COLLECTIVE LABOUR LAW

by

SARVESH NAIR

ASSIGNMENT

Submitted in partial fulfilment of the requirements for the subject

Collective Labour Law (JML 503)

for the degree

MAGISTER LEGUM

in

LABOUR LAW

in the

FACULTY OF LAW

at the

NELSON MANDELA METROPOLITAN UNIVERSITY

October 2015

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Declaration by student:

I hereby declare the following:

This is my own work and I have not copied any parts thereof from anyone else;

I have referenced all direct quotations and paraphrased explanations of another’s work

I understand that plagiarism is a violation of the university disciplinary code and that should I be guilty thereof that I will be subject to any disciplinary steps that the university may institute against me,

Student’s name: Sarvesh Nair

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Table of contents

1 QUESTION 1 (A)1 1 Introduction……………………………………………….…………………4

1 2 Legislation…………………….…………………………………………….4

1 3 Relevant Case Law………………………………...………………………6

1 4 The Labour Courts Finding….………….…………………………………7

1 5 Conclusion……………..……………………………………………………8

2 QUESTION 1 (B)2 1 Introduction………………….………………………...……………………9

2 2 Legislation.................................................................................………9

2 3 Relevant Case Law………….………………………….……………..…10

2 4 The Courts Ratio Decidendi …......................……………………….…11

2 5 Conclusion….…………………………………………………………..…12

3 QUESTION 2 3 1 Introduction…….…..……...………………………………………………13

3 2 Definition of Collective Bargaining………..……………….……………13

3 3 Pre-Democracy………….……………..…………………………………13

3 4 Post-Democracy..……………….……..…………………………………14

3 5 New Dispensation..……….………………………………………………16

3 6 The Framework…………………...………...…….………………………18

3 7 A South African Duty to Bargain ………………………………………..19

3 8 Collective Bargaining Highlights in South Africa…….…………...……20

4 BIBLIOGRAPHY………………………………......………………............……..22

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QUESTION 1 (A)

1 1 Introduction

In answering the question of whether the agreement between Deli Enterprises and SSWU

is valid, the legal provisions relating to the dispute will be set out, followed by a succinct

discussion on relevant case law and lastly an application of the aforegoing to the set of

facts will be made.

1 2 Legislation

The Constitution of the Republic of South Africa, 1996 (hereafter the Constitution)

guarantees freedom of association, the rights of employees to form and join trade unions,

to strike, and the rights of trade unions, employers and employers' organisations to bargain

collectively.1

The Labour Relations Act 66 of 1995 (hereafter the LRA) gives effect to these

Constitutionally entrenched rights and recognises and provides for the creation of parties to

the collective bargaining process at industry level viz: trade unions and employers

organisations. Chapter II of the LRA sets out the fundamental right of freedom of

association. Part A of Chapter III of the LRA sets out certain organisational rights such as

the right to access to the workplace,2 the right to have trade union subscriptions deducted

by the employer and paid over to the union,3 the right of the members to elect trade union

representatives4 (shop stewards), the right of the office-bearers to be granted leave for

trade union activities,5 and the right to the disclosure of information.6

Section 18 of the LRA permits an employer and a trade union whose members constitute a

majority in the employer’s workplace to enter into a collective agreement which sets

1 Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1.2 S 12 of the Labour Relations Act 66 of 1995 (hereafter the LRA).3 S 13 of the LRA.4 S 14 of the LRA.5 S 15 of the LRA.6 S 16 of the LRA.

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thresholds of representivity for the acquisition of the organisational rights that do not require

majority representivity.7 These are usually referred to as “threshold agreements”.8

As mentioned supra but with more specificity, section 19 of the LRA provides that a union

that is party to a bargaining council is entitled to require an employer to deduct union

membership dues from the salaries of members of that union and to pay these dues over to

the union.9 Its officials are also entitled to access to the premises of an employer in order to

recruit members, to communicate with members, or otherwise to serve the interests of its

members if the employer’s workplace falls within the jurisdiction of the bargaining council.10

These rights accrue automatically once the union becomes party to the council and they

are not dependent on the union meeting any representivity requirement within any

workplace.11

In terms of section 20 of the LRA, organisational rights can be granted and regulated in a

collective agreement. No representivity requirements need be met before an employer and

a trade union are permitted to enter into such an agreement.12

Section 23(1)(d) of the LRA allows employers and majority unions to extend collective

agreements concluded between them to employees who are not members of the majority

union. This includes members of a minority union. Minority unions and their members are

bound by such collective agreements even if they do not wish to be and even if their

members are capable of exerting powerful pressure by industrial action in support of their

own interests.13

Linked to this is the fact that, in terms of s 65(2)(a) of the LRA, trade unions may embark on

a protected strike in order to force an employer to enter into such an agreement. It is

possible that a union with relatively low levels of representivity which would not be entitled

to claim organisational rights in terms of section 21 could still have sufficient power within 7 S 18 of the LRA.8 S 18(1) of the LRA; See also Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1; see also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 7.9 S 19 of the LRA.10 S 19 of the LRA; see also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 7.11 Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 712 Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1.13 S 23(1)(d) of the LRA; Note that s 65(3)(a) of the LRA also prohibits strike action if the employees concerned are bound by a collective agreement which regulates the issue of dispute – this includes agreements extended in terms of section 23(1)(d).

