Chapter 16: Collective Bargaining and Trade Union Rights

This chapter provides a comprehensive overview of collective bargaining, collective agreements, union security arrangements, bargaining structures, and the rights and duties of trade unions and their representatives within the South African labour law framework, primarily under the Labour Relations Act (LRA) and the Constitution. It also delves into the constitutional implications and case law surrounding these topics.

Introduction to Collective Bargaining and Collective Agreements

Collective bargaining is a fundamental process in labour relations, culminating in a formal document known as a collective agreement. These agreements are crucial for regulating terms and conditions of employment and resolving disputes.

Outcome of Collective Bargaining: The direct result of collective bargaining is a collective agreement.
Nature of Collective Agreements:
- They are written agreements.
- They are concluded between trade unions and employers or employers' organisations.
- They legally bind the parties involved and their members.
- They supersede any individual terms and conditions of employment agreed upon between an employer and an employee, meaning the collective agreement takes precedence.
Legal Recognition and Effect (LRA Section 23): The LRA explicitly acknowledges the significance of collective agreements and outlines their legal enforceability.
Dispute Resolution (LRA Section 24): In the event of a dispute concerning the interpretation or application of a collective agreement, Section 24 of the LRA provides specific mechanisms for resolution.

Definition and Requirements of Collective Agreements

For an agreement to be classified and legally effective as a collective agreement under the LRA, it must meet specific criteria:

Written Form: The agreement must be in writing. While it does not strictly require signatures from all parties, parties may agree within the document that signatures are necessary for its validity.
Subject Matter: It must concern terms and conditions of employment or any other matter of mutual interest between the parties.
Parties Involved:
- Concluded by one or more registered trade unions on one side.
- Concluded by one or more employers or registered employers' organisations on the other side.
Registration Requirement: Both the trade union(s) and employer organisation(s) involved must be registered. However, an employer can be a party to a collective agreement without being registered.
Consequences of Non-Compliance: If an agreement fails to meet all these requirements, the specific collective agreement provisions of the LRA will not apply, and it will not carry the same legal effect as a fully compliant collective agreement.
Formal Structure: To be classified as a collective agreement, the document must clearly identify the parties and explicitly set out the terms of the agreement.
Types of Collective Agreements:
- Substantive Collective Agreement: Regulates common issues in the employment environment, such as remuneration, working hours, leave benefits, and bonuses.
- Procedural Collective Agreement: Establishes procedures for grievance handling, disciplinary processes, and collective bargaining itself.

Legal Effect of Collective Agreements (LRA Section 23)

Section 23 of the LRA specifies who is bound by a collective agreement:

Parties to the Agreement: All direct parties to the agreement are bound.
Members of Parties: The agreement binds each party and the members of every other party, to the extent that the provisions are applicable to them.
Registered Union Members and Employer Organisation Members: It binds members of a registered trade union and employers who are members of a registered employer's organisation that are party to the collective agreement.
Non-Member Employees: Collective agreements can also bind employees who are not members of the registered trade union(s) party to the agreement, provided that:
- These employees are identified in the agreement.
- The agreement expressly states that it binds these employees.
- The trade union(s) represent the majority of employees in the workplace. This is further elaborated in Section 23(1)(d) of the LRA.

Relationship Between a Contract of Employment and a Collective Agreement

The LRA establishes a hierarchy and interaction between individual employment contracts and collective agreements:

More Advantageous Terms: If a contract of employment is concluded after a collective agreement and its terms are more advantageous to the employee, those more favourable contract terms may apply.
Limitations on Individual Contracts: However, a contract of employment cannot:
- Permit remuneration lower than that stipulated in the collective agreement.
- Allow for treatment or benefits less favourable than those prescribed in the collective agreement.
- Waive the application of any provision of the collective agreement.
Variation by Subsequent Agreement: A contract of employment may be varied by a subsequent collective agreement, "where applicable."

Union Security Arrangements

Union security arrangements are agreements, typically collective agreements, designed to protect trade unions from "free riders" and ensure their financial stability and representativeness.

Definition: An agreement between an employer and a registered trade union to prevent free riders (employees who benefit from union efforts without contributing) by either compelling employees to join a union or obliging the employer to collect fees on behalf of the union.
Examples: Agency shop agreements and closed shop agreements are common forms of union security arrangements.
Constitutional Basis: Section 23(6) of the Constitution allows national legislation to recognise union security arrangements in collective agreements. The LRA is this national legislation.
Specific LRA Provisions: Sections 25 and 26 of the LRA contain specific provisions for union security arrangements.

Agency Shop Agreements (LRA Section 25)

An agency shop agreement is a type of union security arrangement that requires non-union members to pay a fee to the representative trade union.

