The most important change brought about by the amendments of the Labour Relations Amendment Act, No. 8 of 2018 (LRA) is the conferral of rights in terms of section 14 and section 16 to minority unions, which have in the past been given exclusively to majority unions. In addition, the amendments allow, if certain conditions are met, for a trade union that does not meet a threshold established by a collective agreement in terms of section 18, nevertheless, to be granted rights in terms of section 12, section 13 or section 15 of the LRA.
In the case of Police and Prisons Civil Rights Unions v South African Correctional Services Workers Union and Others (2018) 29 SALLR 8 (CC), the court outlawed the abuse of a trade unions’ majority status to deny workers of minority unions their right to recognition, collective bargaining and freedom of association.
The question before the Constitutional Court was whether a minority union was barred from entering into a collective agreement with the employer to acquire organisational rights where a threshold agreement was already concluded between a majority union and the employer, and the minority union did not meet the threshold in terms of that agreement in order to acquire the rights.
In the Constitutional Court’s majority judgement, pertaining to the essential dispute, it was decided that it would be in the interest of justice to interpret the meaning of section 18 and section 20 since such interpretation may still influence disputes arising in future.
POPCRU, the majority union, argued that a section 18 collective bargaining agreement was effectively binding on all parties, as well as trade unions which are not parties to the threshold agreement, in terms of section 23 of the LRA.
Section 18(1) states, “An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace, or the parties to a bargaining council, may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15″.
SACOSWU, however, stated that a section 20 collective bargaining agreement supersedes a section 18 collective bargaining agreement, as section 20 clearly states, “Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights.”
Ultimately, the Constitutional Court found that POPCRU’s interpretation of section 18 was incorrect as it would effectively deny minority unions the right to engage in collective bargaining.
The majority judgement found that the rights to bargain and to freedom of association can only be limited by laws of general application and not by collective agreements between employers and majority unions.
The Constitutional Court held that an agreement that seeks to limit the right to collective bargaining would be inconsistent with the Constitution and invalid where it was not a limitation that meets the requirements of section 36 of the Constitution.
From now, all unions have the right to represent and bargain on behalf of their members. All employers now have a duty to grant minority unions organisational rights which may include:
Sec 12 – Access to the workplace; and
Sec 13 – Debit order facilities; and
Sec 15 – Leave for office bearers for union activities.
These rights may be acquired by minority unions by meeting the threshold, bargaining and concluding a collective agreement with the employer or by referring it to the CCMA in terms of section 21 where the Commissioner has the discretion to grant the rights or not.
Minority unions may, according to this judgement, also bargain for section 14 – the right to appoint and leave for shop stewards and section 16 – the right of access to information which is, by virtue of the LRA, reserved for majority unions.
This has resulted in a rapid increase of minority unions in the workplace, which is causing industrial relations to be somewhat more challenging.
From the above, it is clear that employers will have to rethink their approach and strategy when dealing with minority trade unions in their respective workplaces, especially where another agreement, on the same or similar rights, is in place with a majority trade union in that workplace.
Article by: Jacques Du Toit
Dispute Resolution Official – Bethlehem