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the workplace to force an employer to grant these rights through strike action. This aspect

will be fully addressed in the second part of the question.

1 3 Relevant Case Law

Interestingly, the facts in Police & Prisons Civil Rights Union v Ledwaba14 (hereafter

POPCRU) bear a striking resemblance to the set of facts in the question posed. For the

sake of brevity, the facts of the POPCRU case may be summarised as follows. The

employer in casu, the Department of Correctional Services (the Department), operated in

terms of a bargaining and dispute-resolution structure composing of two bargaining

councils and a central bargaining forum viz the Departmental Bargaining Chamber (DBC).15

In short, the majority union POPCRU, was a member of these bargaining structures and

the minority union SACOSWU was not. POPCRU and the Department entered into a series

of resolutions and thresholds of representativeness for entry into the DBC and

organisational rights were agreed upon.16

In 2010 SACOSWU (the minority union) concluded a collective agreement with the

Department and secured itself organisational rights, despite not meeting the threshold of

representativeness nor having been admitted to the DBC. Unsurprisingly, POPCRU

challenged this agreement, on the basis that it was in breach of their pre-existing and

binding collective agreements with the Department.

The bargaining council arbitrator held that the collective agreement between the

Department and SACOSWU had been validly concluded in terms of section 20 of the LRA

and, in keeping with the finding of the Constitutional Court in National Union of

Mineworkers v Bader Bop (hereafter Bader Bop), it was binding on the parties.17 The

arbitrator in POPCRU held that to deny the minority union such rights would contravene

section 23(5) of the Constitution, which provides that every trade union has the right to

engage in collective bargaining.

14 Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC) (hereafter POPCRU).15 See the POPCRU case; Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1.16 The application of these agreements was extended to all employees of the Department in terms of section 23(1)(d) of the LRA.17 National Union of Mineworkers v Bader Bop 2003 24 ILJ 305 (CC) (hereafter the Bader Bop case); The Bader Bop judgment recognised that a minority union can lawfully strike or conclude an agreement to secure organisational rights in circumstances where they do not meet the statutory threshold.

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1 4 The Labour Courts Finding

The Court dealt with SACOSWU’s argument that it was entitled to enter into the collective

agreement because of the provisions of section 20 of the LRA. Succinctly put, the court’s

reasoning can be summarised as follows: the court found that whilst it is clear that a

minority union is entitled to seek to bargain collectively and to enter into a collective

agreement on the issue of organisational rights there is nothing special or unique about

such a collective agreement. It remains a collective agreement subject to the provisions of

the LRA.18

Moreover, the court held that there were two sets of collective agreements entered into by

the Department in terms of section 20, one being with a majority union, the other with a

minority union. In these circumstance the agreement entered into with SACOSWU was

incompatible with those entered into with POPCRU within the DBC.19

The court’s reasoning included the fact that the threshold agreement as envisaged in

section 18 of the LRA setting certain representivity requirements that had to be met before

SACOSWU was entitled to organisational rights.20 SACOSWU was simply bound by this

agreement and they failed to meet the requirements of the threshold agreements.21

Furthermore, the court held that the pre-existing agreements existed prior to the

SACOSWU agreement. These agreements created an “existing dispensation” which the

SACOSWU agreement sought to infringe. As the court put it “…what already exists and

continues to exist, as a general proposition, must be upheld.”22

Additionally, the court held that the agreements entered into with POPCRU had been

extended in terms of s 23(1) (d) of the LRA and were binding on SACOSWU and its

members.23

18 POPCRU case par 41-63; See also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 7.19 POPCRU case par 41-63; See also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 7; Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1.20 POPCRU case par 41-63; See also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 7.21 Ibid. 22 POPCRU case at par 56.23 S 23(1)(d) permits an employer and a union to extend a collective agreement they have entered into to employees who are not members of that union, provided that the union has as members the majority of the employees in the workplace; See also See also Le Roux “Organisational Rights for Minority Unions” 2014 CLL

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The court recognised a hierarchy of agreements and placed the DBC agreements with the

majority union, higher in the hierarchy than an agreement with a minority union thereby

giving it preference in the pecking order.

These views were summarised in the following extract –

“My conclusion thus is that because of the existence of POPCRU as a recognised and majority representative trade union in the Department and because of the existence of already concluded collective agreements with POPCRU determining thresholds of representativeness and organisational rights, and which have been made applicable and binding on non-parties, the Department and SACOSWU were not entitled to conclude a collective agreement on organisational rights. Even if I am not correct in this conclusion, and the Department and SACOSWU were as a matter of general principle entitled to conclude the SACOSWU collective agreement, this agreement would still be invalid and unenforceable for these very same reasons. To apply this agreement would negate and breach the POPCRU collective agreements. It would also fly in the face of Sections 18(1) and 23(1)(d) of the LRA in terms of which SACOSWU and/or its individual members are bound by such POPCRU collective agreements. Added to this is the fact that POPCRU is a majority, representative union. These issues must therefore taint the SACOSWU collective agreement even if competently concluded, with invalidity.”24

The arbitrator’s award was thereafter set aside by Snyman AJ and substituted it with an

order to the effect that the SACOSWU agreement was invalid and that SACOSWU was not

entitled to exercise organisational rights unless it met the degree of representivity set by the

DBC agreements while these agreements remained in force.25

1 5 Conclusion

Snyman AJ found that the collective agreements concluded between the employer and the

majority trade union had the effect of binding the minority union.26 Also of importance, is

Snyman AJ’s unequivocal endorsement, with reference to decided cases, of the principle of

majoritarianism, especially with regards to the validity of collective agreements.27 In sum

and according to the authority cited supra, it would appear that the agreement between Deli

Enterprises and SSWU is invalid.

