Freedom of Association

Chapter 4
Labour Law 3.1
Introduction

 LRA protects freedom of association rights

 Provide benefits to registered trade unions
Statutory Definitions

• An association of employees whose

principal purpose is to regulate relations
Trade union
between employees and employers,
including any employers’ organisations

• Any number of employers associated

together for the purpose, whether by
Employers
itself or with other purposes, of
organisation
regulating relations between empllyers
and employees or trade unions
Freedom of Association
Overview

 Content of freedom of association in employment

context - section 23 of Constitution
 Note the use of ‘worker’ and ‘everyone’ in section 23
 Chapter II of the LRA gives effect to section 23 of the
Constitution
 Does LRA place limitation on section 23 Constitutional
rights?
Freedom of association
Rights and protection of employees

Section Section
4 Participate in 5 Codifies protection
against victimisation
forming and joining
for trade union
a trade union or
activities and
trade union
exercising rights
federation
established by LRA

Participate in its
lawful activities
subject to union’s
constitution
Freedom of association
Rights and protection of employers

 Section 6 and 7 of LRA

 Practically identical to those of employees
 Protection when engaging in a procedural lock-out not similar to protection
when engaging in procedural strike
Freedom of association
Rights and freedoms of trade unions and employers’ organisations

Determine their own constitution and rules and hold

elections for office-bearers, officials and representatives

To plan and organise their

administration and lawful activities

To participate in forming
and joining a federation

Become affiliated to and participate in the affairs of any

international workers’ organisation or employers’ organisation, or ILO
Freedom of association
Disputes

Enforcing rights
Order - Order –
Automatically Invalid
Interdict
unfair contractual
dismissal provision
Freedom of association
Closed shop agreement (Statutory requirements)

 ‘Agreement between employer and trade union requiring all employees

covered by the agreement to be members of the union’
 Statutory requirements ensures constitutional compliance through extensive
checks and balances (p226 – 227)
 Termination of agreement – only after 3 years since commencement and
must hold ballot
 Freedom of association
Closed shop agreement (Constitutionality)

 Violation of fundamental right to freedom of association?

 Not challenged in court

Test for constitutionality

First question
Two fold enquiry
Second question
Whether the closed
shop provisions limit
the right to freedom Whether it can be
of association:- justified by section 36

If prima facie
limitation is justified
by promoting other
basic rights
Freedom of association
Closed shop agreement (Constitutionality)

 ILO
 Foreign law
 Closed shop agreements counter-balance the power of employers
 Proportionality Test
Agency shop agreements
Statutory requirements

 It is a collective agreement requiring the employer to deduct an agency

fee from ‘identified’ employees who are not members of the trade union but
eligible
 Requirements:
 Majority union;
 Not compelled to become members
 Agency is equal to, or less than the applicable subscription and
 Paid into separate account
 Employer can give written notice to union that they no longer represent the
majority of employees
Agency Shop agreements
Constitutionality
 Canada and United States
 Will survive a constitutional challenge
Control of Funds

 Fees deducted from employees in terms of these agreements may not:

 Be paid to a political party as an affiliation fee;
 Contributed to a political party or a person standing for election to a political
office; or
 For any expenditure that does not advance or protect the socio-economic
interests of employees
 Will be left to arbitrators to determine the meaning of the phrase to
‘advance or protect the socio-economic interests of employees’
 Agency shop fees must be paid into separate account
 No such provision for fees paid in terms of Closed Shop agreement
Disputes

Interpretation Conciliation Arbitration

Dispute

CCMA
CCMA
and
application
of agreement
Regulation of trade unions and employers’
organisations - Registration

 Persuasive reasons for registration - legal and organisational benefits

 Certain freedom of association rights accorded to registered and
unregistered trade unions
 Compare registered unions rights with those of unregistered unions
 On balance, there are more advantages attached to registration than
disadvantages

To register or not to register?

Regulation of trade unions and employers’
organisations – registration process
 Very few limitations on the right to register

Procedural
Purpose Independence Constitution
requirements
The registration process – Trade Unions
and employer’s organisations
 Procedural requirements
 First apply for registration:
 Name or abbreviation not close to another and not cause confusion
 Constitution complies with LRA
 Genuine
 Address in South Africa
 Independent

 Registrar no discretion to register

 Application done on prescribed form etc.
 May require additional information
The registration proses – Purpose of the
organisation
 Does organisation meet the definition of a trade union or employers’
organisation and is it genuine
 Purpose:
 First consider the constitution and
 then the guidelines published by the Minister to determine if it is genuine
Registration process - independent

 Only applies to trade unions

 Imbalance of power employers and employees
 Certain forms of support by employers to unions fall outside the scope of
impermissible interference
 Registered trade union may apply to Labour Court for order that another
union is no longer independent
Registration process – Other
substantive matters
 Constitution include:
 the nature, scope and powers of the organisation and
 the appointment of certain functionaries
 LRA list 24 matters that must be dealt with in their constitution
 May not discriminate
Duties

 Duties of registered trade unions and employers organisations

 These duties promote democratic principles and ensure proper financial
control
Winding-up and deregistration

