South African Collective Labour Law 2022.pptx

South African Labour Law
Collective Bargaining

1. Collective Labour Law Trade Unions and Employer Organisations

2. Reading Material J Grogan Workplace Law (12 Edition) available on Jutastat e-publications (UKZN database) A van Neikerk & N Smit eds (3 Edition) Law@work Labour Law in LAWSA available on Lexis Nexis (UKZN databases) D Davis ‘The Functions of Labour Law’ (1980) CILSA 213.

3. Industrial Relations Relationships between workers and management in industry Laws, conventions and institutions that regulate workplace “The complex interrelations among managers, workers and agencies of the governments ” (Dunlop).  

4. Purpose of Managing Industrial Relations through Labour Law? Minimise industrial disputes (strikes, lock-outs, go-slows & grievances) – more cooperation = increased productivity High morale – workers have a vested interest in success of enterprise Reduction of wastage of manpower, material & machinery – higher production at minimal cost resulting in higher profits

5. Functions of Labour Law: Market/Libertarian Approach Views employment relations as voluntary exchanges It gives much emphasis on the employment contract – the notion that there is freedom of contract and that whatever terms are agreed as done so by consensus because each has something the other needs Main objective of law is to facilitate unhindered exercise of the freedom to contract

6. Market/Libertarian Approach Claims that law gives employed workers unfair advantage: employers+unemployed Disrupt free enterprise Interfere with business profits May jeopardise the enterprise itself

7. Critique of Market/Libertarian Approach It assumes an even playing field It assumes that the ‘market’ is unregulated/unbiased Ignore that employers routinely pay employees too little – no trickle down ‘consent’ happens in the context of staggering inequality

8. Functions of Labour Law Social Redistribution Approach Law as a method of social and economic redistribution – recognizes the inequality Notion of overturning the imbalances and allowing employees a greater share of the profits More humane conditions of service Labour law has the goal ‘to right the injustices inherent in the capitalist mode of production’ ( Sinzheimer )

9. Social Redistribution Approach Justice and human dignity for the worker Inequality in the negotiating arena therefore: ‘the main objective of labour law [is] … to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship’ (Khan-Freud)

10. But who defined/defines the purposes of Labour Law? Labour law works within specific socio-political and economic arrangements The gains of organized labour are ‘concessions’ given to keep control of workers (Silver) ‘as long as those concessions are made to only a small percentage of … workers’ ( Wallerstein )

11. Who defines the purposes of Labour Law? Davis has argued that the function of labour law is ‘that of control and regulation in order to preserve the … socio-economic structures … so as to protect the interests of those who essentially rule society.’ Recognising trade unions integrates workers into the system and creates ‘a basis of loyalty to the system’ thereby help to lessen worker militancy.

12. South African history Colonialism - control of indigenous population and appropriating natural and mineral resources by foreign nation – ‘natives’ (indigenous populace) distinguished as subordinate to ‘settler’ community (narrative of ‘white supremacy’) e.g. cheap labour rather than employee Apartheid - intensive continuation of colonial separation structured along racial lines (protected interests of white minority at expense of black majority , Indians and ‘coloureds’ ) Democrati c Era – current de jure equity: attempt at more equitable access in hope of secure human rights for all

13. During colonialism and apartheid - law ensure d job security for whites while blacks were excluded from skilled jobs and forced to become menial labour The consequences of apartheid are still visible in present day South African society Democratisation is faced with the task of re - organising the society based on human rights constitutional principles

14. Colonial era 1652 - Dutch establish refreshment station in the Cape Colonies (British) and Boer Republics Discovery of diamonds and gold and establishment of mining industry in the mid – late 1800s

15. Danger of depicting wealth generated in SA during colonialism and apartheid as indicative of the superiority of white economic culture and political ethics and ignoring the enslavement and ‘ super exploitation ’ of the majority of citizens in order to achieve these profits for a white minority. The colonised aboriginal citizens were not beneficiaries of the spoils of ‘ conquest ’. Civilisation?

