Monday, 6 October 2014

Trade union

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 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.

Duties in terms of equity legislation:

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




[1]Employment equity Act 55 of 1998 (EEA)
[2]www.Labour.gov.za/DOL/Legislation/acts/basic-guide-to-trade-union-representatives.

1 comment:

  1. 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.

    ReplyDelete