Parties: Concluded between a representative trade union and an employer or employers' organisation.
Mechanism: Requires the employer to deduct an agreed agency fee from the wages of identified employees.
Target Employees: These employees are not members of the trade union but are eligible for membership.
"Representative" Trade Union: Defined as a registered trade union (or two or more registered trade unions acting jointly) whose members constitute a majority of the employees employed by an employer in a workplace.
Obligation: Once concluded, free riders are obliged to pay an agency fee to the trade union(s) party to the agreement.

Conditions for Enforceability of Agency Shop Agreements

Several stringent conditions must be met and explicitly stated for an agency shop agreement to be enforceable:

No Compulsion to Join: Free riders are not compelled to become members of the trade union.
Fee Limit: The agency fee cannot exceed the subscription payable by members of the trade union. If there are multiple unions, the highest subscription applies.
Separate Account: The collected amount must be paid into a separate account administered by the trade union party to the agreement.
No Political Funding: The agency fee cannot be paid to a political party or contributed to a political candidate in an election.
Use of Funds: The agency fee must be used to advance or protect the socio-economic interests of employees (e.g., campaigning against a VAT increase, not funding political parties).

Termination of Agency Shop Agreements

Provisions exist for the termination of agency shop agreements, primarily linked to the union's representativeness:

Allegation of Non-Representativeness: If an employer or employers' organisation alleges that the trade union party to an agency shop is no longer representative, they must provide written notice to the trade union.
Period to Establish Representativeness: The trade union is granted 90 days from the date of notice to prove its representativeness.
Cancellation: If the trade union fails to prove the required representativeness, the employer or employers' organisation can cancel the agency shop agreement on 30 days' notice.
Unused Monies: Agency fee monies that have been paid but not used must be retained by the trade union and still be used to advance or protect the socio-economic interests of employees.

Closed Shop Agreements (LRA Section 26)

A closed shop agreement is a more restrictive union security arrangement, compelling employees to join a specific trade union.

Parties: Concluded between a representative trade union and an employer or employers' organisation.
Requirement: Requires all employees covered by the agreement to be members of the trade union.
"Representative" Trade Union: Similar to agency shops, it means a registered trade union (or two or more registered trade unions acting jointly) whose members constitute a majority of the employees employed by an employer in a workplace.
Invasiveness: Closed shop agreements are considered more invasive of an employee's freedom of association because employees are compelled to join the trade union. This infringes on the freedom of non-association, which is part of the broader freedom of association.

Conditions for Enforceability of Closed Shop Agreements

Due to the significant infringement on employees' freedom of association, the conditions for a closed shop agreement to be binding are stringent:

Ballot Requirement: A ballot must be held among the employees to be covered, and two-thirds of the employees who vote must vote in favour of the closed shop agreement.
"Post-Entry" Permissible: A closed shop agreement cannot require trade union membership before employment commences ("pre-entry" is prohibited). However, "post-entry" is permissible, meaning employees must join the union after commencing employment.
No Political Funding: Trade union subscription fees cannot be paid to a political party or contributed to a political candidate in an election.
Use of Subscriptions: Subscriptions must be used to advance or protect the socio-economic interests of employees.

Employees Who Refuse to Join the Trade Union Party (Closed Shop)

Specific protections and provisions apply to employees who refuse to join the union in a closed shop environment:

Existing Employees: Employees already employed when a closed shop agreement takes effect cannot be dismissed for refusing to join the trade union. These employees may only be subject to an agency fee deduction.
Conscientious Objectors: Employees who refuse to join the trade union on grounds of conscientious objection (freedom of thought, conscience, or religion) also cannot be dismissed.
- A conscientious objection must be deep-seated and religious; it does not include an objection based on being a member of a different union.
Dismissal for Fair Reason: Employees who refuse to join a trade union, thereby contravening a closed shop agreement, may be dismissed for a fair reason, provided they are not existing employees or conscientious objectors.

Refusal of Membership or Expulsion from a Trade Union (Closed Shop)

If a trade union party to a closed shop agreement refuses membership to an employee or expels an employee, specific procedures and fairness criteria must be met:

Constitutional Compliance: The refusal or expulsion must be in accordance with the trade union's constitution.
Fair Reason: The reason for the refusal or expulsion must be fair.
- Fair reason can include conduct by an employee that undermines the collective exercise of the trade union's rights (e.g., a union member actively undermining a protected strike).
- If the expulsion or refusal of membership complies with these requirements, dismissal will be fair.
- A common fair reason for dismissal in a closed shop context is that the employee is not a trade union member as required by the collective agreement.

Right to Elect Trade Union Representatives ("Shop Stewards")

Majority trade unions have the right to elect representatives, often called "shop stewards," who play a crucial role in the workplace.