16. Labour History = “Native Question” ‘ civilising ’ intent motivation/justification is a minor and contested notion among the overall identified objectives of colonialism In fact settlers saw ‘enlightened’ economically independent natives as threat to labour requirements on farms, construction sites and mines ( Hickel , Dennis) ‘The Natives are independent they have land and grow what they choose, and their wants are …small’ (Cape Labour Commission 1893-1894) This made ‘natives’ disinclined to voluntarily enter waged labour in the service of white settlers – they already met their needs adequately with their existing ways of life – they didn’t need money

17. ‘Native question’ – Natal Coolie Law 1859 (Law No. 14 of 1859) Between 1860-1911 about 152 000 Indentured Indian immigration to work on sugar cane farms – because of unavailability and inconsistency of voluntary African labour Mid 1870s Indian entrepreneurs and an educated elite developed – 1893 Natal passed a law to legally subordinate Indians to white settlers

18. “Labour question” “Native Question” ‘Native question’ - related to the use and control of Africans as labour NOT employees while maintaining a privileged status for white workers Forcing Africans into waged labour made them servants of white settlers – a solution to the ‘native question’ Africans were disposed of arable land and forced to pay taxes

19. Native Tax An Example is Article 15 of the Native Act ‘ Kaffer wet’(Law 9 of 1870) Transvaal Rep stated: ‘For the privileges and protection the natives enjoy from this Government and for the purpose of in this way making them liable to service to the white residents, it is resolved and determined by these present that the natives and other coloured people shall annually pay a tax for the benefit of the Government of this Republic’ Also see Glen Grey Act 1894 in the Cape which Cecil John Rhodes (Minister of Native Affairs at the time) stated was not slavery but ‘some gentle stimulus to come forth and find out the dignity of labour’ (Caledon Code 1806; Trevor)

20. Natal Law 13 of 1857 imposed 14 shillings/hut After Anglo-Boer War tax increased in Natal (1 pound poll tax on each African male over 18 + hut tax) – 1906 Bambatha rebellion

21. Collective labour - Industrial Revolution in Britain late 18 century rise of industrialisation in Britain move towards industrialised society - specialisation of economic activity directed at large scale consumption; migration of people to the city; depersonalisation of unit production; emergence of social classes based on ownership of capital not just land mass production located workers centrally for division of labour - some workers became more specialised

22. Historical Overview 1867/1870 discovery of diamonds and then gold influenced the development of trade unions - it led to an influx of labour to the mines and the establishment of large industries Diggers Committees (Griqualand West; ZAR) These unions excluded black workers Blacks generally regarded as cheap unskilled labour that could be used by employers to undermine the job security and high standard of living of white unionised workers

23. Digger’s Committees (1871 onwards) arguably set the tone for SA unionism Digger’s Committees formed at the Griqualand West mines – they were whites only They protested against African and other non-white people being given prospecting or digging licences – asserting that Africans could only be labourers in service of whites. Many Africans were harassed (accused of stealing), assaulted and killed – culminating in the digger’s revolt of 1875 saw the killing of Africans

24. Law incorporated Digger’s Commitee Stringent pass laws applicable to Africans were developed at the mines Gold laws of the ZAR prohibited the presence of Africans on the mines except as labourers for white licence holders – laws specifically said only ‘white persons’ could be granted a licence to prospect or licence to dig ( Gold law No. 7 of 1874, Gold Law No. 6 of 1876 ) The Industrial Disputes Act (1909) Transvaal – carried on the trend defining ‘employee’ as a ‘any white person’ while making provision for mediation/conciliation during industrial disputes

25. SA Union 1910 – Bifurcated State Effectively divided the state into to parts A union of 4 settler colonies creating a white minority parliamentary democracy Subjecting the majority of black South Africans to autocratic (oppressive, disenfranchised) administrative rule – at creation of union black vote was not extended beyond the Cape to former Boer Republics

26. SA Union – Bifurcated State Africans were to be governed separately by chiefs under the Governor-General in Council - s 147 African chiefs were said to have transferred their sovereign rights to the British Crown thus the Crown could administer ‘natives’ according to traditional forms of governance ( Lagden Report – South African Native Affairs Commission 1903 ) The rights of Black South Africans were ignored the union catered mainly for Whites

27. Mines - skilled and unskilled labour Skilled - white men imported from Britain and Australia Unskilled - inexpensive black Africans - the imposition of a poll and hut tax forced black subsistence farmers to seek employment Early 1900s poor whites unhappy to compete with more skilled black workers Mines and Works Act 12 of 1911 – its regulations excluded non-Europeans from certain kinds of work - excluded Blacks from semi-skilled & skilled jobs – reserved for whites and coloureds Native Labour Regulations Act 1911 prohibited strikes by black workers Violent strikes of white miners in the Witwatersrand in 1922 Industrial Conciliation Act 11 of 1924 - provided for mandatory conciliation and mediation before a strike; mandated the registration of white trade unions; excluded black workers from the definition of ‘employee’ (thus excluding blacks from formal union membership)

