LRALecture 10

Process of bargaining No legal duty to bargain, but affords certain

rights to trade unions:› Organisational rights;› Right to form a bargaining council;› Right to enjoy advantages of workplace forum;› Right to enjoy benefits from closed – or agency shop

agreements.

Refusal to bargain can lead to power play (strikes) if it is a matter of mutual interest.

CCMA must issue an advisory award regarding the dispute before industrial action may commence.

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The acknowledgement of a trade union by the employer is the beginning of collective bargaining. He must recognise a registered trade union and grant them their organisational rights.

Conflict will arise in the absence of the obligation to bargain. These structures will lead the parties in the bargaining process.

. Representation is divided into 3 categories:

1) 30% Membership: Minimum requirement to establish a statutory council

2) Sufficiently representative (30%/more): a. May demand organisational rights;

3) Majority membership (50% + 1):a. May demand statutory rights ito agency

-/closed shop (and workplace forums) agreement. Two / more unions may join to form majority.

ORGANISATIONAL RIGHTS

Sufficiently representative unions:1) Access to the workplace:

a. An office-bearer may enter workplace to recruit and communicate with members;

b. Meetings with employees outside working hours;c. Members may vote at elections. (Rights are limited –

p.233).

2) Deductions of union subscriptions form member’s wages

a. Member may authorise deductions of levies;b. Deductions made before 15th of following month;c. Must be accompanied by list of names of members

who have paid;d. Authorisation may be revoked.

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3) Leave during working hours for office bearers:

a. TU-member may receive reasonable leave during office-hours to take part in TU activities – per agreement with ER.

Majority Trade Unions:

These unions have all the rights mentioned above AND:

1) Right to disclosure of information› ER has to disclose all info necessary to effectively take

part in collective bargaining, EXCEPT: Privileged info; Info excluded by law; Confidential information which could damage the ER; Personal info of EE.

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2) Appointment of union representatives on a sliding scale› See p.234.

3) Paid leave for representatives› During working hours for training in relevant

subject.

REGISTERED UNIONS THAT ARE PARTIES TO A COUNCIL WILL AUTOMATICALLY HAVE CERTAIN RIGHTS-,REGARDLESS OF THEIR REPRESENTATIVENESS.

Right to exercise the organisational rights:› TU must inform ER of intention to exercise a

right.› This notification must be accompanied by

the TU-certificate of registration and must include: The workplace were the rights will be

exercised; The representativeness of the TU; The relevant right to be exercised.

ANY disputes may be referred to the CCMA.

Collective agreements

Must be in writing

Between a registered trade union and an employer’s organisation or employer AND

Deal with terms and conditions of employment or any other matter of mutual interest.

This may vary a contract of employment

Must contain dispute resolution procedure

Legal effects of collective agreements

Binds parties to the agreement

Each party to the agreement and the members of every other party thereto in so far as the provisions are applicable to them

Terms and conditions of employment terms regulating conduct of parties: members of a registered trade union and employers who are members of a registered employer’s organisation.

Employees who are not members to the union who is party to the agreement if they had been identified in the agreement and the union who entered into the agreement, enjoys the support of the majority of the employees in the workplace.

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It even binds employees who cease to be members of the union after they had been members when the collective agreement was concluded.

The same applies to employers and employer’s organisations

Any party can give reasonable notice of termination if no time/duration was specified in the written collective agreement.

Agency shop agreements and closed shop agreements

Applies to a registered majority union and an employer/employer’s organisation.

Must pay over union subscription fees to the union after deductions form the pay of union members

Those employees who are not members of the union to the agency shop agreement must be identified and must be eligible to become members of the union , they may however not be compelled to become members of the said union

Not to be used for a political party

Closed shop agreement A registered majority union with an employer/organisation Ballot must beheld amongst employees and 2/3 of them support

such an arrangement

All employees must become members of such a union POST employment commenced

New employees could be shown the door if they do not become members of the union party to the closed shop agreement

It is not unfair for an employer to dismiss an employee who refuses to join the union which is party to the closed shop agreement or who is refused union membership or who is fairly expelled form that union.

If you were already employed when a closed hop agreement comes into operation, you may refuse to become a member , but fees will be deducted in any event.

Conscientious objectors – not be dismissed but fees will be deducted