESS

• Bargaining unit
• In workplace. Cohesive group of employees sharing community of interests.
• Bargaining level
• Plant / enterprise OR sector / industry
• Bargaining agenda
• Mutual interest
• Bargaining conduct
• Good faith

THEME 5 (COLLECTIVE AGREEMENTS I)

• ‘Collective agreement' means written

agreement concerning terms and conditions

• f employment or any other matter of

mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand- and, on the other hand-

• one or more employers
• one or more registered employers' organisations
• one or more employers and one or more registered

employers' organisations

THEME 5 (COLLECTIVE AGREEMENTS II)

Legal effect of collective agreements

• Collective agreement binds:
• Parties to collective agreement
• Each party to agreement and members of every other party to

agreement, in so far as provisions are applicable between them

• Members of registered trade union and employers who are

members of registered employers' organisation that are party to agreement if agreement regulates: terms and conditions of employment conduct of employers in relation to their employees/conduct conduct of employers in relation to their employees/conduct

• f employees in relation to their employers
• employees who are not members of the registered trade union
• r trade unions party to the agreement if:

Employees are identified in the agreement Agreement expressly binds the employees Trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.

• Collective agreement binds for the whole period of agreement.
• A collective agreement varies any contract of employment .

THEME 5 (COLLECTIVE AGREEMENTS III)

Agency Shop agreements

• No statutory obligation upon employer/employers’
• rganisation to conclude agency shop agreement.
• Employer is required to deduct agency fee from the

wages of non-union employees and pay it over to union that is party to agreement.

• Employees who are non-union members must be
• Employees who are non-union members must be

identified in the agreement and they must be eligible for union membership.

• Agency shop agreement is binding only if it provides

that:

• non-union employees are not compelled to become members
• f the trade union
• agreed agency fee may not be an amount in excess of the

subscription payable by union members

• See PGL p241

THEME 5 (COLLECTIVE AGREEMENTS IV)

Closed Shop agreements

• Registered majority union may negotiate and conclude

closed shop agreement with employer.

• Closed shop agreement is binding only if ballot is held

amongst employees covered by the agreement and two thirds of them support such an arrangement.

• No deductions made from employees’ wages in terms
• f closed shop agreement may be paid to political
• f closed shop agreement may be paid to political

parties as affiliation fees/for election of person to political office.

• Act expressly states that it is not unfair for employer to

dismiss employee who refuses to join the union which is party to the closed shop or who is refused union membership or who is fairly expelled from the union.

• See PGL p241-242

THEME 5 (DISPUTE RESOLUTION)

• If there is no agreement on a

procedure the CCMA will have exclusive jurisdiction to resolve the dispute.

• Resolution of disputes about
• Resolution of disputes about

collective agreements – see flow diagram in PGL p 243.

NEXT LECTURE

• Worker participation