Eligibility: A majority trade union has the right to elect one or more trade union representatives.
Number of Representatives: The number of representatives depends on the number of workers in a workplace.
Rights of Trade Union Representatives:
- To assist and represent an employee in grievance and disciplinary proceedings.
- To monitor the employer's compliance with the LRA, any law regulating conditions of employment, and any collective agreement binding the employer.
- To report any alleged contravention of these to the employer, the representative trade union, or any responsible authority or agency.

Dispute Resolution for Agency Shop and Closed Shop Agreements

Disputes concerning the application or interpretation of agency shop or closed shop agreements follow a specific resolution process:

Conciliation: The dispute may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation.
Arbitration: If conciliation fails, the dispute may be referred to arbitration at the CCMA.
Appeal: A party can appeal to the Labour Court against an award made by a CCMA arbitrator.

The process is illustrated as: CCMA CONCILIATION → CCMA ARBITRATION → APPEAL TO LABOUR COURT.

Bargaining Structures

Collective bargaining can occur at different levels, influencing the scope and impact of agreements.

Levels of Bargaining: Collective bargaining takes place at both centralized and decentralized levels.
Centralised Bargaining:
- Benefits employees across an entire sector and within a defined geographical area (e.g., a region or province).
- A "sector" refers to an industry or service (e.g., the automotive industry).
- South Africa has a strong system of centralised or sectoral collective bargaining between trade unions, employers' organisations, and employers.
Decentralised Bargaining:
- Takes place between an individual employer and one or more trade unions.
- Refers only to employees in that specific employer's workplace(s).

Bargaining Councils

Bargaining councils are key institutions for centralized collective bargaining in South Africa.

Imposition on Sectors: Centralised collective bargaining is often imposed on sectors, with national and provincial state departments being an exception.
LRA Framework: The LRA provides the framework for centralised collective bargaining through the bargaining council system.
Participation: Trade unions and employers or employers' organisations can choose to participate in this system.
Preference for Centralised Bargaining: National industrialised trade unions often prefer centralised bargaining because it determines conditions of employment for an entire sector, not just a single organisation or workplace.
Establishment: A bargaining council can be established for a particular area and sector.

Powers and Functions of Bargaining Councils

Bargaining councils have specific powers and functions to facilitate and enforce collective agreements and resolve disputes:

Main Functions:
- To conclude collective agreements.
- To enforce these collective agreements.
- To prevent and resolve labour disputes.
Establishment Purpose: Bargaining councils are established to negotiate and agree on conditions of employment and other matters of mutual interest.
Extension of Agreements: Once collective agreements are concluded, the Minister of Labour may extend them to apply to an entire sector and area.
Enforcement: Enforcement is carried out by designated bargaining agents who issue compliance orders.

Resolution of Collective Agreement Disputes

Every collective agreement must include a procedure for resolving disputes related to its terms.

Mandatory Procedure: All collective agreements must provide a dispute resolution procedure.
Conciliation and Arbitration: This procedure must require parties to first attempt conciliation, and if the dispute remains unresolved, it must be referred to arbitration.
CCMA Intervention: The CCMA may conciliate and arbitrate a dispute only if:
- The particular collective agreement does not provide for a dispute resolution procedure.
- The provided procedure is not operative.
- Any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement.
Types of Disputes:
- Interpretation Dispute: Occurs when parties disagree on the meaning of a specific clause or phrase in the agreement.
- Application Dispute: Arises when parties disagree on whether the agreement applies to a particular set of circumstances or facts.

Extension of Collective Agreements (LRA Sections 23 and 32)

The extension of collective agreements to non-parties is a significant aspect of South African labour law, with constitutional implications.

Primary Objects of the LRA (Section 1)

The LRA's primary objects guide its interpretation and application:

Promotion of Orderly Collective Bargaining: A key objective is to promote orderly collective bargaining, particularly at the sectoral level.
Interpretive Principle (Section 3): Any person interpreting the LRA must do so in a way that gives effect to its primary objects.

Case Law: Chirwa v Transnet Ltd and others [2008] (4) SA 367 (CC)

The Constitutional Court emphasized the importance of the LRA's primary objects in interpretation:

Primary Objects as Informative: The court held that the objects of the LRA in Section 1 are not merely textual aids for ambiguous language. Instead, they must inform the entire interpretive process, and the LRA's provisions must be read in light of these objects.

ILO Recommendation R091 (1951) on Extension of Collective Agreements

International labour standards also support the extension of collective agreements:

Extension Principle: Where appropriate and considering established collective bargaining practice, measures should be taken to extend the application of agreements to all employers and workers within the industrial and territorial scope of the agreement.
Conditions for Extension: National laws or regulations may subject the extension to conditions, including:
- The collective agreement already covers a sufficiently representative number of employers and workers.
- The request for extension is generally made by one or more worker or employer organisations party to the agreement.
- Prior to extension, affected employers and workers are given an opportunity to submit observations.