 Wound up if:
 It has resolved to wind up its affairs and applied for and order; or
 The registrar or member has applied for such an order and court is satisfied the
organisation is unable to continue to function
Relationship between trade unions and
their constituencies
 The statutory rights arising from freedom of association are vested in
employees and not the trade union
 Trade unions and collective bargaining is the way in which employees can
articulate their interests
 Questions raised by this:
 To what extend are they bound by the decisions of union members; and
 What is the status of acts that go contrary to such decisions
Relationship between trade unions and their
constituencies- Majoritarianism and
collective representation
 Registered trade union is a legal person with powers and duties
 Act through representatives – no different from other corporate entities
 Trade union may represent members in personal capacity or represent
interest of employees
 LRA states that a registered trade union may act in any dispute to which
any of its members is a party:
 In its own interest’
 On behalf of any of its members, or
 In the interest of any of its members
 This applies when trade union themselves are a party to a dispute not
individual member
Relationship between trade unions and their
constituencies- Majoritarianism and
collective representation
 Individual interests v collective interests
 May not violate members constitutional rights, or bind them to unlawful,
dishonest or improper conduct
 Bind members with collective agreements
 A union member or minority members, cannot withdraw mandate simply
because they are unhappy with the result
Grounds for dispute between trade unions
and members – alleged discrimination

 Discriminatory provisions in collective agreements are invalid

 Duty of fair presentation
 Employee alleges breach of freedom of association rights by union refer
dispute to CCMA then Labour Court
Grounds for dispute between trade unions
and members – alleged lack of authority

Where they
duly
appointed?

Authority of
union
representative

Whether their
conduct fell
within terms
of
constitution?
Grounds for dispute between trade unions
and members – alleged non-compliance
with union constitution
 Exhaust internal remedies then refer to Labour Court
 Theron v FAWU – correct decision?
 Any decision must be open to challenge if it breaches a members right to
freedom of association or unfair discrimination
Grounds for dispute between trade unions
and members – claims in contract and
delict between trade unions and members
 May claim arrear fees through Labour Court
 FAWU v Ngcobo NO – failure to refer unfair dismissal dispute
 SAMWU v Jada – trade union members taking part in unprotected strike
Consequences of unauthorised acts by
union representative

 Labour Court jurisdiction:

 Alleged non-compliance with union’s constitution
 Direct the performance of any act which will remedy a wrong and give effect to
the primary objects of the LRA
 Review the performance or purported performance of any functions provided
for in this Act on grounds that are permissible in law
 Prefer that dispute resolved in terms of union’s constitution
 Two routes to Labour Court
 Union representatives allegedly acted unconstitutionally, or
 Union representative formally complied with the union constitution but acted
mala fide
Organisational rights of registered trade
union
Overview

Organisational rights

Union office-
Acces to Elect trade
Conduct Stop-order bearers time off Disclosure of
employers Hold meetings union
ballots facilities for union information
premises representatives
activities
The LRA – statutory rights (organisational
rights)

When will trade union qualify for statutory rights?

Registered Sufficiently representative

How do unions acquire organisational rights?

Membership of a bargaining Follow procedure laid down
Collective agreement
council/statutory council in LRA
LRA – organisational rights established by
collective agreement

 Conclude collective agreements on any matters of mutual interest –

organisational rights
 May therefore strike in support of demand for organisational rights - NUMSA
v Bader Bop
 Collective agreement may not limit organisational rights to one trade union
LRA – organisational rights of unions that are
parties to councils

 Automatically enjoy:
 Right to access
 Stop – order facilities
LRA – procedure for acquiring statutory
rights

Registered trade
union

Only
acquire Sufficiently represented
employer statutory
rights

Workplace
LRA – procedure for acquiring statutory
rights (continue)

Statutory (Organisational) rights

Access to Unpaid leave Election of Paid time off for

Stop-order Disclosure of
employers for office- trade union trade union
facilities information
premises bearers representatives representatives
LRA – Procedure for acquiring statutory
rights (continue)- workplace
 Two or more unions may act together
 Specific workplace:
 May be determined by agreement, or determined by CCMA
 Section 213 definition of ‘workplace’
 How do you determine the ‘workplace’ where business operates at different
sites?
 Independence
 Size, function, or organisation of business
 Purpose of the union
 Certain factors when determining ‘representativeness’ may be relevant
 Trade union that has acquired organisational rights in TES may exercise those rights at
clients workplace – LRAA 2014
LRA – Procedure for acquiring statutory
rights – Different thresholds

 Criteria for establishing representivity

 Indicators:
 Certain rights requires certain representivity
 Must specify which rights they wish to exercise
 Consider the nature of the organisational right
 If trade union cease to be representative the arbitrator may withdraw
organisational rights – do not fall away automatically
 Threshold for some rights might be lower than other rights
LRA – Procedure for acquiring statutory
rights – Sufficiently representative

Leave Stop –
for trade order
union facilities
acticities

Access to
the
workplace
LRA – Procedure for acquiring statutory
rights – Sufficiently representative (continue)

 Arbitrator must follow two guidelines:

 Minimising proliferation and system of representative union
 Consider certain factors
 Nature of the workplace
 Nature of organizational rights
 Nature of the sector
 Organisational history
 Composition of the workplace

 Must balance the different factors

 New section 21(8A)
Content of Statutory Right

Access to Trade union Leave for trade Disclosure of

Stop-order
workplace representatives union activities information
•Enter premises •Threshold •Majority •Reasonable •Limitations
•Hold meetings lower than •Rights of time-of •Disputes
•vote other representatives •Unpaid •Balance of
organisational harm
rights
•Breach of
confidentiality
Procedure for exercising statutory rights

Acquiring Enforcement
Notify the Duty to Referral to Arbitration or
representative through
employer bargain CCMA strike
status Labour Court
Statutory rights

 Withdrawal
 Need for guidelines
 Disputes regarding exercise of organisational rights