Summary Labour Law Exam notes. Summaries from chapter 15 and 16 including podcasts and case law discussed.
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Course
ABR 410 (ABR410)
Institution
University Of Pretoria (UP)
These are summarised notes from Chapters 15 and 16 of Law @ Work. Follows the lecture outlines as per the podcasts as well as the case summaries and articles discussed. Obviously based on my understanding of the work. This is study unit 9 of the work.
Study Unit 9: Collective labour law
Study Theme 9 Podcast 1
Definition of collective bargaining: negotiation of wages and other conditions of
employment by an organized body of employees
Individual employee is in a much lower bargaining position than if they were part of a union/
had a representative negotiating on your behalf.
Contract employees hardly ever contain a clause that gives employees a right to an annual
wage increase.
However, inflation erodes the value of salaries. Employees may decide to join a trade union,
pay monthly subscription fees and trade union will in turn on a regular negotiate on behalf of
the employees, in the best interest of the employees the increase of salaries.
The purpose of collective bargaining is to reach a so called, collective agreements, which often
span for a duration of the year, although can be concluded for two- or three-year terms.
Trade unions will often issue a demand, after getting a mandate from their members
(employees) subsequent to threats of strike action, a collective agreement will be attained and
then they would be labour peace for the duration of that agreement.
The Labour Relations Act does not establish an enforceable duty to engage in collective
bargaining, in other words workers/employees cannot refer a dispute to the CCMA, for the
CCMA to issue an award which compels the employee to engage in collective bargaining.
However, trade unions have organizational rights and workers have the right to strike.
Definition of trade union: an organized association of workers in a trade, group of trades,
or profession, formed to protect and further their rights and interests.
Employers’ organizations: An employers' organization or employers' association is a
collective organization of manufacturers, retailers, or other employers of wage labor.
Employers' organizations operate like trade unions and promote the economic and
social interests of its member organisation.
Registration requirements for trade unions and employers’ organizations.
Trade union: To register a trade union, you must apply to the Registrar of Labour Relations at
the Department of Labour.
,CHAPTER SIX TRADE UNIONS AND EMPLOYERS' ORGANISATIONS
Section 95: Requirements for registration of trade unions or employers' organisations
1. Any trade union may apply to the registrar for registration if-
a. it has adopted a name that meets the requirements of subsection (4).
b. it has adopted a constitution that meets the requirements of subsections (5) and (6).
c. it has an address in the Republic; and
d. it is independent.
2. A trade union is independent if-
a. it is not under the direct or indirect control of any employer or employers' organisation; and
b. it is free of any interference or influence of any kind from any employer or employers' organisation.
3. Any employers' organisation may apply to the registrar for registration if-
a. it has adopted a name that meets the requirements of subsection (4).
b. it has adopted a constitution that meets the requirements of subsections (5) and (6), and
c. it has an address in the Republic.
4. Any trade union or employers' organisation that intends to register may not have a name or shortened form of the
name that so closely resembles the name or shortened form of the name of another trade union or employers'
organisation that it is likely to mislead or cause confusion.
5. The constitution of any trade union or employers' organisation that intends to register must-
a. state that the trade union or employers' organisation is an association not for gain.
b. prescribe qualifications for, and admission to, membership.
c. establish the circumstances in which a member will no longer be entitled to the benefits of membership.
d. provide for the termination of membership.
e. provide for appeals against loss of the benefits of membership or against termination of membership, prescribe a procedure for
those appeals and determine the body to which those appeals may be made.
f. provide for membership fees and the method for determining membership fees and other payments by members.
g. prescribe rules for the convening and conducting of meetings of members and meetings of representatives of members, including
the quorum required for, and the minutes to be kept of, those meetings.
h. establish the manner in which decisions are to be made.
i. establish the office of secretary and define its functions.
j. provide for other office-bearers, officials and, in the case of a trade union, trade union representatives, and define their respective
functions.
k. prescribe a procedure for nominating or electing office-bearers and, in the case of a trade union, trade union representatives.
l. prescribe a procedure for appointing, or nominating and electing, officials.
m. establish the circumstances and manner in which office-bearers, officials and, in the case of a trade union, trade union
representatives, may be removed from office.
n. provide for appeals against removal from office of office-bearers, officials and, in the case of a trade union, trade union
representatives, prescribe a procedure for those appeals and determine the body to which those appeals may be made.
o. establish the circumstances and manner in which a ballot must be conducted.
p. provide that the trade union or employers' organisation before calling a strike or lock-out, must conduct a ballot of those of its
members in respect of whom it intends to call the strike or lock-out.
q. provide that members of the trade union or employers' organisation may not be disciplined or have their membership terminated for
failure or refusal to participate in a strike or lock-out if-
i. no ballot was held about the strike or lock-out; or
ii. a ballot was held but a majority of the members who voted did not vote in favor of the strike or lock-out.
r. provide for banking and investing its money.
s. establish the purposes for which its money may be used.
t. provide for acquiring and controlling property.
u. determine a date for the end of its financial year.
v. prescribe a procedure for changing its constitution; and
w. prescribe a procedure by which it may resolve to wind up.
6. The constitution of any trade union or employers' organisation which intends to register may not include any
provision that discriminates directly or indirectly against any person on the grounds of race or sex.
7. The registrar must not register a trade union or an employers' organisation unless the registrar is satisfied that the
applicant is a genuine trade union or a genuine employers' organisation.
[Sub-s. (7) added by s. 18 of Act No. 12 of 2002.]
8. The Minister, after consultation with NEDLAC, may by notice in the Government Gazette publish guidelines to be
applied by the registrar in determining whether an applicant is a genuine trade union or a genuine employers'
organisation and guidelines for the system of voting as contemplated in subsection 9.