Constitutionality of Extension of Collective Agreements

The extension of collective agreements is viewed through the lens of constitutional principles and policy objectives:

Promotion of Sectoral Bargaining: Extension supports the promotion of collective bargaining at a broader sectoral level.
Central Role of Extension: It plays a central role in the overall scheme of collective agreements.
Prevention of Unfair Competition: Extension helps prevent unfair competition, particularly the undercutting of wages, by ensuring a baseline of terms and conditions across a sector.
Benefit for Workers: It benefits workers who lack individual collective bargaining strength to negotiate wages and terms of employment. This was highlighted in Free Market Foundation v The Minister of Labour (Case No:13762/13).
Exemption Option: Employers who genuinely cannot comply with an extended agreement have the option to apply for an exemption.

Case Law: Association of Mineworkers and Construction Union v The Chamber of Mines of South Africa [2017] ZACC 3 (CCT87/16)

This landmark case addressed the constitutionality of Section 23(1)(d) of the LRA, which allows for the extension of collective agreements to non-members.

Facts:
- The Chamber of Mines concluded a wage agreement with the National Union of Mineworkers, Solidarity, and United Association of South Africa trade unions.
- These three trade unions collectively represented the majority of employees employed by the employer.
Labour Court and Labour Appeal Court Holdings:
- Individual mines were not considered separate "workplaces."
- The collective agreement was validly extended.
Constitutional Court Holdings:
- Special Statutory Meaning of "Workplace": The term "workplace" in the LRA has a special statutory meaning, focusing on employees as a collectivity. It refers to where employees of an employer collectively work.
- Promotion of Orderly Collective Bargaining: In line with this objective, employees are viewed as a collective rather than isolated individuals.
- Independence Test: Different operations at multiple locations are considered different "places" only if they are independent by reason of size, function, or organisation. The concept of independence is a test of functional organisation, not merely geography.
- Constitutionality of Section 23(1)(d): Section 23(1)(d) of the LRA, read with Section 65(3) and the definition of "workplace," was found to be constitutional and compatible with the principle of majoritarianism espoused by the LRA and the ILO.
- Necessity of Extension: Extension of collective agreements is deemed necessary for the promotion of orderly collective bargaining.
- Conclusion: Individual mines did not constitute separate workplaces, the collective agreement was validly extended to AMCU members, and the extension of collective agreements to non-parties is not unconstitutional.
Majoritarian System and Minority Unions: The CC acknowledged that a majoritarian system can operate fairly under certain conditions, allowing minority unions to co-exist, organise members, represent members in individual grievances, and challenge majority unions. The LRA, while premised on majoritarianism, is not an instrument of oppression and does not entirely suppress minority unions.
Potential for Irrationality Review: While the statutory provision itself may be rational, a particular agreement's application could still be vulnerable to attack for irrational and undue effects on minority unions and non-members.

Extension of Retrenchment Agreements to Non-Parties (Section 23(1)(d))

The application of Section 23(1)(d) to retrenchment agreements has also been tested in court.

Case Law: National Union of Metalworkers of South Africa v South African Airways Soc Limited (LAC) Case No JA 15/16
- Facts: SAA incurred significant financial losses. Following a consultation process, a collective agreement regarding retrenchment was concluded between SAA and unions representing the majority of its employees. This agreement was extended to non-parties under Section 23(1)(d) of the LRA.
- NUMSA's Contention: NUMSA argued that Section 23(1)(d) only applies to collective agreements related to "interest disputes" (future terms) and not "retrenchment agreements" (which entail "rights disputes" concerning existing rights). They also contended that a retrenchment agreement was a settlement agreement, not a collective agreement extendable to non-parties.
- LAC's Rejection: The Labour Appeal Court (LAC) rejected NUMSA's contention, referring to the broad definition of "collective agreement" in Section 213 of the LRA.
- "Matter of Mutual Interest": The LAC held that "matter of mutual interest" is broad enough to cover both interest and rights disputes. Issues covered in Section 189(2) of the LRA (retrenchment consultations) are matters of mutual interest.
- Retrenchment Agreement as Collective Agreement: A retrenchment agreement between an employer and a trade union is a collective agreement if it meets the requirements of Section 213.
- Principle of Majoritarianism: Aligning with earlier decisions (e.g., Aunde South Africa v NUMSA), the court affirmed that Section 23(1)(d) applies the principle of majoritarianism, allowing for the extension of retrenchment agreements to non-parties.
Case Law: Associated Mineworkers Union v Bafokeng Rasimone Management Services (Pty) Ltd & Others [2017] 38 ILJ 931 (LC)
- Facts: Bafokeng Rasimone Management Services consulted with NUM and UASA unions regarding retrenchments under Section 189(1)(a) of the LRA. A retrenchment agreement was concluded and extended to non-parties.
- AMCU's Contention: AMCU argued that Section 189(1)(a)-(c) was unconstitutional because it did not oblige an employer to consult with all trade unions, only the one envisaged in the section. AMCU also claimed the extension violated rights to equality, dignity, and fair labour practices.
- Labour Court Holding: The Labour Court found that the consultation hierarchy in Section 189(1)(a-d) is compatible with the ILO Convention on Termination of Employment and the European Directive on Collective Redundancies.
- Constitutionality Affirmed: Section 189(1)(a-d) read with Section 23(1)(d) is compatible with the principle of majoritarianism and the ILO Convention. Therefore, Section 23(1)(d) applies to retrenchment agreements.
- Conclusion: In AMCU v Royal Bafokeng Platinum Mine LTD, Section 23(1)(d) was held to be constitutional and applicable in the context of retrenchment agreements.