23 7. POPCRU case at par 56.24 POPCRU case par 66.25 See the order of court in POPCRU at par 71; see also See also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 7.26 With reference to s 18 of the LRA.27 Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1.

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QUESTION 1 (B)

2 1 Introduction

As the validity of the agreements concluded between the parties have been addressed in

the answer supra, and in the event of one assuming that Deli Enterprises refused to grant

SSWU the rights it sought to exercise, the viability of strike action will now be addressed.

The right to strike is said to be a powerful economic weapon that may be used against an

employer in order to coerce them to agree to certain demands.28 An employer may choose

the lesser of two evils in agreeing to a compromise with employees or a union rather than

suffering the consequences of a strike. There is no common law right to strike in South

Africa, however specifically bespoke legislation does provide for same.29

2 2 Legislation

Section 23(2)(c) of the Constitution of the Republic of South Africa, 1996 states that “every

worker has the right to strike”.30 Section 64(1) of the Labour Relations Act 66 of 1995

(hereafter the LRA) states that “every employee has the right to strike”.31 According to van

der Walt et al employees thus have a constitutional right to strike that is supported by the

LRA.32

In terms of section 65(2)(a) of the LRA, trade unions may embark on a protected strike in

order to force an employer to enter into an agreement.33

The LRA defines a strike as:

“[a]… partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any

28 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) 203.29 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) ch 16; see also Basson, Christianson, Dekker, Garbers, le Roux, Mischeke and Strydom Essential Labour Law 5ed (2009) 303; see also Du Doit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law 6ed (2015) ch 5.30 S 23(2)(c) of the Constitution of the Republic of South Africa, 1996. 31 S 64(1) of the LRA; Note the difference in terminology of the Constitutional provision when compared with the LRA provision “worker” and “employee”.32 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) 203.33 S 65(2)(a) of the LRA.

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matter of mutual interest between employer and employee, and every reference to "work" in this definition includes overtime work, whether it is voluntary or compulsory”34

It is possible that a union with relatively low levels of representivity which would not be

entitled to claim organisational rights in terms of section 21 could still have sufficient power

within the workplace to force an employer to grant these rights through strike action. As a

peripheral point, if the employer refuses to grant an organisational right(s), and the option

to strike is not available, the union may refer a dispute to the Council for Conciliation,

Mediation and Arbitration (hereafter referred to as the CCMA) and, if the dispute remains

unresolved, a CCMA commissioner issuing a binding arbitration award refusing or granting

all or some of these rights. There is however a proviso in that in order to qualify for these

rights the union must meet certain representivity requirements within the employer’s

workplace. 35

2 3 Case Law

The case referred to in the answer above, Police & Prisons Civil Rights Union v Ledwaba36

(hereafter POPCRU) dealt with the issue of whether a minority trade union could embark

on a strike in order to obtain organisational rights.

For the sake of brevity, the facts of the POPCRU case is once again summarrised as

follows. The employer, the Department of Correctional Services (the Department), operated

in terms of a central bargaining forum viz the Departmental Bargaining Chamber (DBC).37

In short, the majority union POPCRU, was a member of these bargaining structures and

the minority union SACOSWU was not. POPCRU and the Department entered into a

threshold agreement of representativeness for entry into the DBC.38 SACOSWU (the

minority union) later concluded a collective agreement with the Department and secured

itself organisational rights, despite not meeting the threshold of representativeness nor

34 S 213 of the LRA; The three separate elements of a strike are (i) a refusal to work or the partial or complete concerted refusal to work or retardation or obstruction of work (ii) concerted or collective action (iii) for a specific purpose, or for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee.35 See s 21 of the LRA; It is possible that two or more unions may act jointly in meeting the representivity requirements; See also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 65.36 Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC) (hereafter POPCRU).37 Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC) (hereafter POPCRU); Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1.38 The application of these agreements was extended to all employees of the Department in terms of section 23(1)(d) of the LRA.

10

having been admitted to the DBC. POPCRU challenged this agreement, on the basis that it

was in breach of their pre-existing and binding collective agreements with the Department.

The bargaining council arbitrator held that the collective agreement between the

Department and SACOSWU had been validly concluded in terms of section 20 of the LRA

and, in keeping with the finding of the Constitutional Court in National Union of

Mineworkers v Bader Bop (hereafter Bader Bop), was binding on the parties.39

2 4 The Courts Ratio Decidendi40

The court in POPCRU attempted to strike a balance between collective bargaining and the

right to strike. The court accepted the overriding importance of collective bargaining and

collective agreements.41

In support of the importance of collective agreements, the court pointed out that a collective

agreement can regulate or even preclude the right to strike, can amend certain basic

conditions of employment found in the Basic Conditions of Employment Act, 75 of 1997,

can contract out of the dispute resolution provisions of the LRA, in the case of closed shop

agreements can compel an employee to belong to a specific union or unions and, in certain

circumstances, can be extended to employees who are not members of the union or unions

that entered into the agreement.42

This led the court to conclude that a collective agreement concluded with a majority union

which regulates, or even excludes organisational rights being provided to a minority union,

must take precedence over the rights of the minority union.43

39 The Bader Bop judgment recognised that a minority union can lawfully strike or conclude an agreement to secure organisational rights in circumstances where they do not meet the statutory threshold; The arbitrator in POPCRU held that to deny the minority union such rights would contravene section 23(5) of the Constitution, which provides that every trade union has the right to engage in collective bargaining.40 Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case that determines the judgment" or "the principle that the case establishes".41 POPCRU case at par 24.42 POPCRU case at par 27 and 28; See also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 7; Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1.43 Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23; Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1.

