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Question 1
Discuss whether the right of trade unions to conclude closed shop and agency shop agreements infringes employees’ right to freedom of association.
Introduction:
The constitution of the Republic of South Africa, since 1996, which has been amended by seventeen amendment acts to date, was finally approved and formally entitled the "Constitution of the Republic of South Africa, 1996." It was previously also numbered as if it was an Act of Parliament—Act No. 108 of 1996—but, since the passage of the Citation of Constitutional Laws Act, neither it nor the acts amending it is allocated act numbers.
Chapter two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. The rights in the Bill apply to all law, including the common law, and bind all branches of the government, including the national executive, Parliament, the judiciary, provincial governments and municipal councils. Some provisions, such as those prohibiting unfair discrimination, also apply to the actions of private persons.
The concepts of close shop and agency as espoused through the labour relations act, speaking to freedom of association , speaks in a hugely diverse manner to the importance of the right of association which simultaneously makes a concerted effort not to infringe on individual choice, or their private actions.
This concept and right as contained in the bill of rights, serves as a principal law which sets out the principle upon which the labour relations act of 1995, as amended, on section 18 states “Everyone has the right to freedom of association.”
The total import of these provisions is that they unequivocally point to the choice factor, i.e. the right or freedom to associate or not. The ultimate conclusion therefore is that the member has the right / freedom to exercise a choice as to which (union) must deduct from his / her salary or none of the preceding acts to happen, if they choose so.
One can see the agency shop and close shop clauses as the limitation to infringe on the choice of action based on private or otherwise individual determination. State department as legally empowered, such as the judiciary, the legislature or the executive, may invariably limit rights in carrying out their functions.
Further, because of the horizontal application of the Bill of Rights, rights may be limited by the actions or decisions of other persons. The courts are empowered to test the validity of the limitation in terms of Section 36.
Section 36 provides certain factors that must be taken into account by the courts when determining if a limitation is reasonable and justifiable:
• The nature of the right.
• The importance of the limitation
• The nature and extent of the limitation
• The relation between the limitation and its purpose, and
• Less restrictive means to achieve the purpose.
Distinction: The Closed shop agreement and an Agency shop agreement.
• The right of employees to join trade unions of their choice is an integral part of the general right to freedom of association. These rights are guaranteed in the South African Constitution and Labour Relations Act of 1995 (as amended).
Definition and clarity on the agency shop and the close shop agreements:
Definition and clarity on the close shop concept:
“Close shop agreement”:
• Closed shop agreements have a similar aim to agency shop agreements, but compel non-union members to join the union or face dismissal.
• Closed shop agreements have a similar aim to agency shop agreements, but compel non-union members to join the union or face dismissal.
Definition and clarity on the agency shop concept:
“Agency shop agreement”:
• The aim of an agency shop is to ensure that non-union employees, who nevertheless benefit from the union’s bargaining efforts, make a contribution towards those efforts.
• The aim of an agency shop is to ensure that non-union employees, who nevertheless benefit from the union’s bargaining efforts, make a contribution towards those efforts.
A truly complex balance in order to apply a fair and just application to individual and collective rights
“Freedom of association concept”
• Freedom of association means that people have the right to associate with others in order to defend and protect their common interest.
• In the workplace, freedom of association entails the right of workers to form and join trade unions of their choice and to participate in these unions lawful activities.
• The right of employees to join trade unions of their choice is an integral part of the general right to freedom of association. These rights are guaranteed in the South African Constitution and Labour Relations Act of 1995 (as amended).
• Majority unions are now vigorously applying these agreements (especially agency shop) to apply to members of minority unions who may be sufficiently representative. Minority unions are thus prejudiced to the extent that their existence in certain workplaces or sectors is being threatened.
Majority unions are now vigorously applying these agreements (especially agency shop) to apply to members of minority unions who may be sufficiently representative. Minority unions are thus prejudiced to the extent that it may be that, obscured certain minority unions have their existence in certain workplaces or sectors being threatened.
Conclusion: Noteworthy, it then is possible to challenge at court, this possibility if identified by them, in terms of the validity of the limitation as mentioned above, therefore there concepts as outlined cannot summarily perceived as of any infringement the freedom of association concept
Question 2
Which organisational rights can a registered trade union which is only sufficiently representative acquire from the employer?