Observations on Majoritarianism and Minority Unions

The Constitutional Court has consistently addressed the balance between majoritarianism and the rights of minority unions in cases like Bader Bop v NUMSA, AMCU v Chamber of Mines, and POCRU v SACOSWU.

POCRU v SACOSWU:
- The principle of majoritarianism in South African labour law is not incompatible with the freedom of association.
- Workers' right to form and join a union of their choice is for protecting their rights and advancing their interests.
- Any statutory provision preventing a trade union from bargaining on behalf of its members or representing them in disciplinary/grievance proceedings would limit Bill of Rights.
- Forcing workers belonging to one union to be represented by a rival union at disciplinary hearings undermines their right to freedom of association.

Cancellation of Collective Agreements of 'Indefinite Duration' (LRA Section 23(4))

Collective agreements concluded for an indefinite period can be terminated under specific conditions.

Termination by Notice: Unless the agreement provides otherwise, any party to a collective agreement of indefinite duration may terminate it by giving reasonable notice in writing to the other parties.
Case Law: TAWUSA & Alliance comprising of STEMCWU v Anglo Platinum Ltd [2009] 30 ILJ 2142 (LC)
- Principle: Section 23(4) allows termination of indefinite agreements with reasonable notice.
- Reasonable Notice: Three months' notice was considered reasonable in this case.
- Purpose of Notice: The requirement for reasonable notice provides parties a period to negotiate and attempt to sustain their collective agreements.
- No Compulsion to Continue: The court will not compel a party to continue a collective bargaining relationship if it no longer wishes to be a party.
Case Law: Edgars Consolidated Stores Ltd v Federal Council of Retail & Allied Workers' Union [2004] 25 ILJ 1051 (LAC)
- Exception to Termination: An agreement cannot be terminated under Section 23(4) if the agreement itself precludes such termination (e.g., by requiring a third party's leave, like the court's or CCMA's, to terminate).
- Determination of Reasonable Notice: What constitutes "reasonable notice" depends on the nature of the collective agreement and the specific facts and circumstances of each case. Six months' notice was considered reasonable in a different context, emphasizing the need for negotiation to sustain agreements.

Trade Unions and Organizational Rights

Trade unions are vital for employee protection and collective power, with their rights rooted in the Constitution and the LRA.

Constitutional & Legislative Framework

Right to Freedom of Association (Constitution Section 23):
- Section 23 of the Constitution guarantees every employee the right to join a trade union.
- Section 23(4)(b) specifically grants every trade union, employer's organisation, and employer the right to engage in collective bargaining.
Role of Trade Unions:
- Play a vital role in protecting employees through collective power.
- Commonly responsible for:
  - Representing employees at disciplinary hearings and in litigation.
  - Engaging in collective bargaining on behalf of employees.
  - Representing employees' collective interests at the workplace.
International Recognition:
- Universal Declaration on Human Rights (1948, Article 23): Everyone has the right to form and join a trade union for the promotion of their interests.
- Preamble of the ILO Constitution: Recognition of the freedom of association is a tenet of social justice.

The Right to Join and Participate in Trade Unions

The LRA gives effect to the constitutional right to freedom of association, protecting employees' ability to engage with trade unions.

Constitutional Guarantee (Section 18): The Constitution guarantees the right to freedom of association.
LRA Provisions (Section 4): The LRA provides that everyone has the right to participate in forming a trade union and to join a trade union or federation of trade unions, subject to its constitution.
Protection Against Discrimination: The LRA protects employees from discrimination or prejudice for exercising their rights, which include:
- Participating in the trade union's lawful activities.
- Participating in the election of office-bearers, officials, or trade union representatives.
- Being appointed as an office-bearer or official.
- Being appointed as a trade union representative.

Forms of Trade Unionism and Organizational Rights

Not all trade unions possess the same rights; these vary based on their registration status and representativeness.