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The court thereafter proceeded to determine the constitutional courts ratio44 in National

Union of Mineworkers v Bader Bop 2003 24 ILJ 305 (CC) (hereafter referred to as the

Bader Bop case). The court concluded that the Bader Bop decision did not deal with the

deprivation of minority union organisational rights due to a collective agreement entered

into with a majority union. 45 Instead it dealt with the question of whether a minority union

could strike in order to obtain these rights in situations where it would not be entitled to

these rights (by reason of lack of representivity) in terms of section 21 of the LRA.46

Moreover, the court pointed out that in casu,47 no such strike could take place because it

was prohibited by virtue of the provisions of the LRA. The court reiterated that section

65(3)(a) of the LRA provides that a person may not embark on a protected strike if that

person is bound by a collective agreement which regulates the issue in dispute. The court

found that the collective agreements entered into within the DBC regulated the granting of

organisational rights and SACOSWU and its members were bound by them. If

organisational rights were to be granted, the Department would be in breach of the

agreement.48

Finally the court held that collective bargaining and strike action should be for a legitimate

purpose. Here the legitimacy of the collective agreement entered into between the

Department and SACOSWU “was dispelled” by the fact that SACOSWU was bound by the

DBC agreement.49 Furthermore, the demand by SACOSWU for organisational rights was

unlawful because it would require the Department to breach the DBC collective

agreements.50 According to the Court, the reliance on the Bader Bop decision by the

arbitrator constituted a material error of law and rendered the award reviewable and was

not binding in the circumstances.51

44 Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case that determines the judgment" or "the principle that the case establishes".45 POPCRU at par 30; Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 65.46 Ibid. 47 The Latin translation of in casu is “in the event or in this case”.48 Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 65; Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1.49 POPCRU at par 37; See also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 65.50 Ibid. 51 POPCRU at par 40; See also Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 65.

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In the judgment of Transnet SOC Ltd v National Transport Movement52 a minority union

also sought to acquire organisational rights through strike action. Similar to the POPCRU

case, the facts are summarised as follows. The employer entered into a recognition

agreement with a number of unions which set out certain thresholds of membership

required for the acquisition of organisational rights. The National Transport Movement

(NTM), a breakaway union requested organisational rights form the employer. The

employer refused to grant these rights based on the representivity requirement set in the

recognition agreement. The NTM referred a dispute to the CCMA and gave notice of its

intention to continue striking. The employer approached the Labour Court for an order

interdicting the strike arguing that the strike was unprotected as it sought to compel the

employer to perform an unlawful act or in other words to breach the collective agreement

with the remaining unions.

The court considered section 65 of the LRA which provides that no person may take part in

a strike if that person is bound by a collective agreement that prohibits a strike on the issue

in dispute, or if the agreement regulates the issue in dispute.53 The union however was not

a party to the agreement and moreover, the agreement had also not been extended in

terms of section 23(1)(d) to those employees who were not members of the unions that

were party to the agreement. The court concluded that those employees were therefore not

bound by the agreement.

Finally, the court considered the employers reliance placed on section 18 of the LRA54 and

the assertion that the threshold should be applicable to any trade union seeking

organisational rights. The court indicated that the threshold established does indeed

constitute an agreement as contemplated in section18 however, it does not limit any

exercise of the right to strike by the union.55 The court reasoned that section 18

contemplates a single majority union and not numerous unions acting jointly.56 It was held

that even if section 18 permitted agreements between an employer and two or more

minority unions acting jointly, there is no express limitation in the LRA which would

52 Transnet SOC Ltd v National Transport Movement & Others (J2301/13 21/10/2013).53 S 65 of the LRA.54 S 18 of the LRA provides that an employer and a majority trade union may conclude a collective agreement establishing the threshold of representativeness required in respect of the organisational rights referred to in s12, 13 and 15 of the LRA.55 The Court held that, when reading s18 with the agreement, it does not limit any exercise of the right to strike by the union.56 Transnet SOC Ltd v National Transport Movement & Others (J2301/13 21/10/2013) par 16-20.

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preclude a minority union demanding organisational rights through collective bargaining or

from exercising its right to strike.57

In short, the strike was held to be lawful.

2 5 Conclusion

In application to the set of facts, it becomes clear that in the event of one assuming that

Deli Enterprises refused to grant SSWU the rights it sought to exercise, the viability of a

protected strike may not be the most appropriate option to the minority union58 in light of the

fact that the amendments to section 21 of the LRA may allow a minority trade union to

obtain organisational rights through the CCMA.59

57 Transnet SOC Ltd v National Transport Movement & Others (J2301/13 21/10/2013) par 16-20. 58 The amendments to s21 of the LRA may allow a minority trade union to obtain organisational rights through the CCMA. 59 The purpose of the amendments to s21 is to facilitate the granting of organisational rights to trade unions that are sufficiently representative, and to ensure that the unions that represent a significant interest can validly exercise key organisational rights.