Introduction:
Trade unions are vehicles to advance workers’ rights, without jeopardising the institutional capacity of employers to sustain and derive sustainable outcomes in business making.
In order to execute their mandates, trade unions have to comply with various legislative requirements as contained in the labour relations Act No 66 of 1995 (as amended). The importance of these legal prescripts has elevated these privileges to a legal status in a work environment. This has been translated into what is termed organisational rights as a result of their crucial and absolute pillar for sound labour relations and broad principles that impacts on the wellbeing of society in general and the economic base of any country
If the employer denies the trade union these rights, the trade union may refer the dispute to the CCMA in accordance to section 21 of the LRA. The commissioner of the CCMA makes a determination on how much the trade union in terms of the representation in that specific sector, based on the following aspects:
• The determination as to whether the Union is sufficiently represented in the workplace?
• Is the union enjoying majority rights in the workplace?
• Consider the general composition of the workforce at the specified organisation?
• The commissioner will be given the discretion to award organisational rights in accordance with Sections 14 and Section 16 of the LRA.
These sections are stated in provisioning of these organisational rights such as:
• Section 12 – The right to access
• Section 13 – the right to collect union dues
• Section 15 – the right to take leave for union activities
Section 18 of the LRA stipulates that the employer and the majority trade union may conclude a collective agreement that establishes a threshold of representativeness required in that workplace.
There are five organisational rights and the level of representation required in order for a trade union to acquire each of them, as provided by the LRA of 1995. Organisational rights are granted to unions by the LRA to enable them to function more effectively and to build support at the workplace
Organisational rights are granted only to registered trade unions.
The LRA provides for five organisational rights
• The right of access to the premises of the employer
• The right to have trade union membership fees deducted by way of stop order.
• The right to elect shop stewards
• The right of shop stewards to get time off for trade union activities
• The right to disclosure of information.
The schematic below portrays a simplistic version of the discussion above:
QUESTION 3
Company X has 110 employees of whom 20 are managerial employees. Although it is not registered, trade union Y represents the majority of the employees at company X. Trade union Y informs you that it intends to establish a workplace forum in the workplace.
(a) Advise trade union Y whether or not it will be able to do so.
Definition of a workplace forum: What is a Workplace Forum?
The workplace forum is meant to provide for platform that is non-adversarial which will create opportunities for employers and employees to embark on a cordial relationship, to strengthen cooperation by means of consultative processes and to have joint decision-making on a range of workplace related issues except on wage negotiations.
A workplace forum therefore provides an opportunity for worker participation, which refers to:
• Consultation of employees or employee representatives on work related matters;
• Involvement of the employer and employee representatives in joint decision-making (co-determination) with management; perhaps not management responsibility abdication
• The disclosure of information for purposes of consultation or joint decision-making;
General functions of a Workplace Forum?
Section 79 of the LRA sets out four “general functions” of a workplace forum as follows:
• To seek to promote the interests of all employees in the workplace whether or not they are trade union
members;
• To seek to enhance efficiency in the workplace;
• To be consulted by the employer, with a view to reaching essential agreements, about the matters referred to in section 84; and
• To participate in joint decision-making about the matters referred to in s86.
What distinguishes a Workplace Forum from a Trade Union?
• A trade union is a juristic body whereas a workplace forum is not;
• Only a representative trade union can call for the establishment
of a workplace forum. In terms of Section 78(b) read with Section80, a representative trade union is a trade union, or two or more unions acting together, that represents the majority of employees;
• A trade union negotiates wages and wage related issues whereas a workplace forum does not deal with wages;
• A workplace forum cannot embark on industrial action whereas
a trade union can;
• Non-union members can belong to a workplace forum.
What are the requirements for the establishment of a Workplace Forum?
• The employer must employ 100 or more workers in terms of s 80(1);
• Only a representative trade union may apply to the CCMA for the establishment of a workplace forum.
In terms of Section 78(b) read with Section 80, a representative trade union is a trade union, or two or more unions acting together, that represents the majority of employees.
• The representative trade union must ensure that a copy of its application is served on the employer;
• A trade union, which is recognised by an employer in terms of a collective agreement, may apply to the CCMA for the establishment of a workplace forum. This is known as a “trade union based workplace forum”.
Issues an employer must consult with at Workplace Forum?
