Organisational Rights & Collective Bargaining

Introduction

In this assignment, I was asked to critically engage with the Labour Relations Act (LRA)[footnoteRef:1] provisions on Organisational Rights and Collective Bargaining. Having read the two cases that I was asked to analyze, it will be better for me to start with the first one then move to another. [1: Act 66, 1995 (“the Act”).]

I will give clarity about organizational rights and collective bargaining. Define the workplace and deal with different sections from the Labour Relations Act, (LRA)[footnoteRef:2] and the Constitution[footnoteRef:3] of the Republic of South Africa. [2: Act 66, 1995.] [3: Constitution 1996.]

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The early twentieth-century patent the security of worker’s rights to form trade unions and engaged in collective bargaining were restricted to white employees. South Africa did not recognize or endorse freedom of association and collective bargaining. The democratic elections in 1994 surfaced the way to success, a task team was selected to restructure the labour legislation. After doing that, South Africa became a leader in applying international constitutional and labour standards[footnoteRef:4] cliffdekkerhofmeyr.com. [4: https:// www.cliffdekkerhofmeyr.com/en/news/publications/...]

The Labour Relations Act,[footnoteRef:5] was followed by the introduction of various Acts, Basic Conditions of Employment Act,[footnoteRef:6] 75 of 1997, Employment Equity Act,[footnoteRef:7] 55 of 1998 and Skills Development Act,[footnoteRef:8] 97 of 1998. [5: Act, 66 of 1995.] [6: Act, 75 of 1997.] [7: Act, 55 of 1998.] [8: Act, 97 of 1998.]

Organizational Rights

Organizational rights are the umbrella term for a number of rights deliberated to trade unions. A registered trade union who seeks organisational rights at the workplace needs to comply with section 21[footnoteRef:9] of the Labour Relations Act (LRA). [9: Act 66, 1995, Exercise of rights.]

Sec 21(1-10) state the following:

1. Any registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by this Part in a workplace.
2. The notice referred to in subsection (1) must be accompanied by a certified copy of the trade unions certificate of registration and must specify-
   1. a) the workplace in respect of which the trade union seeks to exercise the rights;
   2. b) the representativeness of the trade union in that workplace, and the facts relied upon to demonstrate that it is a representative trade union; and
   3. c) the rights that the trade union seeks to exercise and the manner in which it seeks to exercise those rights.
3. Within 30 days of receiving the notice, the employer must meet the registered trade union and endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that workplace.
4. If a collective agreement is not concluded, either the registered trade union or the employer may refer the dispute in writing to the Commission.
5. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on the other party to the dispute.
6. The Commission must appoint a commissioner to attempt to resolve the dispute through conciliation.
7. If the dispute remains unresolved, either party to the dispute may request that the dispute be resolved through arbitration.
8. If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner-
   1. a) must seek
      1. (i) minimizeise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and
      2. (iminimizenimise the financial and administrative burden of requiring an employer to organizationaltional rights to more than one registered trade union;
   2. b) must consider-
      1. (i) the nature of the workplace;
      2. (ii) the nature of torganizational organizational rights that the registered trade union seeks to exercise;
      3. (iii) the nature of the sector in which the workplace is situated; and
      4. (iv) the organizational history at the workplace or any other workplace of the employer; and
   3. c) may withdraw any of the organizational rights conferred by this Part and which are exercised by any other registered trade union in respect of that workplace, if that other trade union has ceased to be a representative trade union.
9. In order to determine the membership or support of the registered trade union, the commissioner may-
   1. (a) make any necessary inquiries;
   2. (b) where appropriate, conduct a ballot of the relevant employees; and
   3. (c) take into account any other relevant information.
10. The employer must cooperate with the commissioner when the commissioner acts in terms of subsection (9), and must provide any information to the commissioner and facilities that are reasonably necessary for the purposes of that subsection.

Collective bargaining

Collective bargaining is at the centre of the labour relations system. It is an ongoing process of negotiations between representatives of workers and employers to establish the conditions of employment. Collective bargaining developed with the growth of trade unionism, especially from 1890.[footnoteRef:10] [10: https:/www.britannica.com.]

Sec 23 (5)[footnoteRef:11] of the Constitution states that Every trade union, employer’s organization and employer has the right to engage in collective bargaining. National legislation may be legislated to regulate collective bargaining. [11: Constitution, 1996.]

recognizes the right of trade unions to engage in voluntary collective bargaining. This system of voluntary collective bargaining is created via the instruments provided for in the LRA[footnoteRef:12] [12: Act, 66 of 1995, Mario Jacob’s notes Ph.D. Candidate Law Faculty and Sociology Department University of Cape Town.]