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Question 2

3 1 Introduction

60

By way of a light introduction to South Africa’s collective bargaining, Zapiro’s cartoon supra

shows a desperate South African coach Gordon Igesund looking for a soccer striker among

the protesting workers in the Western Cape. What follows is a concise and brief

memorandum of the state of collective bargain in South Africa to a potential foreign

investor. The position of collective bargaining pre and post-democracy will initially be

canvassed followed by the status of collective bargaining in South Africa.

3 2 A definition of Collective Bargaining

Collective labour law is the body of rules which regulates collective relationships.61 These

relationships exist between employee’s and the trade unions they belong to, between

employers’ and the employers organisations, the employers and/or employers

60 While labour unrest continues in the Western Cape and strikes continue on the farms, Bafana Bafana has not performed well on the soccer pitch and has failed to score goals. Zapiro’s cartoon shows desperate coach Gordon Igesund looking for a striker among the protesting workers in the Western Cape. 61 Basson, Christianson, Dekker, Garbers, le Roux, Mischeke and Strydom Essential Labour Law 5ed (2009) 243; Collective labour law unlike individual labour law is a process involving, not two individuals, but parties representing groups of individuals.

15

organisations and trade unions and lastly, between the government and employers

organisations.62

The Labour Relations Act 66 of 1995 (hereafter the LRA) does not contain a definition of

collective bargaining. Our courts have noted that “to bargain means to haggle or wrangle so

as to arrive at some agreement on terms of give and take. The term negotiate is akin to

bargaining and means to confer with a view to compromise and agreement.”63

According to Basson et al, collective bargaining can be described as a process through

which one or more trade unions engage in negotiations with one or more employers or

employer’s organisations with the purpose of regulating terms and conditions of

employment or matters of mutual interest.64

Negotiations are not limited to the terms and conditions of employment and may also

include grievances relating to dismissal, promotion or demotion of employees.65

Collective bargaining in South Africa takes a wide variety of forms and can take place at

various levels or forums. It may take place at ‘plant level’ or ‘factory level’, in others words

on the level of a single factory, office or mine.66 It may take the form of ‘enterprise level

bargaining’ in instances where collective bargaining occurs in all factories or braches of a

single employer in respect of a specified category of employees. Collective bargaining may

finally take place at ‘industry level’.67 This usually takes place between one or more unions

and employers active in a specific industry. According to Basson et al most of industry level

bargaining takes place within bargaining councils.68

3 3 Pre-democracy

South Africa introduced novel words which uniquely captures certain terms’ meaning,

purpose and significance. Examples of these exclusive words include biltong69,

62 Basson et al Essential Labour Law 243.63 See in general MAWU v Hart Ltd (1985) 6 ILJ 478 (IC)64 Unlike rules of individual labour law which are concerned with the rights and duties of the individual parties to the employment relationship, the rules of collective labour law, recognise that in modern industrial society, both employees and employers constitute distinct and opposing interest groups which tend to promote and protect their respective interests65 Basson Essential Labour Law 277.66 Du Doit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law 6ed (2015) 286.67 Du Doit et al Labour Relations Law 286.68 Basson et al Essential Labour Law 277.

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boerewors70, Madiba71 and of course a word that needs no introduction, Apartheid. For the

sake of completeness, Apartheid is an Afrikaans word meaning "the state of being apart"

and was a system of racial segregation in South Africa enforced through legislation by the

National Party72. Under apartheid, the rights, associations, and movements of the majority

black inhabitants and other ethnic groups were curtailed and Afrikaner minority rule was

maintained.73

Despite the deliberate enacting of legislation resulting in the segregation of individual

persons of colour, industrial relationships were also affected. The Industrial Conciliation Act

11 of 1924 (hereafter the Industrial Conciliation Act) has been at the core of South African

industrial relations and collective bargaining for the past 87 years. It has been amended

several times and changed its name to the Labour Relations Act in 1981.

At the heart of the Industrial Conciliation Act has been the establishment of industrial

councils. However, there was a fundamental flaw in that it excluded Black Africans from the

definition of employee. These Black Africans (to use the terminology of the day) could

therefore not belong to registered trade unions and were excluded from industrial councils.

The exclusion lasted until 1979. Thereafter, industrial councils took off and were rapidly

formed, reaching their peak around the early 1980’s when there were 104 in operation. The

councils varied enormously in size from large national councils to small local ones.74

Centralised collective bargaining took place in Industrial Councils. They negotiated wages

and working conditions of all the employees represented by the unions and employers’

associations. The Agreements could be extended to cover all employees in an industry in

the region covered by the Industrial Councils.75

69 Biltong is a dried and salted meat, similar to the American beef jerky, although it can be made from ostrich, kudu or any other red meat.70 Literally translates to "farmer's sausage". A savory sausage developed by the Boers some 200 years ago, boerewors is South African food at its most traditional.71 An affectionate name given to the former president and Statesman of the Republic of South Africa, Nelson Rolihlahla Mandela (18 July 1918 – 5 December 2013).72 The National Party (NP) was the governing party from 1948 to 1994; Unknown “Apartheid and Reactions to it” (undated) http://www.sahistory.org.za/article/apartheid-and-reactions-it (accessed 2015-21-09).73 Unknown “Apartheid and Reactions to it” (undated) http://www.sahistory.org.za/article/apartheid-and-reactions-it (accessed 2015-21-09)74 Du Doit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law 6ed (2015) 278.75 Du Doit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law 6ed (2015) 278.