Section 84(1) states that a workplace forum is entitled to be consulted by the employer about proposals relating to any of the following matters provided they are not already regulated by a collective agreement:
• Restructuring the workplace, including the introduction of new technology and new work methods;
• Changes in the organisation of work;
• Partial or total plant closures;
• Mergers and transfers of ownership in so far as they have an impact on the employees;
• The retrenchment of employees;
• Exemptions from any collective agreement or law;
• Job grading;
• Criteria for merit increases or the payment of discretionary bonuses;
• Education and training;
• Product development plans; and
• Export promotion.
NOTE - that a collective agreement supersedes any agreement reached between a workplace forum
and the employer.
Disputes about Workplace Forums
Any party to a dispute about the interpretation or application of a workplace forum constitution may refer a dispute to the CCMA in writing if that party is:
• One of more employees employed in the workplace;
• A registered trade union with members employed in the workplace;
• The representative trade union; or the employer.
The party who refers the dispute to the CCMA must satisfy the Commission that a copy of the referral has been served on all the other parties to the dispute. The CCMA must attempt to resolve the
dispute through conciliation. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.
(b) What information must be included in the notice that the convenor of a proposed picket, must give to the employer in terms of section 69 of the LRA?
Section 21 of the LRA empowers a registered trade union to notify the employer in writing that it (the union) seeks to exercise organisational rights.
The notice must contain the following information:
• The workplace in which the union seeks to exercise the rights,
• The representation of the trade union in that workplace,
• The rights that the trade union wants to exercise, and
• The manner in which the trade union wants to exercise those rights.
Name the document which must accompany the notice above.
The notice must also be accompanied by a certified copy of the trade union registration certificate.
To which institution may disputes about disclosures be referred?
• Organisational rights have been discussed above. If there is a dispute about the interpretation of organisational rights, any party may refer the dispute in writing to the CCMA for conciliation and, if conciliation fails, for arbitration.
• Disputes about disclosure of information follow the same route. In determining the dispute, the Commissioner must strike a balance between the employer's right to privacy and the interests of sound collective bargaining. The Commissioner has a fairly wide discretion to make a suitable award to achieve this.
Conclusively: the trade union is allowed if it has at least 100 members even if they are part of management
Discuss whether the right of trade unions to conclude closed shop and agency shop agreements infringes employees’ right to freedom of association.
Introduction:
The constitution of the Republic of South Africa, since 1996, which has been amended by seventeen amendment acts to date, was finally approved and formally entitled the "Constitution of the Republic of South Africa, 1996." It was previously also numbered as if it was an Act of Parliament—Act No. 108 of 1996—but, since the passage of the Citation of Constitutional Laws Act, neither it nor the acts amending it is allocated act numbers.
Chapter two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. The rights in the Bill apply to all law, including the common law, and bind all branches of the government, including the national executive, Parliament, the judiciary, provincial governments and municipal councils. Some provisions, such as those prohibiting unfair discrimination, also apply to the actions of private persons.
The concepts of close shop and agency as espoused through the labour relations act, speaking to freedom of association , speaks in a hugely diverse manner to the importance of the right of association which simultaneously makes a concerted effort not to infringe on individual choice, or their private actions.
This concept and right as contained in the bill of rights, serves as a principal law which sets out the principle upon which the labour relations act of 1995, as amended, on section 18 states “Everyone has the right to freedom of association.”
The total import of these provisions is that they unequivocally point to the choice factor, i.e. the right or freedom to associate or not. The ultimate conclusion therefore is that the member has the right / freedom to exercise a choice as to which (union) must deduct from his / her salary or none of the preceding acts to happen, if they choose so.
One can see the agency shop and close shop clauses as the limitation to infringe on the choice of action based on private or otherwise individual determination. State department as legally empowered, such as the judiciary, the legislature or the executive, may invariably limit rights in carrying out their functions.
Further, because of the horizontal application of the Bill of Rights, rights may be limited by the actions or decisions of other persons. The courts are empowered to test the validity of the limitation in terms of Section 36.
Section 36 provides certain factors that must be taken into account by the courts when determining if a limitation is reasonable and justifiable:
• The nature of the right.
• The importance of the limitation
• The nature and extent of the limitation
• The relation between the limitation and its purpose, and
• Less restrictive means to achieve the purpose.
Distinction: The Closed shop agreement and an Agency shop agreement.