The issue(s) in dispute:

Case Abanqobi Workers Union obo Members/IR Voigts (Pty) Ltd[footnoteRef:13] (the applicant) claimed organisational rights from the respondent, which operated five farms in the KZN Midlands and performed contract work for various agricultural businesses. The union (AWU) recruited only the members working on the Mount Verde farm, but two of its members was transferred to other farms. [13: [2019] 9 BALR 942 (CCMA).]

The union (AWU) claimed that it was entitled to organizational rights in terms of the LRA,[footnoteRef:14]but the respondent was willing to grant only sec 13[footnoteRef:15] which deals with union subscriptions which the union (AWU) rejected. [14: Act, 66 of 1995.] [15: Act, 66 of the LRA.]

It is common cause that ratified conventions of the International Labour Organisation (ILO) are binding in South Africa. When interpreting both the Constitution[footnoteRef:16]of the Republic of South Africa, 1996 and the LRA[footnoteRef:17]… The two key conventions of relevance here, both of which have been ratified by South Africa, are the Convention on Freedom of Association and Protection of the Right to Organise 87 of 1948 and Collective Bargaining Convention 98 of 1949. [16: Constitution of the Republic of South Africa ,1996.] [17: Act, 66 of 1995.]

The union seeks sections 12[footnoteRef:18], 13, and 15 rights, because without having these rights it is difficult to recruit new members and to serve existing members. Sec 12 speaks about access to workplace, sec 13 speaks about the trade union subscriptions and sec 15 speaks about leave for trade union activities. In this case IR Voigts (the respondent) is willing to give the union sec 13 which speaks about deduction only meaning that the union will not have access to the workplace in order to recruit more members and their members will not be able to attend any union activities. [18: Act, 66 of 1995.]

The union must be sufficiently representative in order to access the minimum organisational rights in the LRA.[footnoteRef:19] These rights include trade union access to enter the workplace; hold meetings with employees outside their working hours… [19: Section 12 and 13 LRA. Sufficiently representative, generally is between 20 to 30 percent of the trade union membership at the workplace. ‘Mario Jacobs’ notes…]

In South African Industrial, Commercial and Allied Workers Union / Denny Mushrooms a Division of Libstar Operations (Pty) Ltd[footnoteRef:20] [20: [2018] 5 BLLR 543 (CCMA).]

The CCMA had to consider whether the South African Industrial Commercial and Allied Workers Union (SAICWU) should be granted organisational rights in terms of sec 12-15 of the LRA. The employer, Denny Mushrooms, refused to recognise SAICWU claiming that the union’s constitution does not include the agriculture sector and therefore could not be granted organisational rights.

Lufil Packaging (Isithebe), A division of Bidvest Paperplus (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[footnoteRef:21] [21: (2018) 39 ILJ 1786 (LC).]

In this case, also involving NUMSA as one of the parties, the CCMA was called to determine whether NUMSA could organise employees falling outside its registered scope. CCMA commissioner after hearing the arguments from both parties, ruled in NUMSA’s favour and granted the union organisational rights. Not happy with the outcomes or ruling, Lufil approached Labour Court (LC) seeking to review the commissioner’s ruling.

In his judgment Gush J sets out the essence of the review application he is required to determine as:

The applicant contended that the provisions of the third respondent’s constitution that sets out the third respondent’s scope of, and the industries in which it is entitled to organise, do not entitle the third respondent to those organisational rights contained in chapter 4 of the LRA. The applicant avers that the operations of the applicant do not fall within an industry in which the third respondent may organise or fall within the third respondent’s scope.

In addition, the applicant avers that the employees’ right to join the third respondent is limited by its constitution. Section 4 by the [sic] of the LRA records the employees’ right to freedom of association and includes the right to join a trade union “subject to its constitution”.[footnoteRef:22] [22: Para 9 and 10 of the judgment.]

Para 28, as far as locus standi is concerned, the conditions precedent to a union wishing to exercise organisational rights, in accordance with the LRA[footnoteRef:23], need to only satisfy two conditions: [23: Act, 66 of 1995 (“the Act”)]

• a) The u must be registered (see sec 11 14 16 18 and 21).

It is common cause that the third respondent is a registered union;

• b) The union must be sufficiently representative (sections 11, 12, 13, 15, 16, 18 and 21) …

In Police & Prisons Civil Rights Union v SA Correctional Services Workers Union & Others (POPCRU (CC))[footnoteRef:24] [24: (2018) 39 ILJ 2646 (CC) POPCRU (CC)).]