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The durability of industrial councils suited large companies and registered trade unions on

the councils as it prevented the undercutting of wages by small companies and non-

unionised workers.76

3 4 Post-Democracy

The advent of the new political dispensation in 1994 heralded the coming of a new labour

dispensation. Labour relations and labour policies changed significantly from those which

prevailed under the previous government. The African National Congress came into power

with the backing and support of the Congress of South African Trade Unions and the South

African Communist Party.77

Following from an interim Constitution78 in 2003, the final Constitution of the Republic of

South Africa, 1996 (the Constitution) signalled a new dawn on labour relations and

collective bargaining.

Section 23 of the Constitution titled Labour Relations states the following:

(1) Everyone has the right to fair labour practices.(2) Every worker has the right –

(a) to form and join a trade union(b) to participate in the activities and programmes of a trade union; and(c) to strike

(3) Every employer has the right – (a) to form and join an employers’ organisation; and(b) To participate in the activities and programmes of an employers’ organisation.

(4) Every trade union and every employers’ organisation has the right – (a) To determine its own administration, programmes and activities;(b) To organise; and(c) To form and join a federation.

(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this chapter, the limitation must comply with section 36(1).

76 This has been the key factor explaining the durability of the industrial council system.77 Kruger and Tshoose “The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective” 2013 PER 16 4.78 200 of 1993.

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(6) National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this chapter, the limitation must comply with section 36(1).[own emphasis added]

Section 23 of the Constitution was not the only relevant provision. Other fundamental rights

also played a role such as the right of all persons to freedom of association,79 provisions

that guarantee equality and prohibit discrimination.80 Provisions which guarantee the right

to freedom of expression.81 The right to assemble, demonstrate, picket and petition.82 The

right to choose trade, occupation or profession83 and finally the right to just administrative

action.84

The purpose of section 23 of the Constitution is not to function as a first port of call but

rather to enjoin the legislature to get on with its constitutional charge of promoting and

fulfilling the rights in the Bill of Rights by producing appropriate legislation and to serve as

the fundamental yardstick to test and if necessary “repair” suspect legislation.85

In 1995 a new Labour Relations Act 66 of 1995 (hereafter the LRA) was passed. It

extended collective bargaining rights to almost all employees including civil servants. It

reconstituted industrial councils as bargaining councils and made provision for public

service bargaining councils. One of the hopes of the drafters was to change the adversarial

stance which tended to be adopted by unions and management under the old dispensation

to a more co-operative one.86

3 5 New dispensation

The current LRA provides for new institutions for encouraging union-management co-

operation and it revamped old ones, in the hope that this would help transform and mature

attitudes and bargaining styles.

79 This is a basic freedom which underpins all others guaranteed by s 18 of the Constitution, related to s 17 freedom to assemble, demonstrate and picket. 80 S 9 of the Constitution.81 S16 of the Constitution.82 S 17 of the Constitution.83 S 22 of the Constitution. 84 S 33 of the Constitution.85 The general administrative norm of constitutional avoidance states that specific legislation should be fully utilised before reliance in placed on general provisions such as the constitution. See in general Hoexter “ Administrative Law in South Africa” 2012.86 Van der Walt Presentation at NMMU “Collective Bargaining and Collective Labour Law: the Background to Collective Labour Law in South Africa” 2015 23.

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One of the express aims of the LRA is to “provide a framework within which employees and

their trade union, employers and employers organisations can...collectively bargain to

determine wages, terms and conditions of employment and other matters of mutual

interest”.87 The LRA also states that its objective is to promote “orderly collective

bargaining’ and ‘collective bargaining at sectoral level”.88

The LRA now recognises and provides for the creation of parties to the collective

bargaining process at industry level viz: trade unions and employers organisations. Chapter

II of the LRA sets out the fundamental right of freedom of association. Part A of Chapter III

of the LRA sets out certain organisational rights such as the right to access to the

workplace,89 the right to have trade union subscriptions deducted by the employer and paid

over to the Union,90 the right of the members to elect trade union representatives91 (shop

stewards), the right of the office-bearers to be granted leave for trade union activities,92 and

the right to the disclosure of information.93

3 6 The Framework

The follow on consequences of collective bargaining is provided by the right to strike and

the recognition of an employer’s ‘recourse’ to the lock-out. The LRA sets out the

procedures that parties must follow before resorting to industrial action.94 The right to strike

or lock-out is restricted in several ways in that parties are prohibited from striking or locking

out in certain aspects. 95 The restriction for instance, applies to parties who are already

bound by collective agreements regulating the issue in dispute. Alternatively, parties who

are obliged by collective agreement or the LRA to refer the dispute to arbitration or for

adjudication. Additionally, are those persons engaged in essential or maintenance services

and employees bound by ministerial sectoral determinations.96

87 S 1 (c) of the LRA.88 S 1 (d) of the LRA; The use of the word ‘framework’ is significant as it serves to reinforce the voluntarist nature of the LRA, and the view that the courts’ function is merely to ensure that bargaining parties comply with the rules, rather than to interfere with the outcome.89 S 12 of the LRA.90 S 13 of the LRA.91 S 14 of the LRA.92 S 15 of the LRA.93 S 16 of the LRA.94 S 64(1) of the LRA.95 Van der Walt Presentation at NMMU “Collective Bargaining and Collective Labour Law: the Background to Collective Labour Law in South Africa” 2015.96 Van der Walt Presentation at NMMU “Collective Bargaining and Collective Labour Law: the Background to Collective Labour Law in South Africa” 2015.