28. SA Union Labour Laws Wage Act of 1925, Industrial Conciliation Act of 1937

29. Apartheid 1948 - Suppression of Communism Act 44 of 1950 - banning of political organisations and trade unions Civil unrest led to Botha Commission 1953 -recommendations relating to trade union rights of blacks ignored Bantu Labour (Settlement of Disputes) Act 48 of 1953 - established workers committees which referred unresolved disputes to regional committees, then central board with the Minister of Labour having final say & Industrial Conciliation Act 28 of 1956 - prevented asians , coloureds and blacks from joining multiracial trade unions or forming segregated branches of white unions; extended white job reservation to industry and commerce

30. Sharpeville Massacre 21 st March 1960 Blacks were subject to Pass Laws as a method to control of their movements and employment in urban districts. Black people over the age of 16 had to carry pass books which had influx authorisation from a labour bureau, name of employer and address – these passbooks were extended to include women in 1959-1960 The massacre occurred at the police station in the township of Sharpeville in Transvaal (Gauteng) Police opened fire on a crowd of +- 5 000 black protesters and 69 people were killed and +- 200 were injured

31. Sharpeville Massacre aftermath In the aftermath there were protest marches, strikes and riots around the country – leading to government declaring a state of emergency on 30 th March 1960 – thousands (18 000) of people were detained including ANC & PAC leadership There was also international protest in the form of sympathetic demonstrations in many countries and the UN Security Council passed Resolution 134 on 1 April 1960 condemning the massacre and the policies of apartheid Banning of ANC & PAC (8 April 1960)

32. International Condemnation Increased Isolation 1962 UN GAss condemning apartheid policies 1964 UK & US discontinue arms trade with SA 1973 UN Apartheid Convention – defined apartheid as a crime against humanity 1974 resolution to expel SA from UN vetoed by US, UK and France 1977 mandatory UN arms embargo 1980s Trade sanctions and disinvestment from SA

33. Black Consciousness Movement An anti-apartheid movement arising out of the vacuum created when ANC and PAC were banned following Sharpeville Advocates a psychological/mental ‘awakening’ which rejects a narrative of the inferiority of the Black person Idea that black people should take pride in their blackness as an important step in their personal liberation (Martin Delany, Marcus Garvey, Alain Locke, Frantz Fanon etc.) Black Consciousness challenges the notion that ‘whiteness’ is ‘normal’ and that ‘blackness’ is an aberration (deviation, abnormality, oddness) – aiming to infuse into the black community a sense of pride and self-respect Steve Biko , Onkgopotse Tiro , Tsietsi Mashinini

34. 1970s Rise of black militant opposition and violent protest – increasing strike action from workers e.g. Durban 1973 61 000 – 100 000 black workers in the textile and engineering sectors 1976 Soweto uprising – massive disinvestment in SA in ensuing years international community spoke out against apartheid

35. Wiehahn Commission 1979 Recommendations A mendments to Industrial Conciliation Act to include Black workers in the definition of ‘employee’ thereby including them in the collective bargaining framework Black workers would then be entitled to freedom of association and register black unions as such Creation of specialised industrial court for labour disputes FOSATU formed April 1979 eventually dissolved into COSATU in December 1985

36. Industrial Conciliation Amendment Act 1979 Defined ‘employees’ only entitled to legal residence within the boundaries of SA – effectively excluded migrants Workers still remained categorised and segregated Dualistic system lasted until the 1980s Labour law reform ‘deracialised’ laws Current labour law (LRA) seeks to transform collective labour law to become more co-operative rather than adversarial

37. External Factors Affecting Industrial Relations & Collective Bargaining  The economy - employment levels can affect the bargaining power of employees, with high unemployment and relatively easy acquisition of labour strengthening the employer's position etc. Technological change - greater mechanisation and computerisation can reduce the organisation's need for and dependence on high numbers of staff, while at the same time requiring a different range of skills and knowledge Political decisions - different governments will have different economic policies which affect the balance of power in organisations The legal system - legislation sets minimum standards and regulates the basis on which workplace relationships are conducted

38. Why workers join trade unions Collectively unite to protect their interests and guard against exploitation – strong position Unions ensure that wages meet increasing living standards Unions fight for decent working conditions Job security – interventions against unfair dismissal, retrenchments Political reasons – socio-economic interests – exert power in politics e.g. COSATU lobbying for ban of labour brokers

