Collective bargaining takes place when one or more employers engage on matters of mutual interest with one or more employee collectives (usually a trade union). Parties will bargain over, inter alia, terms and conditions of employment at either plant level, company level or industry sector level.
The LRA recognises three institutions to represent parties in the collective bargaining process:
- Trade unions;
- Employers’ organisations; and
- Workplace forums
In a real sense, freedom of association is a foundational block of collective bargaining. Before trade unions can engage in collective bargaining, the trade union and the members that join that union must be protected by the law from joining that union.
The right to “freedom of association” can be defined as the right to join a trade union, to participate in the activities and programmes of a trade union and to strike. The right is contained in Chapter 2 of the Constitution (Section 23) and, as such, is protected.
Section 4 and 6 of the Labour Relations Act (the LRA) gives effect to the provisions of Section 23 of the Constitution provides as follows:
- Employees’ right to freedom of association
(1) Every employee has the right-
(a) to participate in forming a trade union or federation of trade unions; and
(b) to join a trade union, subject to its constitution.
(2) Every member of a trade union has the right, subject to the constitution of that trade union-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers, officials or trade union representatives;
(c) to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office; and
(d) to stand for election and be eligible for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in terms of this Act or any collective agreement.
(3) Every member of a trade union that is a member of a federation of trade unions has the right, subject to the constitution of that federation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or officials; and
(c) to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office.
- Employers’ right to freedom of association
(1) Every employer has the right –
(a) to participate in forming an employers’ organisation or a federation of employers’ organisations; and
(b) to join an employers’ organisation, subject to its constitution.
(2) Every member of an employers’ organisation has the right, subject to the constitution of that employers’ organisation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or officials; and
(c) if-
(i) a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office;
(ii) a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.
(3) Every member of an employers’ organisation that is a member of a federation of employers’ organisations has the right, subject to the constitution of that federation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or officials; and
(c) if–
(i) a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office; or
(ii) a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.
As is evident from the sections above, employers enjoy the same rights to freedom of association with regard to employers’ organisations as do employees and their trade unions.
Although protection of the right to freedom of association is enshrined in our law, there are limitations to the right, most importantly, with regards to joining trade unions. Trade unions may only recruit members in terms of their own constitutions. The constitutional Court, in the recent Lufil packaging case, stated that the LRA requires a union to have a constitution prior to registration. The constitution must determine its nature, scope and powers. The Court confirmed that such a constitution is binding on its members and governs the relationship between the parties, and gives effect to a legitimate government policy of orderly industry-specific collective bargaining.
One of the interesting situations that employers may raise, is whether senior managers may join a union. At first glance, it may appear to create a conflict of interest where a senior manager who, for example, is involved with wage negotiations and expected to act in good faith towards his employer, is also a member of the union. However, the LRA’s protection of the right is “unequivocal and unconditional”, and senior managers may join a union. They nevertheless must comply with their contractual obligations towards their employers, and failure to do so may lead to disciplinary action.
No action should be taken against an employee on account of them joining a union. Some of the following may be contemplated by employers:
- Dismissing an employee as a result of joining a union;
- Failing to award a discretionary bonus as a result of the employee joining a union;
- Failing to promote an employee as a result of him been elected as a shop-steward;
- Resorting to harassment in the form of disciplinary action against an employee as a result of them joining a union.
In conclusion, the right to freedom of association is protected by our law, and employers should refrain from becoming involved in the relationship between an employee and his union. At some point, the union may approach the employer to create an additional relationship between themselves.
Article by: Stephen Kirsten
Provincial Manager – Cape Town