PEMA5122 Collective Labour Law PDF

PEMA5122 Learning Unit 7 – Collective Labour Law (READ PAGE 26 OF THE MO) Theme 1 – Freedom of Association PM: Chapters 11, 12, & 13  LO1: Discuss the historical background of the right to freedom of association and trade unionism in South Africa....

PEMA5122 Learning Unit 7 – Collective Labour Law (READ PAGE 26 OF THE MO) Theme 1 – Freedom of Association PM: Chapters 11, 12, & 13  LO1: Discuss the historical background of the right to freedom of association and trade unionism in South Africa.  During colonisation people were enslaved and had no right to freedom of contract, payment, fairness or trade unions  During the late 90s the concept of unionism was brought to South Africa through colonisation but excluded black workers – racial requirement to join  See the history that enabled the exclusion of black persons on page 184 – 185  Current LRA known as most progressive in Africa and is in line with international standards  Includes Constitutional rights in relation to unions, added organizational rights for unions in workplaces and strikes  LO2: Explain the right to freedom of association with specific reference to its: Protection under the Constitution  Freedom of association is protected by :  The Constitution, LRA, ILO Conventions – see purpose on page 185  Protection under Constitution  Section 18 right to freedom of association  Provides all persons in South Africa with freedom of association in compliance with the law  Section 23 protects employees/employers with freedom of association (see section 4 and 5 of LRA)  Worker rights to form/join TU and participation in TU activities and strikes  Employer rights to join/form organisation and participate in activities of EO  TU and EO has right to manage itself and join/form federation  All parties partake in collective bargaining – in line with legislation  LO2: Explain the right to freedom of association with specific reference to its: Protection in terms of the Labour Relations Act  The right to freedom of association with specific reference to its protection in terms of LRA  Sections 4 & 5  Employee: right to join/form union  Union member (+persons seeking employment): right to lawful activities  Employer: not prevent/discriminate against freedom of association  All parties: cannot require person not to exercise freedom of association  Trade unions: determine constitution/rules, hold elections for office bearers, administration, join federation, associate w international organisation  Dismissal for exercising this right is automatically unfair LO3: Explain the employees with limited freedom of association  Two groups are limited  Members of SANDF and SSA:  included in Constitution protection but limited (no strikes – rather compulsory arbitration)  Defence Act bars from joining union (SANDU case – unconstitutional to exclude this right)  Senior Managerial employees:  Protected by LRA and Constitution  Potential for conflict of interest between manager/union member role  IMATU case senior manager may join union if his actions don’t conflict with duty to act in good faith – may be disciplined if does – see example on page 188  PEMA5122 Learning Unit 7 – Collective Labour Law Theme 2 – Collective Bargaining Structures, the Bargaining Process and Collective Agreements PM: Chapters 11, 12, & 13 LO7: Define the following terms: ‘trade union’  On p195 trade union is defined as  Association of employees  Who associate with each other with the purpose of regulating: employee – employer/s (organisation)  Only employees may join union – not job seekers or ex-employees  LO7: Define the following terms: ‘workplace forum’  Section 80:  A workplace forum may be established in any workplace in which an employer employs more than 100 employees  Sec 79 General functions of workplace forum  LO4: Explain the notion of “collective bargaining”.  Collective bargaining is the act of trade unions and employer(s) or employers’ organisation come together to discuss/negotiate (common ground) issues that will affect the parties involved such as wages or standard Ts and Cs in an industry – see flow chart on page 192  Upon success a collective agreement will be concluded, otherwise may use lock-out or strike  LO5: Describe the duty of employers, employers’ organisations, and trade unions to engage in collective bargaining  See example on page 193  Although section 23(5) collective bargaining is a constitutional right, it cannot be forced on either party.  Bargaining is a voluntary process  Read section 64(2) for disputes about refusal to bargain – refer to CCMA for advisory award then strike if no success  LO6: Differentiate between centralised (sectoral level) and decentralized (enterprise level) collective bargaining  See page 194 for different bargaining levels  decentralized (plant/enterprise level)  Bargain between employees and employer in specific factory  Conditions of employment/wages for individual employer and its employees  centralised (sectoral level)  Specific sector  Uniform conditions of employment in sector  Sector or industry level (national or provincial)  Bargaining councils are created in this context LO8: Discuss the link between union representation and organisational rights in the workplace.  