39. What are the pros and cons of the union effect? Wages and working conditions based on collective bargaining are generally better – high wages limit the supply of labour (fewer people have jobs) Unionised wages do not fall in times when there is an oversupply of labour or demand for the employer’s product is falling – this may jeopardise the viability of the enterprise

40. Labour Market Flexibility Is it a good thing or a bad thing? Extent to which employer can change aspects of work and the workforce to meet demands of business e.g. reduce wages/workforce Existence of institutional factors e.g. law and policies which are seen as impeding the operation of a purely competitive labour market Should the market be able to respond to economic conditions through wage, numerical, work time & functional flexibility?

41. Collective Labour Law Governs relationship between employers and employees as collectives Employees and employers as distinct and opposing interest groups each trying to promote and protect respective interests For employees strength lies in collective organisation and action Individual contractual freedom displaced by collective bargaining

42. Collective Labour Law Regulates the relationship between labour and management as collective entities Regulation aims to ensure orderly exchanges in an equitable manner recognising the desirability of joint decision-making and responsibility for the common good of the business and the economy as a whole (s 1(d) LRA) A component of transformation and democratisation of the workplace

43. Constitutional Provisions s 23 S 23(2) Rights of every worker To form and join a trade union (TU) To participate in the activities and programmes of a TU; and To strike S 23(3) Rights of employers To form and join an employers’ organisation Participate in activities and programmes of EO

44. Rights of Trade Unions and Employers Organisations s 23(4)(5) & s 17 To determine its own administration, programmes and activities To organise To form and join a federation To engage in collective bargaining To participate in a peaceful protest

45. Labour Relations Act 66 of 1995 Objects/Purpose s (1) Create framework within which employees and their unions and employers and their organisations can collectively bargain – wages, employment conditions & matters of mutual interest formulate industrial policy Promote orderly bargaining and employee participation in decision making and effective resolution of labour disputes

46. Right to form and Join Trade Union s 23 Constitution – LRA s 4, 5 & 6 LRA gives every employee the right to freedom of association P articipate in forming TU/TU federation Participate in its lawful activities, election of office bearers and to stand for election (s 4) Protection from discrimination on the basis of union membership (s 5) Employers’ right to associate (s 6)

47. Trade Union Representativeness Representation of a collective is vital to the bargaining process Without sufficient representation unions lack legitimacy at the workplace and bargaining councils (sectoral level) TU must therefore present employer with credible evidence of membership

48. Trade Union Representation Approaches Majoritarian approach : The employer need only negotiate with the trade union which enjoys the support of the majority (50,1 per cent or more) of the employees . Pluralist approach : The employer must negotiate with every trade union that enjoys substantial support or which is sufficiently representative of the employees. This will usually be the case if a trade union has the support of about 30 per cent or more of the employees. The allcomers approach : The employer is compelled to negotiate with every trade union represented in the undertaking, however small its support might be.

49. LRA Trade Union Representativeness Approach Only trade unions/union coalitions that are sufficiently representative of workers in the workplace (s 11) can: Access to the workplace (s 12) Deduct subscriptions via employer (13) Leave for union office bearers (s 15 ) (for purposes of s 12, 13 & 15 LRA representative trade union = sufficiently representative of workers in the workplace)

50. Organisational Rights of sufficiently representative union (s 11) In terms of s 12 the representative TU is entitled to enter the employer’s premises to recruit members or communicate with its members and serve their interests. It can hold meetings on the premises (outside working hours); organise an election or ballot subject to reasonable and necessary safeguards to life and property or to prevent undue disruption or work (s 12). Members of representative trade unions can authorise the employer to deduct union dues from their wages for the union (s 13 ). S 15 relates to leave entitlement for a trade union office bearer – office bearer may take reasonable leave during working hours to perform functions of TU RTU and ER may agree on number of days.

51. LRA Trade Union Representativeness Approach Only trade unions/union coalitions that have the majority of workers as (members in a workplace) are entitled to: Elect union representatives (s 14) Disclosure of information (s 16) Conclude an Agency Agreement (s 25) Conclude a Closed Shop Agreement (s 26) Establish Workplace Forum (78)

52. Organisation rights of majority trade union/union coalitions In order to acquire s 14 & 16 rights a “representative” TU means a registered TU (or union coalition) that has as members the majority of the employees employed in the workplace – 50% + 1. S 14 relates to having shop stewards, TU representatives e.g. representing employees in grievances and disciplinary proceedings, employer compliance monitors and allowing time off for performance of TU functions and trainings. S 16 entitles the TU to the disclosure of information when consulting or bargaining that is relevant and will allow the union to engage effectively in consultation or collective bargaining.