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Trade unions have received recognition in the new dispensation and are described as an

“association of employees whose principal purpose is to regulate relations between

employees and employers, including any employers’ organisations.”97 One of their primary

functions are to engage in collective bargaining with their members’ employers, and to

represent members in grievance and disciplinary matters. Trade unions also appoint

officials or members to bodies charged with ensuring employer compliance with legislation,

collective agreements, and health and safety regulations.

3 7 A South African view on a Duty to Bargain

The Labour Relations Act of 1956 (hereafter the 1956 Act) favored a majoritarian system98

of industry-level bargaining in the form of industrial councils and was silent on how the

parties should conduct themselves when engaged in the bargaining process. The early

formulation of rules of the bargain game was therefore left to courts.99

As mentioned supra, the main issue with the 1956 Act was the exclusion of black workers

from industrial bargaining. This in turn spawned a separate tradition of bargaining within the

workplace. The legislature responded through the resort of the unfair labour practice

jurisdiction of the Industrial Court.100 The wide ambit of the Industrial Court to determine the

perimeters of unfair labour practices was seen as somewhat intrusive on the employment

relationship.101 Nonetheless, the Industrial Court created a general duty to bargain with

trade unions that were sufficiently represented.102 The Industrial Court was not only

requested to intervene in certain bargaining topics, it also compelled parties to bargain in

certain aspects.103 A somewhat confused jurisprudence emerged as neither party was

certain of its respective rights. A body of rules relating to bargaining conduct was created

and the principle that parties should bargaining good faith was created. 104

97 S 213 of the LRA.98 Unions with majority support get distinct advantages, the model of majoritarianism, bestows a degree of primacy on unions with majority membership (at least 50%+1) in a workplace. Besides the rights contained in sections 12 and 13 of the LRA, a number of empowering provisions in Chapter III of the LRA exist. These incentives, designed to promote a majoritarian system of collective bargaining; See Kruger and Tshoose “The impact of the Labour Relations Act on minority trade unions: A South African perspective” 2013 PER 16 4.99 Haslop and Woodhead “Labour Dispute Resolution” 2015 L.E.A.D 1 1 126 30100 See Godfrey, Theron and Visser “The State of Collective Bargaining in South Africa An Empirical and Conceptual Study of Collective Bargaining” DPRU WP 07 1 115.101 Haslop and Woodhead “Labour Dispute Resolution” 2015 L.E.A.D 1 1 126 30.102 See Godfrey, Theron and Visser “The State of Collective Bargaining in South Africa An Empirical and Conceptual Study of Collective Bargaining” DPRU WP 07 1 115.103 Haslop and Woodhead “Labour Dispute Resolution” 2015 L.E.A.D 1 1 126 30.104 Haslop and Woodhead “Labour Dispute Resolution” 2015 L.E.A.D 1 1 126 30; Godfrey, Theron and Visser “The State of Collective Bargaining in South Africa An Empirical and Conceptual Study of Collective Bargaining” DPRU WP 07 1 115; Kruger and Tshoose “The impact of the Labour Relations Act on minority trade unions: A

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The current LRA attempts to avoid the fundamental dangers which resulted from the

imposition of a legally enforceable duty to bargain. In essence, the current LRA does not

create a duty to bargain105 however it does create a framework for parties to bargain

collectively.106 The LRA does this by providing effective protection of the right of employees

to form, join and participate in the activities of trade unions.107 Additionally, the LRA

promotes collective bargaining by enabling trade unions to obtain organisational rights

which enhance their position in the workplace thereby making it easier for trade unions to

persuade or force an employer to bargain collectively with.108 Moreover, the LRA permits

employees to strike in an attempt to force an employer to negotiate with it. The LRA now

also extends the scope of collective bargaining to sectors not previously covered by the

1956 Act such as State employees.

Unlike its predecessor, the current LRA therefore attempts to maintain flexibility by allowing

the parties to determine the nature, structure and economic outcomes for themselves. Not

only that, it promotes and encourages, but not compels, bargaining at a central or industry

level rather than at plant level.109

3 8 Collective Bargaining Highlights in South Africa

The following highlights and conclusions may be drawn from the body of case law and

legislation in South Africa.

