Theme Seven

Collective Bargaining
FREEDOM OF ASSOCIATION (CH13)

 BOR
 Section 4 and 5 of LRA (CH2 of LRA)(T/U)
 Applies to work seekers
 Sections 6 and 7 of LRA (CH2 of LRA) (E/O)
 Disputes: CCMA/BC for Con then LC (Sec9)
 Sec10 – burden on party who alleges
Recognition and Duty to Bargain (par
14.2)
 There is NO legally enforceable duty to bargain/
 there is no duty on employers to negotiate – merely encouraged
 Should employers refuse to bargain, employees may possibly strike (CH4 OF
LRA – see theme 8)
 Possible tools to encourage C.B (duty to bargain):
 Organisational rights (CH3.A of LRA) / Strikes /
 Workplace forum / agency shop and closed shop agreements
 This is sufficient for par 14.2- Leave rest of paragraph
REPRESENTIVITY

 MAJORITY REPRESENTATVIVE (ALL)

 SUFFICIENTLY REPRESENTATIVE (IN PRINCIPLE: 12;13;15)
 SEE section 21(8A) – Can obtain other rights at CCMA @Arb if no other (most
representative) T/U has rights. Working of 21(8A) ceases when 21(8B) applies
thus not most representative anymore
 MINORITY REPRESENTATVIVE (IN PRINCIPLE: NONE)
 REPRESENTIVITY DETERMINES AMOUNT OF ORGANISATIONAL RIGHTS (CH3.A OF
LRA… SECTIONS 12-16)
 ´ Sec 18 – Col agreement (Maj T/U & Empl) to establish representivity to
obtain rights for secs 12;13; and 15 (Basic rights)
 Employer can bargain with employee for rights “WORKPLACE”
Organisational rights (Par 14.3)
NB! CH3A of LRA (P264-266)
1.
1. Right of access to workplace – (Sec 12)
 Purpose: recruit members, communicate
2. Deduction of union subscriptions (Sec 13)
3. Appoint TU representatives (shop stewards) @workplace
(Sec 14)
4. Leave during office hours for office bearers (paid leave)
(Sec 15)
 5. Disclosure of info (Sec 16) (SEE P264-266)
Organisational rights (par 14.3)

 NB: Not all trade unions are entitled to ALL the organisational rights.
 Which unions are entitled to org rights?
 Majority trade union: entitled to all six rights
 Sufficiently representative trade union:
 entitled to three rights (1, 2 and 4) but can acquire other rights ito of 2014
amendments
 Member of Bargaining Council:
 automatically receive first 2 rights (1 and 2) regardless of representivity
Exercise of Org Rights (par 14.3.6)
NB! (SEC21)
 Procedure to be followed if Trade Union wants to exercise 1 or more organisational right
Notify ER in writing:
 Attach proof of registration of TU
 State the workplace where rights are to be exercised
 State what is representation at workplace
 State which organisational rights are requested
 Manner in which T/U which to exercise
 If Suf/Maj then state facts relied upon to prove
 Er: within 30 days after received notice – meet with TU to negotiate
 TU & ER conclude Collective Agreement OR
 Refer to CCMA for Con then Arb (NOT BC) – see next slide
Disputes regarding organisational rights
(par 14.3.7) - NB
 If no Collective Agreement: dispute must be referred
 Only to CCMA (not Bargaining Council)
 By any party
 Commissioner: Conciliation
 No resolution: arbitration
 Factors to be considered where dispute about representativeness of Trade
union (Guard against Proliferation)
 See factors on page 268 which Commissioner will consider in giving
organisational rights
Collective Agreements (par 14.6)
NB
 Legal Effect: who does it bind? (14.6.1) – P271
 Agency Shop Agreements (14.6.2) - S25 of LRA
 Agreement concluded between ER and majority union, which requires agency
fee to be deducted from non-union members eligible for membership
 Only binding if non-members are not compelled
Collective Agreements (par 14.6)
NB
 Closed Shop Agreements (14.6.3) – S26 of LRA
 Agreement between ER and Maj Union: Requires all
employees covered by agreement to become members of
the TU
 Funding agreement (Monthly BC levies) 12 month validity
DISPUTE RESOLUTION – COLL
AGREEMENTS
 Follow process in agreement or CCMA
 CCMA Exclusive jurisdiction: Party frustrates process /
Suggested process become in operative & No process
prescribed.
 CCMA only can hear disputes about S25 & S26 (ONLY TIME
RIGHTS TO APPEAL TO LC EXIST)