The case of POPCRU Constitutional Court (CC) began with a minority union, the South African Correctional Services Workers Union (SACOSWU) and the Department of Correctional Services concluding a collective agreement (the organisational rights agreement) that granted SACOSWU organisational rights to access the workplace for the purpose of representing its members in grievance and disciplinary proceedings and to the deduction of union subscriptions.

This was in spite of a collective agreement regulating thresholds for organisational rights concluded under s 18[footnoteRef:25] between POPCRU and the department. The threshold agreement had been extended to cover non-parties under s 23 (1) (d) of the LRA. POPCRU referred a dispute to the General Public Service Sectoral Bargaining Council, objecting to the organisational rights agreement. It alleged that the agreement was invalid as SACOSWU had not met (and did not meet) the representativeness threshold stipulated by the threshold agreement. However, the arbitrator found in favour of SACOSWU, drawing heavily on the Constitutional Court’s judgment in Bader Bop for support… [25: Act, 66 of 1995]

Second case:

The issue in dispute is:

Whether or not the union is entitled to elect shop stewards at Tolcon’s Mooi Toll Plaza.

In South African Transport and Allied Workers Union obo Members / Tolcon (Pty) Ltd[footnoteRef:26] [26: [2019] 8 BALR 897 (CCMA)]

The union is claiming the right to elect shop stewards at one of four divisions of the employer where it lacked majority to be able to elect shop steward. The respondent administers several road stations on N3. The applicant (SATAWU) concluded the agreement with the respondent in 2012 in respect of three of the stations in terms of which it was require to maintain a membership of 50% + 1 of the employees employed for the entire service contract.

In 2015 the respondent suspended the recognition agreement with the union and gave the union the notice that the agreement would be cancelled if the union did not restore its majority within 30 days, and refused the union’s request to elect the shop stewards at one of the stations.

In case Professional Transport and Allied Workers Union obo members / Professional Aviation Services.[footnoteRef:27] [27: [2016] 4 BALR 421 (CCMA)]

The Commissioner considered section 21 (8)[footnoteRef:28] of the LRA sets out factors which a Commissioner must take into account when resolving a dispute about whether or not a trade union is a representative trade union and held that a key consideration in such matters is the principle of majoritarianism. The commissioner also pointed out that in order to decide whether the applicant was entitled to organisational rights, he had to consider the meaning of “workplace”. [28: Act, 66 of 1995 ]

Section 213[footnoteRef:29] of the LRA states that ‘workplace’ means “the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation.” [29: See footnote 28 above.]

Constitutional Law:

Section 23[footnoteRef:30] of the Constitution regulates the right to fair labour practices, including the right of all trade unions to organise workers and to engage in collective bargaining. [30: Constitution, 1996.]

In South African Transport and Allied Workers Union obo Members / Tolcon (Pty) Ltd

The union is looking for the rights in sec 14 of the LRA. Sec 14 (2) states in any workplace in which at least ten members of a representative trade union are employed, those members are entitled to elect from among themselves.

Conclusion

Having read both cases, I found out that both unions are looking for rights even if they are different, because the first one is looking for organisational rights, while the second one is looking for the right to elect the shop steward. They both suffer from the same thing because they lack Sufficient Representative (SR) in order to access those rights. With the above in mind, in these cases I learnt how the Commission, Mediation and Arbitration (CCMA) and the labour courts consider disputes where the trade unions sought to obtain trade union rights outside their scope and how they deal with minority unions.

Bibliography

Statute

1. South Africa. (2015). Labour Relations Act No. 66 of 1995. Pretoria: Government Printer.
2. The Constitution of the Republic of South Africa, 1996, 14th Edition.

Case Law

1. Abanqobi Workers Union obo Members/IR Voigts (Pty) Ltd [2019] 9 BALR 942 (CCMA).
2. Lufil Packaging (Isithebe), A division of Bidvest Paperplus (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2018) 39 ILJ 1786 (LC).
3. Police & Prisons Civil Rights Union v SA Correctional Services Workers Union & Others (POPCRU (CC)) (2018) 39 ILJ 2646 (CC) POPCRU (CC)).
4. South African Transport and Allied Workers Union obo Members / Tolcon (Pty) Ltd [2019] 8 BALR 897 (CCMA).
5. Professional Transport and Allied Workers Union obo members / Professional Aviation Services [2016] 4 BALR 421 (CCMA).
6. South African Industrial, Commercial and Allied Workers Union / Denny Mushrooms a Division of Libstar Operations (Pty) Ltd

Other Source/s [2018] 5 BLLR 543 (CCMA).

Other Source/s

1. cliffdekkerhofmeyr.com.