One or more registered trade unions and one or more employers or registered employers

organisations may conclude a collective agreement which in essence is a written

agreement concerning terms and conditions of employment or any other matter of mutual

interest.110

South African perspective” 2013 PER 16 4; See also Basson et al Essential Labour Law 275.105 Haslop and Woodhead “Labour Dispute Resolution” 2015 L.E.A.D 1 1 126 30; Godfrey, Theron and Visser “The State of Collective Bargaining in South Africa An Empirical and Conceptual Study of Collective Bargaining” DPRU WP 07 1 115; Kruger and Tshoose “The impact of the Labour Relations Act on minority trade unions: A South African perspective” 2013 PER 16 4; See also Basson et al Essential Labour Law 275.106 Basson et al Essential Labour Law 275.107 Section 4 of the LRA; Basson et al Essential Labour Law 252.108 Sections 12, 13, 14, 15, 16 and 18 of the LRA: See also Basson et al Essential Labour Law 252.109 Haslop and Woodhead “Labour Dispute Resolution” 2015 L.E.A.D 1 1 126 30.110 S 213 of the LRA; Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) 194.

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The LRA prescribes who is bound by the collective agreement and it is possible in certain

instances for the agreement to bind parties who are not party to the agreement. Conditions

of employment of non-members may therefore be changed by the collective agreement.111

The LRA acknowledges trade union security arrangements contained in collective

agreements.112

The LRA provides a system or structure of centralised or sectoral collective bargaining by

means of bargaining or statutory councils. This system of collective bargaining is not

compulsory except in the public service. Once a bargaining or statutory council is

registered by the Registrar, it has the power to determine conditions of employment by

collective bargaining for the whole sector.113

The LRA provides for dispute resolution mechanisms to resolve disputes arising from

collective agreements. These mechanisms are primarily conciliation and arbitration, but the

Labour Court also has jurisdiction to adjudicate certain disputes related to collective

agreements.114

111 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context 194.112 This means that non-union members may be compelled to pay agency fees to a trade union in terms or the agency shop, or be forced to join the trade unions in a closed shop.113 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) 195.114 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) 195.

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BIBLIOGRAPHY

LEGISLATION

Basic Conditions of Employment Act 75 of 1997

Employment of Educators Act 76 of 1998

Industrial Conciliation Act 11 of 1924

Labour Relations Act 28 of 1956

Labour Relations Act 66 of 1995

The Constitution of the Republic of South Africa, 1996

BOOKS

Basson, Christianson, Dekker, Garbers, le Roux, Mischeke and Strydom Essential Labour Law 5ed (2009) Labour Law Publications Centurian

Currie and De Waal The Bill of Rights Handbook 6ed (2014) Juta & Co Cape Town

Currie The Promotion of Administrative Justice Act: A Commentary 2ed (2007) Siber Ink Johannesburg

Du Doit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law 6ed (2015) Lexis Nexis Durban.

Govindjee and Vranken (eds) Introduction to Human Rights Law (2009) LexisNexis Durban

Grogan Workplace Law 10ed (2009) Juta & Co Claremont

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Martin and Law A Dictionary of Law 5ed (2002) Oxford New York

Rycroft and Jordaan A Guide to South African Labour Law 1992 2ed Juta & Co Claremont

Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) Pearson

JOURNAL ARTICLES

Levy “The Unfair Labour Practice and the Definition of Benefits: Labour Law’s Tower of Babel” 2009 30 ILJ 1451

Le Roux “Organisational Rights for Minority Unions” 2014 CLL 23 7

Bhorat and van der Westhuizen “A Synthesis of Current Issues in the Labour Regulatory Environment” 2008 DRPU 1

Cohen “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)” 2014 PER 17 1

Kruger and Tshoose “The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective” 2013 PER 16 4

Godfrey, Theron and Visser “The State of Collective Bargaining in South AfricaAn Empirical and Conceptual Study of Collective Bargaining” DPRU WP 07 1 115

Le Roux “The Impact of the 2002 Amendments on Residual Unfair Labour Practices” 2002 23 Obiter 311 314.

TABLE OF CASES

Department of Justice v CCMA 2004 25 ILJ 248 (LAC)

HOSPERSA v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC)

MAWU v Hart Ltd (1985) 6 ILJ 478 (IC)

NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC)

National Union of Mineworkers v Bader Bop 2003 24 ILJ 305 (CC)

Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC)

Transnet SOC Ltd v National Transport Movement & Others (Unreported J2301/13

21/10/2013)

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WEBSITES

South African Legal Information Institute http://www.saflii.org (accessed 2015-04-10)

Jonathan Shapiro http://www.zapiro.com (accessed 2015-04-10)

Matshekga “Occupation Specific Dispensation Disputes are they Unfair Labour Practice Relating to Benefits Disputes or Not” Undated http://www.phsdsbc.org.za/resoure-library/publications/# (accessed 2015-15-04)

Niemand “Meaning of Benefits Expanded Under Unfair Labour Practice” (undated)http://showme.co.za/port-elizabeth/business/meaning-of-benefits-expanded-under-unfair-labour-practice/ (accessed 2015-15-04)

Patel “The Benefit Saga: Is it Finally Resolved?” (undated)http://www.labourguide.co.za/most-recent/1607-the-benefits-saga-is-it-finally-resolved# (accessed 2015-15-04)

Unknown “Apartheid and Reactions to it” (undated) http://www.sahistory.org.za/article/apartheid-and-reactions-it (accessed 2015-21-09)

OTHER

Haslop and Woodhead “Labour Dispute Resolution” 2015 L.E.A.D 001 1 126 (Port Elizabeth Law School Notes)

Van der Walt Presentation at NMMU “Collective Bargaining and Collective Labour Law: the Background to Collective Labour Law in South Africa” 2015

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