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' organisations. • 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 of which organisational rights are accorded to representative, of 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 of 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)): o Refusal to recognize a union as a collective bargaining agent o Refusal to establish a bargaining council o Withdrawal of recognition of a collective bargaining agent o Resignation of a party from a bargaining council o 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 o 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. o Sufficient representative Only registered union which is sufficiently representative of employees at workplace may demand some organisational rights. Definition of “sufficient representation” is not organisational 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. o 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: o Access to the workplace (SR & M) To recruit/communicate/serve interests of members. Meetings outside working hours of premises. Reasonable i.r.o. time outside working hours of premises. Reasonable i.r.o. time and place. o Deduction of union subscriptions from members’ wages (SR & M) Employee may authorise employer to deduct levies. Employer must remit deducted amount to union before 15 th of following month. o 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: o 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 o Appointment of representatives at workplace (M) o 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: o Exercise of organisational rights (SR & M) Notify employer in writing. o Resolution of disputes (SR & M) Refer to CCMA for conciliation/arbitration.
THEME 5 (COLLECTIVE BARGAINING STRUCTURES I) • Bargaining councils oOne/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 � obtaining registration of the bargaining council. � obtaining registration of the bargaining council. oBargaining 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. oPrimary function is conclusion of collective agreements (peace-keeping function).
THEME 5 (COLLECTIVE BARGAINING STRUCTURES II) • Bargaining councils (cont) o 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 oRepresentative 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. oPowers 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 oConsultative body rather than negotiating body. oAttempt to democratise ground level labour management relations. (Curb union’s management relations. (Curb union’s conflictual manner of operating and managerial prerogative). oEmployers must sometimes consult, and sometimes consult to reach agreement, with workplace forum (See Theme 6).
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THEME 5 (BARGAINING PROCESS � • Bargaining unit o In workplace. Cohesive group of employees sharing community of interests. • Bargaining level o Plant / enterprise OR sector / industry • Bargaining agenda o Mutual interest • Bargaining conduct o Good faith
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