Varying Rights: The LRA grants different rights to trade unions based on whether they are registered, sufficiently representative, or majority trade unions.
Registered Trade Union:
- Only registered trade unions are entitled to organizational rights under the LRA.
- Legal Obligations: A registered trade union has legal obligations, including:
  - Keeping accounting records and audits.
  - Keeping records of its members and minutes of meetings.
  - Providing information annually to the Registrar of Labour Relations.
Majority Union:
- Enjoys additional organizational rights beyond those extended to merely representative trade unions.
- Members of a majority trade union may elect trade union representatives (shop stewards) at the workplace, who are entitled to leave for trade union activities.
- Trade union representatives of a majority union are also entitled to disclosure of information from the employer to perform their duties efficiently.
- Definition: While not explicitly defined in the LRA, a "majority trade union" is generally understood to mean a union whose members constitute 50% + 1 of the employees employed in a workplace.
- Joint Action: The LRA allows two or more registered trade unions to act together to acquire the rights afforded to majority trade unions.
Sufficiently Representative Union:
- Organizational rights aim to empower trade unions to negotiate effectively.
- To qualify for some rights, unions must be registered and "sufficiently representative."
- Definition: "Sufficiently representative" is not defined in the LRA, and its determination depends on relevant facts. Factors include the nature of the workplace, sector, specific organizational rights sought, and workforce composition.
- Case Law: SACTWU v Sheraton Textiles (Pty) Ltd [1997] 5 BLLR 662 (CCMA): A trade union is sufficiently representative if it "can influence negotiations, the financial interests of those in the industry, peace or stability."

Right to Organize and the Majoritarian System

The majoritarian system is a cornerstone of South African labour law, promoting orderly collective bargaining.

Kem-Linn Fashions v Brunton [2001] 22 ILJ 109 (LAC):
- The will of the majority should prevail over that of the minority for orderly collective bargaining and workplace democratisation.
- A proliferation of trade unions in one workplace or sector should be discouraged.
"Workplace" Definition (AMCU v Chamber of Mines of South Africa and others [2017] 38 ILJ 831 (CC)):
- The LRA's definition of "workplace" focuses on employees as a collectivity.
- For LRA purposes, "workplace" has a special meaning assigned by the legislature, not its ordinary meaning.

Acquiring Organizational Rights: Position Before 2014 LRA Amendments

Before the 2014 amendments, organizational rights were primarily based on registration and representativeness:

Requirements: Registration and Representativeness.
Dimensions of Representativeness:
- Majority Union (50% + 1): Entitled to all five organizational rights (sections 12, 13, 14, 15, and 16).
- Sufficiently Representative Union: Entitled to rights under sections 12, 13, and 15.
- Membership of a Bargaining Council: Entitled to rights under sections 12 and 13.

2014 LRA Amendments: Balancing Majoritarianism and Minority Union Rights

The 2014 amendments aimed to strike a balance, allowing some rights to minority unions under specific conditions.

Section 21(8A)(a): A commissioner, in arbitration, may grant a union that is not a majority union the right to elect shop stewards (Section 14) if that union is already entitled to the rights under Sections 12, 13, and 15.
Section 21(8)(b): A commissioner, in arbitration, may grant a union that is not a majority trade union the right to disclosure of information (Section 16) if that union is entitled to the rights under Sections 12, 13, 14, and 15.
Key Issue: These rights may be granted to minority unions as long as there is no majority trade union already exercising such rights.
Section 21(8C)(a)&(b) and Section 18 (Thresholds):
- A commissioner has the discretion to grant a trade union representing a "significant interest" or a "substantial number" of employees the rights under Sections 12, 13, and 15.
- All parties to the agreement must be given an opportunity to make representations.
Section 18 of the LRA: Right to Establish Thresholds of Representativeness:
- An employer and a registered trade union (or bargaining council parties) whose members constitute a majority of employees in a workplace may conclude a collective agreement establishing a threshold of representativeness for organizational rights (Sections 12, 13, and 15).
- Such a collective agreement is only binding if the thresholds are applied equally to any registered trade union seeking those organizational rights.
- Principle of Majoritarianism Firmly Entrenched: This section reinforces workplace majoritarianism, where a single union or group of unions enjoys exclusive rights or representation.

NUMSA v Bader Bop Case Conundrum (Part A of the LRA v Section 65(2)(a) of the LRA)

This case highlighted a tension between statutory rights and the right to strike for organizational rights.

Facts: NUMSA, a minority union (26% representativeness), wanted to strike to obtain the right to elect shop stewards, a right typically reserved for majority unions.
Constitutional Court Holding: The Constitutional Court held that a minority union can strike to obtain such a right.
Lesson: Industrial action could be used by a minority union to obtain rights that it would otherwise not be entitled to under Part A of the LRA.