53. LRA Trade Union Representativeness Approach A trade union with majority membership in the workplace or bargaining council may Conclude a collective agreement with the employer establishing a threshold of representativeness required for the acquisition of organisational rights in s 12, 13 and 15 (s 18)

54. LRA Trade Union Representativeness Approach - Majoritarian LRA promotes the policy choice of majoritarianism – even though to some extent the pluralist approach is also accommodated in acquiring some TU rights (s 11,12 & 13, s 29(11)(b)(iv )) LRA favours granting trade union organisational and collective bargaining rights to TUs that have majority membership in a workplace

55. LRA Trade Union Representativeness Approach - Majoritarian The Labour Appeal Court in Kem -Lin Fashions CC v Brunton explained the majoritarian principle as follows: “ the will of the majority should prevail over that of the minority. This is good for orderly collective bargaining as well as for the democratization of the workplace and sectors … a proliferation of trade unions in one workplace or in a sector should be discouraged.”

56. LRA Trade Union Representativeness Approach - Majoritarian section 21(8)(a)( i ) of the LRA directs commissioners, when resolving disputes on whether to grant/recognise organisational rights of a TU, to: seek to minimise the proliferation of trade union representation in a single workplace, and where possible, to encourage a system of a representative trade union in a workplace; and to minimise the financial & admin burden on the employer who grants organisational right to more than one union

57. Trade Unions Definition ‘associations of employed persons for collective bargaining about their conditions of employment and also for the provision of benefits, legal defence and the promotions of their members’ interests by bringing pressure to bear on governments and parliaments and, in certain cases, political action’ ( LAWSA )

58. Trade Union Statutory Definition s 213 LRA ‘an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers’ organisation’ Employees join unions and then from a position of collective strength and represented by their union negotiate more favourable conditions which are not provided for by legislation = collective bargaining

59. Collective Bargaining Unions and Employers Organisations (EO) negotiate with intention of reaching agreement on employment conditions & or matters of mutual interest Bargain – opposing parties exchange demands, make counter-demands, accept or reject proposals; compromise; place pressure on other to give in to demands [negotiate]

60. Collective Bargaining If successful CB leads to the conclusion of a collective agreement Pressure tactics include strike, lockouts, pickets LRA facilitates CB by facilitating workers’ rights to join unions (s 4, 5, 6) and the right to strike (s 64), organisational rights to TUs (s 12-25), right to ERs to lockout (s 64) and interdict unprotected strikes (s 68) and recognising collective agreements as binding and enforceable (s 23)

61. Functions of Trade Union Bargain on behalf of its members Represent members in disciplinary inquiries Take up grievances on behalf of members Only registered trade unions can become members of a bargaining council (s 27) and can enter into binding collective agreements (s 23)

62. Functions of Trade Union Consult with employer during proposed retrenchment of EE union members Make representations to the state or NEDLAC regarding labour matters NEDLAC = social partnership between business, labour and government & the community to promote economic growth, participation in economic decision making and social equity etc.

63. Trade union formation Once a trade union is formed it can function and recruit membership outside of the workplace without being registered. But in order to gain entry to the workplace and acquire “organisational rights” part A of Chapter III LRA certain conditions must be satisfied.

64. Trade Union Registration TU may exist and function without being registered but most ( organisational ) rights conferred by LRA are restricted to registered Tus Registration requirements (s 95, 96) Distinct name (not confused with existing TU) Independence (from employer & or EO) Legally compliant constitution (s 95(5))

65. Trade Union Liability Union officials may not be held personally liable for damages caused by acts performed in good faith in course of their duties (s 97(3)) Union may be held liable for damage to third parties if they convene gatherings which they should have reasonably foreseen would end up as riots ( SATAWU v Garvis (2011) 32 ILJ 2426 (SCA)) Obliged to keep proper records – financial accounts, members, ballots, minutes etc.