• The right of employees to join trade unions of their choice is an integral part of the general right to freedom of association. These rights are guaranteed in the South African Constitution and Labour Relations Act of 1995 (as amended).
Definition and clarity on the agency shop and the close shop agreements:
Definition and clarity on the close shop concept:
“Close shop agreement”:
• Closed shop agreements have a similar aim to agency shop agreements, but compel non-union members to join the union or face dismissal.
• Closed shop agreements have a similar aim to agency shop agreements, but compel non-union members to join the union or face dismissal.
Definition and clarity on the agency shop concept:
“Agency shop agreement”:
• The aim of an agency shop is to ensure that non-union employees, who nevertheless benefit from the union’s bargaining efforts, make a contribution towards those efforts.
• The aim of an agency shop is to ensure that non-union employees, who nevertheless benefit from the union’s bargaining efforts, make a contribution towards those efforts.
A truly complex balance in order to apply a fair and just application to individual and collective rights
“Freedom of association concept”
• Freedom of association means that people have the right to associate with others in order to defend and protect their common interest.
• In the workplace, freedom of association entails the right of workers to form and join trade unions of their choice and to participate in these unions lawful activities.
• The right of employees to join trade unions of their choice is an integral part of the general right to freedom of association. These rights are guaranteed in the South African Constitution and Labour Relations Act of 1995 (as amended).
• Majority unions are now vigorously applying these agreements (especially agency shop) to apply to members of minority unions who may be sufficiently representative. Minority unions are thus prejudiced to the extent that their existence in certain workplaces or sectors is being threatened.
Majority unions are now vigorously applying these agreements (especially agency shop) to apply to members of minority unions who may be sufficiently representative. Minority unions are thus prejudiced to the extent that it may be that, obscured certain minority unions have their existence in certain workplaces or sectors being threatened.
Conclusion: Noteworthy, it then is possible to challenge at court, this possibility if identified by them, in terms of the validity of the limitation as mentioned above, therefore there concepts as outlined cannot summarily perceived as of any infringement the freedom of association concept
Question 2
Which organisational rights can a registered trade union which is only sufficiently representative acquire from the employer?
Introduction:
Trade unions are vehicles to advance workers’ rights, without jeopardising the institutional capacity of employers to sustain and derive sustainable outcomes in business making.
In order to execute their mandates, trade unions have to comply with various legislative requirements as contained in the labour relations Act No 66 of 1995 (as amended). The importance of these legal prescripts has elevated these privileges to a legal status in a work environment. This has been translated into what is termed organisational rights as a result of their crucial and absolute pillar for sound labour relations and broad principles that impacts on the wellbeing of society in general and the economic base of any country
If the employer denies the trade union these rights, the trade union may refer the dispute to the CCMA in accordance to section 21 of the LRA. The commissioner of the CCMA makes a determination on how much the trade union in terms of the representation in that specific sector, based on the following aspects:
• The determination as to whether the Union is sufficiently represented in the workplace?
• Is the union enjoying majority rights in the workplace?
• Consider the general composition of the workforce at the specified organisation?
• The commissioner will be given the discretion to award organisational rights in accordance with Sections 14 and Section 16 of the LRA.
These sections are stated in provisioning of these organisational rights such as:
• Section 12 – The right to access
• Section 13 – the right to collect union dues
• Section 15 – the right to take leave for union activities
Section 18 of the LRA stipulates that the employer and the majority trade union may conclude a collective agreement that establishes a threshold of representativeness required in that workplace.
There are five organisational rights and the level of representation required in order for a trade union to acquire each of them, as provided by the LRA of 1995. Organisational rights are granted to unions by the LRA to enable them to function more effectively and to build support at the workplace
Organisational rights are granted only to registered trade unions.
The LRA provides for five organisational rights
• The right of access to the premises of the employer
• The right to have trade union membership fees deducted by way of stop order.
• The right to elect shop stewards
• The right of shop stewards to get time off for trade union activities
• The right to disclosure of information.
The schematic below portrays a simplistic version of the discussion above:
QUESTION 3
Company X has 110 employees of whom 20 are managerial employees. Although it is not registered, trade union Y represents the majority of the employees at company X. Trade union Y informs you that it intends to establish a workplace forum in the workplace.
(a) Advise trade union Y whether or not it will be able to do so.