Lufil Packaging (Isithebe) (A division of Bidvest Paper Plus (Pty) Ltd v CCMA (DA8/2018) (LAC)

This case addressed whether a trade union can seek organizational rights for employees outside its constitutional scope.

Principle: Trade unions derive their powers and capacities from their constitutions. The LRA requires unions to define eligible members in their constitutions, implicitly precluding them from admitting or representing employees not eligible under their registered constitution.

Right to Organize and the Majoritarian System (Revisited)

The suitability of the majoritarian system in contexts like Marikana is a subject of ongoing debate.

LRA Amendments and Commissioners' Powers: LRA amendments empower arbitrating commissioners to extend certain organizational rights (access to workplace, deduction of levies, leave for trade union activities) to registered unions that do not meet the representativeness threshold.
Minority Union Rights: Rights to disclosure of information and to appoint shop stewards may be granted to a minority union, provided no other union in the workplace already holds these rights.

Freedom to Self-Regulation for Trade Unions

Trade unions have significant autonomy in managing their internal affairs.

Rights of Trade Unions: Every trade union has the right to:
- Determine its own constitution and rules.
- Hold elections for its office-bearers, officials, and representatives.
- Plan and organise its administration and lawful activities.
- Participate in forming a federation of trade unions.
- Join a federation of trade unions and participate in its lawful activities.
- Affiliate and participate in the affairs of any international workers' organisation or the ILO, and contribute to or receive financial assistance from such organisations.

Right to Be Recognised (Process)

For a trade union to be formally recognised by an employer, a specific process must be followed:

Recruitment: The union must recruit enough members to be considered "representative."
Notification: The union must notify the employer of its representativeness and the specific rights it seeks to exercise.
Meeting and Agreement: The employer must meet with the union to conclude a collective agreement on how these rights will be exercised.
CCMA Conciliation: If an agreement cannot be reached, the matter can be referred to the CCMA for conciliation.
Arbitration or Strike: If conciliation fails, the dispute may be arbitrated, or the union may declare a dispute and go on strike.

Right of Access to the Employer's Premises

Representative trade unions and their officials have specific rights to access employer premises to carry out their functions.

Access for Officials: Any office-bearer or official of a representative trade union is entitled to enter the employer's premises to:
- Recruit members or communicate with members.
- Serve members' interests.
- Hold meetings with employees outside their working hours.
Voting Rights: Members of a representative trade union are entitled to vote at the employer's premises in any election or ballot.
Purpose of Access: The ability to recruit and organise is essential for trade union success. The LRA protects officials' access and individuals' right to associate from discrimination.
Majoritarianism and Access: Majority trade unions are entitled to shop stewards and disclosure of information, consistent with the majoritarian system that aims to prevent union proliferation and promote orderly collective bargaining.
Section 18 and Thresholds: Section 18 of the LRA enables majority unions to set representativeness thresholds for gaining access (Section 12), stop order facilities (Section 13), and trade union leave rights for minority unions (Section 15).

Rights of Trade Unions (Specific)

Beyond general organizational rights, trade unions have specific rights related to dues, consultation, and leave.

Right to Membership Dues: A trade union may authorise an employer to deduct membership dues from an employee's wages.
Right to Be Consulted on Retrenchments: A trade union has the right to engage in a meaningful joint consensus-seeking process when an employer contemplates retrenching its members.
Right to Be Consulted Prior to Disciplining a Shop Steward: An employer must inform the trade union before instituting disciplinary action against a shop steward.
Leave for Trade Union Activities: An employee who is an office-bearer of a representative trade union is entitled to reasonable leave during working hours for performing functions of that office. The union and employer may agree on the number of days and conditions for such leave.

Rights to Represent

Trade union representatives and registered trade unions have broad rights to represent employees in various proceedings.

Representation in Hearings: A trade union representative has the right to assist and represent employees in grievance and disciplinary hearings.
Union's Capacity in Disputes: A registered trade union may act in disputes:
- In its own interests.
- On behalf of any of its members.
- In the interest of any of its members.
Party to Proceedings: A registered trade union is entitled to be a party to proceedings under the LRA.
Challenging Employer Authority: Trade union representatives' tasks involve challenging employer authority, requiring appropriate behaviour.
Dismissal for Defiance: A shop steward who is defiant and incites fellow employees to disobey the employer may be fairly dismissed for such behaviour (e.g., Mondi Co Ltd v Paper Printing Wood and Allied Workers Union).

Right Not to Be Victimized

The LRA protects employees from discrimination for exercising their rights.

Prohibition of Discrimination: No person may discriminate against an employee for exercising any right conferred by the LRA.
Examples of Prohibited Discrimination:
- Requiring an employee or job seeker not to be a member of a trade union.
- Preventing an employee or job seeker from exercising any LRA right or participating in proceedings.
- Prejudicing an employee or job seeker due to past, present, or anticipated trade union membership.