66. Trade Union Membership EE have a right to join or not to join TU of their choice – freedom of association (except where there are security arrangements – closed or agency shop) Racially exclusive unions cannot be registered Employees are protected from victimisation for joining TU exercising TU rights (s 5(2)(c) Membership is open only to ‘employees’ Membership is not automatic TU can expel members in terms of its constitution Members can sue TU for damages where it acts to their detriment ( FAWU v Ngcobo )

67. Organisational Rights of Trade Unions s 11 – 22 TU must be sufficiently representative of employees in order to have statutory organisational rights Majority union (representing majority of workers in workplace) will have all statutory organisational rights Registered union has reasonable access to the workplace and bargaining council

68. Organisational Rights of sufficiently representative union (s 11) In terms of s 12 the representative TU is entitled to enter the employer’s premises to recruit members or communicate with its members and serve their interests. It can hold meetings on the premises (outside working hours); organise an election or ballot subject to reasonable and necessary safeguards to life and property or to prevent undue disruption or work (s 12). Members of representative trade unions can authorise the employer to deduct union dues from their wages for the union (s 13 ). S 15 relates to leave entitlement for a trade union office bearer – office bearer may take reasonable leave during working hours to perform functions of TU RTU and ER may agree on number of days .

69. Organisation rights of majority trade union/union coalitions In order to acquire s 14 & 16 rights a “representative” TU means a registered TU (or union coalition) that has as members the majority of the employees employed in the workplace – 50% + 1. S 14 relates to having shop stewards, TU representatives e.g. representing employees in grievances and disciplinary proceedings, employer compliance monitors and allowing time off for performance of TU functions and trainings. S 16 entitles the TU to the disclosure of information when consulting or bargaining that is relevant and will allow the union to engage effectively in consultation or collective bargaining.

70. Acquisition of Organisational Rights By Trade Unions TU notifies the employer in writing that it seeks to exercise one or more rights in the workplace (s 21(1)). The notice must include TU certificate of registration and demonstrate the representativeness of the TU along with the rights it seeks to exercise (21(2)). Within 30 days employer must meet with TU and try to conclude a collective agreement as to the rights and their exercise in the workplace (s 21(3)). If agreement is not reached either party can refer the dispute to CCMA (s 21(4)). Commissioner must first try conciliation and if that fails either party can refer dispute to arbitration.

71. Acquisition of Organisational Rights By Trade Unions TU approaches ER and negotiate agreement on manner TU will exercise org rights System of RTU encouraged to minimise admin burden of many unions in one place Legislative support for ‘ majoritarianism ’ s 21 Minority union get s 11, 12, 13 & 15and some times s 14 rights (if they join RTU) Org rights can be withdrawn from TU that cease to be representative (s 21(8)(c)

72. Collective Agreements A written agreement between registered TU(s) and ER(s) concerning terms and conditions of employment or any other matter of mutual interest (s 213) Binding on all parties to the agreement, for the whole period of the agreement – members of the TU(s) and those (EEs & ERs) identified in the agreement (s 23)

73. Collective Agreements s 23 Binding on every present and/or future employee in the workplace Principle of ‘ majoritarianism ’ applies EEs are bound by bona fide agreements concluded on their behalf

74. Agency Shop Agreements s 25 CA between RTU or RTU coalition with 50+1 majority and ER or ERO requiring a deduction of agreed agency fee from wages of EEs who are not members of the TU Agency fee may be deducted without the EE’s authorisation EEs not compelled to belong to Agency- Sh TU Monies paid into separate account administered by RTU to advance socio-econ interests of EEs

75. Closed-shop agreements between trade union & employer s 26 CA between representative trade union and ER that all EE covered by the agreement must be members of the TU ‘ Representative trade union ’ = a registered TU, or two or more registered TUs acting jointly, whose members are a majority of the employees employed Closed-shop agreement is binding only if 2/3 majority of EEs to be covered by it vote for it; & requires RTU membership only once employed

76. Effect of Closed-shop agreements s 26 ER may dismiss EE who do not become members of the RTU or cease to be members Expulsion from RTU must be in accordance with its constitution

77. Closed Shop and the Right to Freedom of Association Right to freedom of association (s 18) + right to join and form a trade union (s 23(2) Does right to join include right not to join? LRA limits this freedom Should workers be forced to join/associate with trade unions?

78. Employers’ Organisations Any number of ER associated together or the purpose of regulating relations between ERs, EEs & TUs (s 213) They must be genuine – not just operating for private gain Rights similar to those of TU are given ER orgs ER orgs can also form federations which have locus standi before LC

79. Collective Bargaining Labour law prescribes certain minimum working conditions in the BCEA and certain rights in the LRA and EEA and other laws. Generally prescribe things like minimum wages (except for domestic workers), bonuses, pension and medical aid