Definition of a workplace forum: What is a Workplace Forum?
The workplace forum is meant to provide for platform that is non-adversarial which will create opportunities for employers and employees to embark on a cordial relationship, to strengthen cooperation by means of consultative processes and to have joint decision-making on a range of workplace related issues except on wage negotiations.
A workplace forum therefore provides an opportunity for worker participation, which refers to:
• Consultation of employees or employee representatives on work related matters;
• Involvement of the employer and employee representatives in joint decision-making (co-determination) with management; perhaps not management responsibility abdication
• The disclosure of information for purposes of consultation or joint decision-making;
General functions of a Workplace Forum?
Section 79 of the LRA sets out four “general functions” of a workplace forum as follows:
• To seek to promote the interests of all employees in the workplace whether or not they are trade union
members;
• To seek to enhance efficiency in the workplace;
• To be consulted by the employer, with a view to reaching essential agreements, about the matters referred to in section 84; and
• To participate in joint decision-making about the matters referred to in s86.
What distinguishes a Workplace Forum from a Trade Union?
• A trade union is a juristic body whereas a workplace forum is not;
• Only a representative trade union can call for the establishment
of a workplace forum. In terms of Section 78(b) read with Section80, a representative trade union is a trade union, or two or more unions acting together, that represents the majority of employees;
• A trade union negotiates wages and wage related issues whereas a workplace forum does not deal with wages;
• A workplace forum cannot embark on industrial action whereas
a trade union can;
• Non-union members can belong to a workplace forum.
What are the requirements for the establishment of a Workplace Forum?
• The employer must employ 100 or more workers in terms of s 80(1);
• Only a representative trade union may apply to the CCMA for the establishment of a workplace forum.
In terms of Section 78(b) read with Section 80, a representative trade union is a trade union, or two or more unions acting together, that represents the majority of employees.
• The representative trade union must ensure that a copy of its application is served on the employer;
• A trade union, which is recognised by an employer in terms of a collective agreement, may apply to the CCMA for the establishment of a workplace forum. This is known as a “trade union based workplace forum”.
Issues an employer must consult with at Workplace Forum?
Section 84(1) states that a workplace forum is entitled to be consulted by the employer about proposals relating to any of the following matters provided they are not already regulated by a collective agreement:
• Restructuring the workplace, including the introduction of new technology and new work methods;
• Changes in the organisation of work;
• Partial or total plant closures;
• Mergers and transfers of ownership in so far as they have an impact on the employees;
• The retrenchment of employees;
• Exemptions from any collective agreement or law;
• Job grading;
• Criteria for merit increases or the payment of discretionary bonuses;
• Education and training;
• Product development plans; and
• Export promotion.
NOTE - that a collective agreement supersedes any agreement reached between a workplace forum
and the employer.
Disputes about Workplace Forums
Any party to a dispute about the interpretation or application of a workplace forum constitution may refer a dispute to the CCMA in writing if that party is:
• One of more employees employed in the workplace;
• A registered trade union with members employed in the workplace;
• The representative trade union; or the employer.
The party who refers the dispute to the CCMA must satisfy the Commission that a copy of the referral has been served on all the other parties to the dispute. The CCMA must attempt to resolve the
dispute through conciliation. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.
(b) What information must be included in the notice that the convenor of a proposed picket, must give to the employer in terms of section 69 of the LRA?
Section 21 of the LRA empowers a registered trade union to notify the employer in writing that it (the union) seeks to exercise organisational rights.
The notice must contain the following information:
• The workplace in which the union seeks to exercise the rights,
• The representation of the trade union in that workplace,
• The rights that the trade union wants to exercise, and
• The manner in which the trade union wants to exercise those rights.
Name the document which must accompany the notice above.
The notice must also be accompanied by a certified copy of the trade union registration certificate.
To which institution may disputes about disclosures be referred?
• Organisational rights have been discussed above. If there is a dispute about the interpretation of organisational rights, any party may refer the dispute in writing to the CCMA for conciliation and, if conciliation fails, for arbitration.
• Disputes about disclosure of information follow the same route. In determining the dispute, the Commissioner must strike a balance between the employer's right to privacy and the interests of sound collective bargaining. The Commissioner has a fairly wide discretion to make a suitable award to achieve this.
Conclusively: the trade union is allowed if it has at least 100 members even if they are part of management
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