Chapter 1: The right to join and participate in trade union
As a starting point, all workers and job
seekers have a fundamental right to freedom of association which entails the
following: to form a trade union; join a trade union; take part in lawful trade
union activities; and be protected from employers or others who discriminate
against them because of their membership or activities[1]
1.1 Are
there limitations on the right to join a trade union?
There are
categories of employees who are limited and excluded from participating and
joining a trade union in terms of section 2 of the latte stated Act[2].
The first of these are employees who work in state departments which are involved
in times of emergency and national crisis e.g. National Defence Force, the National
Intelligence Agency and etc. The reasoning for this is that these departments
work under the strictest discipline and by introducing trade unions this could
undermine the rigid hierarchy system in the military. This was disputed in the
case of South African Defence Union v Minister of Defence and another 1999 (4)
SA 469 (CC). The court stated that members of the Permanent Force of the SANDF
are workers in terms of section 23(2) of the Constitution and it does not distinguish between workers and trade unions depending on the nature
or industry in which they work[3].
The other category which may be limited when it comes to rights to join a trade
union is managerial employees but this was also proven otherwise in the case of
IMATU and others v Rustenburg Transitional Council [1999] 12 BLLR 1299 (LC)[4].
The argument was that they could misuse their benefit to access to confidential
information against the company but the court held against this believes[5]
1.2 The
remedy for prejudice based on union membership or activity
The Labour Court unanimously
held in the case of Kroukamv SA Airlink (Pty) Ltd ILJ 2153 (LAC) that
dismissing an employee for taking part in union activities was automatically
unfair dismissal and also stated that if the main reason for the dismissal is
connected to activities which were conducted on behave of the union, such
behavior would be seen as automatically unfair[6].
Such conduct is also seen as unjustifiable and at direct violation of the
constitutional duty for fair labour practice[7]
2.1 A registered trade
union.
According to the Labour Relation Act
organizational rights are limited to those who have been registered in terms of
sections 95 and 96 of the latte act[8].
2.2 A sufficiently
representative union
In terms of Section 11 of the Labour
Relations Act this is defined as a registered representative trade union, or
two or more registered trade unions acting jointly, that are sufficiently
representative of the employees employed by an employer in a workplace[9].
There are no stipulated guidelines as to the level of membership of a union
before it can be seen as sufficiently representative, but in some cases unions
have been able to argue that because they have 25% employees’ representation
below a certain grade[10].
2.5 A closed shop
agreement.
This is a collective agreement between a
trade union and employer or employers’ organisation in which it states that all
employeescoveredby the agreement should be members of the trade union[11].
This agreement is only binding when there a vote and two thirds of the
employees who voted have voted in favour of the agreement[12].
2.6 Disputes
about agency shops and closed shops
When there are disputes about
interpretation or application of any agency or closed shop agreements they must
be sent to the CCMA so that there could be conciliation and arbitration[13].
According to section 24(6) and (7), an arbitration which is awarded may be
taken on appeal to the Labour Court[14].
When the dismissal disputes are connected to closed shop, the matter can be
referred to the CCMA or relevant bargaining council, or if not resolved it must
be referred to the Labour Court for adjudication in terms
of section 26[15].
[1]http://www.labour.gov.za/DOL/legislation/acts/basic-guides/basic-guide-to-trade-unions
08.04.2014
[2]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
[3]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
[4]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
[5]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
[6]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
[7]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
[8] T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
[9]Labour Relations Act, Section 11
[10]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
[11]Labour Relations Act, Section 26
[12]Labour Relations Act, Section 26
[13]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
[14]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South
Africa”
[15]T. Cohen, A. Rycroft, B, Whitcher “Trade Unions and the Law in South Africa”
Duties of a trade union
Duties of a trade union
Duties of
trade unions, trade union officials and trade union representatives.
The duties of trade unions, trade union officials and
representatives are born form statute and from case law.
Duties in
terms of the LRA:
In terms of the
LRA, duties are place upon trade unions and most of them are related to the
recognition given to registered trade unions. Therefore every registered trade
union has the following duties:
·
Keeping
books and records of its income, expenditure, assets and liabilities, prepare
financial statements, and to preserve them for at least three years.
·
To
have its books and records checked and audited.
·
Making
financial statements and auditor’s reports available to members for inspection
and submitting them to member meetings.
·
Keeping
a list of members, minutes of meetings and ballot papers for al least three
years.
·
To
provide the register with a copy of the auditor’s report, names and details of
office bearers, notice of change of address.
Employment equity Act 55 of 1998 (EEA)[1] is
not only to prevent unfair discrimination by employers. Section 6says that “no
person may discriminate” meaning employers, workers, trade unions etc all have
a duty not to discriminate unfairly. Resulting in the fact that a trade union
may not unfairly discriminate against any of its members according to
section5(6) of the LRA and section 6 of the EEA.
At a
regional level officials work in:
·
Advertising
workers of legal, health and safety issues.
·
Recruiting,
training and supporting local officials.
·
Working
on local disputes and casework.
At a
national level officials work in:
·
Development
of national policy.
·
Research.
·
Media
Relations.
·
Negotiations
with employers, organisations, political parties and government.
According to the Guide
to Trade Union Representatives[2];
representatives help monitor and act or speak on behalf of the workers in their
official capacity. Such persons are chosen from the members of registered
unions.
Functions
of trade union representatives:
·
Assist
and represent workers upon request, in grievance and disciplinary hearings.
·
Monitor
the employer’s obedience to the Labour Relations Act, laws regulating terms and
conditions of employment to adhere to the law or agreement to the employer,
representative, trade union, any responsible authority or agency and to perform
any other function consented to by the trade union and the employer.
In any workplace where there are 10 or more workers who
are members of registered trade unions, the workers may elect representatives
amongst themselves.
The number of representatives is calculated as follows:
Trade Union Members
|
No. of Trade Union Representatives
|
Maximum No. of Trade Union Representatives
|
10
|
1
|
-
|
10 +
|
2
|
-
|
50 +
|
2,
+ 1 for every additional 50 members
|
7
|
300 +
|
7 for 1st 300 members
+ 1 for every additional 100 members
|
10
|
600 +
|
10 for 1st 600
+ 1 for every additional 200 members
|
12
|
1,000 +
|
12 for 1st 1,000
+ 1 for every additional
500 members
|
20
|
Wow, this is very informative. I have an uncle who wanted to start his own trade union but he was told he cnt becoz then he wont get a job. turns out the law says he can. Great work guys.
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