Summary LLW2602 Summarised Study Notes

LLW2602

NOTES

, COLLECTIVE LABOUR LAW NOTES

Freedom of association, trade unions’and employers’ rights (Chapter 10)

FREEDOM OF ASSOCIATION

Freedom of association means that people have the right to associate with others in order to
defend and protect their common interests. Workers’ right to freedom of association is
protected by the Constitution, the LRA and ILO Conventions.


In the workplace, freedom of association entails the right of workers to:
• form and join trade unions of their choice,
• To participate in these unions’ lawful activities,
• To organise and bargain collectively with the employer, and
• To strike.


Protection in terms of the Constitution


The Constitution distinguishes between the following two types of freedom of association:


1) General freedom of association - Section 18 grants ‘everyone’ the right to freedom
of association, in other words, to form and join any association.
 Freedom of association for trade Union purposes -Section 23 protects freedom of
association for workers, trade unions, employers and employers ’organisations
o Every worker has the right to form and join a trade union, to participate in
the activities and programmes of a trade union, and to strike
o Every employer has the right to form and join an employers’ organisation,
and to participate in the activities and programmes of an employers’
organisation.
o Every trade union and every employers’ organisation has the right to
determine its own administration, programmes and activities, to organise,
and to form and join a federation
o Every trade union, employers’ organisation and employer has the right to
engage in collective bargaining (but remember that national legislation may
be enacted to regulate collective bargaining)




Protection in terms of ILO Conventions

The South African government signed and ratified the two most important ILO Conventions
on freedom of association and collective bargaining, namely Conventions 87 and 98 in 1996.

,• Convention 87 guarantees to all employers and workers, including supervisors, the right to
freely establish and join organisations of their own choice, subject only to the rules of the
organisation.
• Convention 98 deals with the right to organise and bargain collectively. This Convention
protects workers against acts of discrimination and victimisation by their employers on
account of their trade union membership or activities. The Convention also protects unions
and employers’ organisations against any acts of interference by each other or each other’s
agents.




Protection in terms of the Labour Relations Act

Purpose of enactment of the LRA

The LRA is the cornerstone of South African labour law and was enacted to, amongst other
things:

• Give effect to the rights entrenched in section 23 of the Constitution,

• give effect to the obligations incurred by South Africa as a consequence of its membership
of the ILO,

• promote social justice, labour peace and workplace democracy, and

• promote orderly collective bargaining

Specific protection of the right to freedom of association

The LRA protects freedom of association for employees, employers, trade unions and
employers’ organisations, by determining the following:

 Every employee has the right to form and join a union — trade union membership is
only subject to the constitution of the union.
 Every union member has the rights to participate in the lawful activities of a union
and stand for election, and if eligible, to be appointed as a union representative or
officer.
 An employer may not discriminate against an employee for exercising the right to
freedom of association.
 No-one may give or promise an advantage to an employee or a work-seeker in
exchange for that person not exercising her/his right to freedom of association.
 Every trade union has the right to:

• determine its constitution and rules,

, • hold elections for office-bearers,

• plan and organise its administration and lawful activities,

• join federations, and also

• affiliate with and participate in the affairs of international organisations.

Any dismissal for exercising the right to freedom of association is automatically unfair

Limited protection of the right to freedom of association

The LRA applies to employees as defined in section 213 and does not apply to members of
the:

• National Defence Force,

• National Intelligence Agency,

• South African Secret Services,

• South African National Academy of Intelligence, and

• Comsec.




TRADE UNION SECURITY ARRANGEMENTS

Permissibility - The Constitution allows for ‘union security arrangements contained in
collective agreements’. This refers to the so-called ‘closed-shop’ and ‘agency-shop’
agreements which infringe an employee’s right to freedom of association. The only limits set
in the Constitution are that such agreements must:

• be contained in a collective agreement, and

• comply with the general limitation clause of the Constitution

Agency-shop agreement
Agency-shop agreements are regulated by s 25 as follows - Concluded by a majority union and
an employer or an employers’ organisation
a) Concluded by way of a collective agreement
b) Concluded by a majority union and an employer or an employers’ organisation

c) Employer must deduct agreed agency fee from the employees identified in the agreement-

I. Employer must deduct agreed agency fee from the employees identified in the agreement may
only deduct from non-members who are eligible for membership
II. conscientious objectors to the policies of the union (on religious or moral grounds) must pay the fee
which is then paid into a fund administered by the DoL