9. For the purpose of subsection (5), 'ballot' includes any system of voting by members that is recorded and in
secret.
,Section 96: Registration of trade unions or employers' organisations
1. Any trade union or employers' organisation may apply for registration by submitting to the registrar-
a. a prescribed form that has been properly completed;
b. a copy of its constitution; and
c. any other information that may assist the registrar to determine whether or not the trade union or employers'
organisation meets the requirements for registration.
2. The registrar may require further information in support of the application.
3. The registrar-
a. must consider the application and any further information provided by the applicant; and
b. if satisfied that the applicant meets the requirements for registration, must register the applicant by entering the
applicant's name in the register of trade unions or the register of employers' organisations.
4. If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar-
a. must send the applicant a written notice of the decision and the reasons for that decision; and
b. in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements.
5. If, within that 30-day period, the applicant meets the requirements for registration, the registrar must register the applicant by
entering the applicant's name in the appropriate register.
6. If, within that 30-day period, an applicant has attempted to meet the requirements for registration but the registrar concludes
that the applicant has failed to do so, the registrar must-
a. refuse to register the applicant; and
b. notify the applicant in writing of that decision.
7. After registering the applicant, the registrar must-
a. issue a certificate of registration in the applicant's name; and
b. send the certificate and a certified copy of the registered constitution to the applicant.
LRA contains provisions that must be present in the constitutions of both trade unions and
employer’s organisations.
Section 30. Constitution of bargaining council
(1) The constitution of every bargaining council must at least provide for
a) the appointment of representatives of the parties to the bargaining council, of whom half must be appointed by the trade unions that are
party to the bargaining council and the other half by the employers' organisation that are party to the bargaining council, and the appointment
of alternates to the representatives;
(b) the representation of small and medium enterprises.
(c) the circumstances and manner in which representatives must vacate their seats' and the procedure for replacing them.
(d) rules for the convening and conducting of meetings of representatives, including the quorum required for, and the minutes to be kept of,
those meetings.
(e) the manner in which decisions are to be made.
(f) the appointment or election of office-bearers and officials, their functions, and the circumstances and manner in which they may be
removed from office.
(g) the establishment and functioning of committees.
(h) the determination through arbitration of any dispute arising between the parties to the bargaining council about the interpretation or
application of the bargaining council's constitution.
(i) the procedure to be followed if a dispute arises between the parties to the bargaining council.
(j) the procedure to be followed if a dispute arises between a registered trade union that is a party to the bargaining council, or its members, or
both, on the one hand, and employers who belong to a registered employers' organisation that is a party to the bargaining council, on the
other hand;
(k) the procedure for exemption from collective agreements;
(l) the banking and investment of its funds;
(m) the purposes for which its funds may be used;
(n) the delegation of its powers and functions;
(o) the admission of additional registered trade unions and registered employers' organisations as parties to the bargaining council, subject to
the provisions of section 56;7 (p) a procedure for changing its constitution; and
(q) a procedure by which it may resolve to wind up.
(2) The requirements for the constitution of a bargaining council in subsection (1) apply to the constitution of a bargaining council in the public service
except that-
(a) any reference to an "employers' organisation" must be read as a reference to the State as employer; and
(b) the requirement in subsection (1)(b) concerning the representation of small and medium enterprises does not apply.
(3) The constitution of the Public Service Co-ordinating Bargaining Council must include a procedure for establishing a bargaining council in a sector of
the public service designated in terms of section 37(l).
(4) The constitution of a bargaining council in the public service may include provisions for the establishment and functioning of chambers of a
bargaining council on national and regional levels.
(5) The procedures for the resolution of disputes referred to in subsection (1)(h), (i) and (j) may not entrust dispute resolution functions to the
Commission unless the governing body of the Commission has agreed thereto.
, Once registered, a trade union becomes a body corporate, it is a separate legal entity. They
can sue in their own name, acquire property, and conclude valid and binding agreements.
Strike ballots: No compulsion on trade unions and workers to conduct a strike ballot before
going on strike. However, through indirect means, trade unions and workers are compelled to
have strike ballots.
Each and every constitution of a trade union must include a provision that before embarking on
a strike, they must conduct a strike ballot. This requirement, however, does not effect the so
called protected and unprotected status of a strike.
Institution referred to as bargaining council.
Two main functions of bargaining councils are
o 1) conciliation and arbitration functions
o 2) Collective bargaining takes place at a bargaining council.
A bargaining council is registered for different industries, e.g. Motor Industry, Building Industry,
Laundry Industry etc.
Composed of representatives s of employees and employers who agree on annual basis on
conditions of service for that particular industry.
The agreements made at bargaining councils always have better conditions of service for
employees than those set out by the Basic Conditions of Employment Act.
CHAPTER 15: LAW AT WORK
Collective bargaining has been described as: a process in which workers and employers make
claims upon each other and resolve them through a process of negotiation leading to collective
agreements that are mutually beneficial. In the process, different interests are reconciled.
For workers, joining together allows them to have a more balanced relationship with their
employer. It also provides a mechanism for negotiating a fair share of the results of their work,
with due respect for the financial position of the enterprise or public service in which they are
employed. For employers, free association enables firms to ensure that competition is
constructive, fair, and based on a collaborative effort to raise productivity and conditions of
work.
Collective bargaining : ‘constantly mutating institution’ : i.e. necessarily responsive to economic
demands and circumstances. Nature and extent of legal intervention to regulate collective
bargaining will always reflect particular interests.
One expressly stated purposes of the LRA is to promote collective bargaining and to provide a
framework within which employers, employers’ organisations, trade unions and employees can
bargain collectively to determine wages, terms and conditions of employment, other matters of
mutual interest and to formulate industrial policy.
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