Right to Information (Section 16)

Trade unions with a Section 16 right are entitled to disclosure of relevant information from the employer.

Purpose of Disclosure:
- To enable the trade union representative to perform functions effectively.
- To allow for effective consultation or collective bargaining.
Information Not Required for Disclosure: An employer is not required to disclose:
- Legally privileged information.
- Information prohibited from disclosure by law or court order.
- Confidential information that, if disclosed, may cause harm.
- Private and personal information relating to an employee, unless consent is obtained.

Rights to Enter into Agreements on Behalf of Members

A central purpose of trade unions is to bargain and conclude agreements on behalf of their members.

Core Function: Trade unions bargain on behalf of their members, achieving agreements that individual employees might not secure alone.
Practicality: Collective bargaining is conducted by smaller groups for practical reasons, rather than the entire workforce.
Member Satisfaction: Individual members may not always be satisfied with a collective agreement, but it is legally recognised.

Duties of Trade Unions, Trade Union Officials, and Trade Union Representatives

Trade unions and their representatives also have responsibilities under the LRA.

Duty to Engage in Consultation on Retrenchments: Trade unions have a duty to engage in a meaningful joint consensus-seeking process when an employer contemplates retrenching their members.
Consequences of Refusal to Consult: If a trade union deliberately delays or refuses to consult, retrenchment cannot be deemed procedurally unfair if the employer proceeds.
Mutual Duty to Consult: The duty to consult is mutual. If a trade union fails to raise alternatives to retrenchment, it cannot later complain that the employer did not consider a particular alternative it did not suggest.

Liability of Trade Unions

While trade unions are generally protected to perform their functions, they can incur civil liability under certain circumstances.

Protection from Civil Liability: Trade unions are generally protected from civil liability to enable them to perform their functions effectively.
Liability in Delict: A trade union can be held liable in delict for a breach of duty of care owed to an employer if the breach was wrongful, the union was at fault, and it caused loss to the claimant.
Vicarious Liability: Liability can be incurred through the conduct of the union itself or through its members or officials (vicarious liability).
Breach of Contract: A trade union can be held liable for breach of contract if the breach is unlawful and unjustifiable, potentially incurring contractual damages.

Compensation for Losses Arising Out of Unprotected Strike Action

Unprotected strikes carry significant legal consequences, including civil liability for losses incurred.

Immunity for Protected Strikes: Employees participating in a protected strike are immune from civil liability (their conduct is neither a delict nor a breach of contract) and are protected from unfair dismissal.
Union Indemnification (Protected Strikes): Unions are indemnified from civil liability for their conduct in furtherance of a protected strike, allowing them to function without fear of liability.
No Protection for Unlawful Actions: This protection does not extend to unlawful actions during a protected strike, such as criminal offences (theft, malicious damage to property).
Liability for Unprotected Strikes:
- LC Exclusive Jurisdiction: The Labour Court (LC) has exclusive jurisdiction to interdict participation in an unprotected strike or lock-out and to order just and equitable compensation for any loss attributable to the strike.
- Union and Member Liability: A trade union or its members can be held liable for losses caused by an unprotected strike.
- Striking Employee Liability: A striking employee can be held liable if their participation is the direct cause of the employer's loss.
- Union's Role in Unprotected Strikes: A trade union can be held liable if it calls for an unprotected strike or fails to take steps to bring the strike to an end, resulting in employer losses.
Extent of Loss and Compensation:
- Proof of Loss: The employer must prove the extent of loss caused by the strike.
- Union Actions to Avoid Liability: To avoid liability, unions must:
  - Take clear action to reject unauthorised actions of shop stewards or members.
  - Distance themselves from the illegal strike.
  - Take steps to bring the strike to an end.
- Just and Equitable Compensation: The LC is required to award just and equitable compensation, which must be fair in the circumstances.
- Actual Loss: Compensation is intended to cover actual loss suffered and must be attributable to the strike.
- Covered Losses: Compensation may cover loss of profit and productivity, loss of income, and overtime payments to non-striking employees.
- Factors for Determining Fair Compensation (LRA): The LC considers:
  - Attempts to comply with LRA provisions.
  - Whether the strike was premeditated.
  - Whether the strike or conduct was in response to unjustified conduct by another party.
  - Compliance with an interdict.
  - Interests of orderly collective bargaining.
  - Duration of the strike or conduct.
  - Financial position of the employer, trade union, or employees.
- Case Law: Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union is cited as a reference for these considerations.
Vicarious Liability of Trade Unions (Unprotected Strikes):
- A trade union can be held vicariously liable for the acts of its members.
- The employer must prove that the act was wrongful and that the trade union is legally liable.
- The employer must also prove that the union authorised, instigated, or ratified the commission of the act before the union can be held liable.