Registered trade unions require organizational rights in order to serve their purpose effectively in the workplace  See flow chart on page 204 LO9: Discuss the organisational rights that can be granted to trade unions and the ways in which these organisational rights may be acquired.  See p204 Which organizational rights can be obtained:  Right to access of the workplace (s12)  Right to membership fee deduction by stop order (s13)  Right to elect shop steward  Leave for office bearer to perform activities (s15)  Right to disclosure (s16) – refer dispute for con-arb  See page 207 for acquisition  Membership in BC  Collective agreement  Majority union Section 21 process to obtain rights through CCMA (page 209, 7 steps)  Strike action by majority (wave sec 21 process) or minority (no sec 21 for minority) – see page 208 graph  LO10: Explain with reference to a given set of facts, how disputes relating to organisational rights ought to be resolved.  See info on p212  Interpretation of organisational right (excl sec 21) – CCMA conarb  Disclosure of information – CCMA conarb  Level of representation and entitlement to OR – sec 21 process or strike/lock-out  LO11: Provide a definition for a ‘bargaining council’ (BC).  One or more registered trade union(s); and  one or more registered employers’ organisation(s)  for an area or sector  Register themselves or adopt a constitution  for the purpose of dealing with matters of mutual interest between the parties  p196 LO12: Summarise the purpose and functions of a BC  Page 198  BCs are established for the purpose of dealing with matters of mutual interest between the parties  They perform the below functions p198:  Conclude/enforce collective agreements  Prevent/resolve labour disputes  Promote/establish training and education schemes  Establish benefit schemes for employees, eg pension  Proposals for NEDLAC consideration  Determine collective agreement matters barred from strikes  Provide industrial support services  Extend services to informal and home workers  LO13: Differentiate between bargaining councils, statutory councils and workplace forums as collective bargaining structures  See previous content on BC and WPF  LRA “statutory council” means a council established in terms of Part E of Chapter III;  Established by representative trade union or employers’ organisation where there is no registered bargaining council in order to perform similar function to BC such as (sec 43):  Resolve disputes  Promote/establish training and education schemes  Establish and administer employee benefits  Conclude collective agreements   Provide and itemized breakdown of the below: LO14: Explain the meaning of ‘collective agreement’ in terms of sec 213 of the LRA LO15: Discuss the legal effect of a collective agreement  If both parties are bound to the concluded collective agreement, the CA will variate the employment agreement.  The collective agreement binds the parties to the agreement, members of other unions to the extent it concerns them, all parties involved in relation to: Ts and Cs and conduct between employers and employees  Such collective agreement:  Must be in writing,  Must be concluded by registered union,  Must be a matter of mutual interest between parties concluding it  See example on page 200  LO16: Explain the dispute resolution procedure when it comes to disputes about collective agreements  According to sec 24, collective agreements should provide procedure for resolution about application/interpretation – no strike/lock-out only arbitration  Use conarb process  If unable to make use of dispute process, refer matter to CCMA LO17: Apply the legal principles relating to collective bargaining to a set of facts  Ensure you understand the information discussed and are able to apply same  Differentiate between agency shop agreements and closed shop agreements  agency shop agreements  A collective agreement that states that all employees eligible to be member of union should pay membership fees regardless of membership status (section 25)  Concluded by majority union + employer (organisation), through collective agreement and employer responsible to deduct fee (see additional info related to fee on page 189)  Closed shop agreement  Collective agreement making it compulsory for all employees to join majority union (section 26)  Concluded by majority union + employer (organisation), through collective agreement and 2/3 of employee must vote in favour of the agreement  Employer then deducts subscription fee, see pages 190 – 191 of when employer may and may not dismiss employee for reasons related to this agreement (graphs)  See pre-entry and post-entry closed-shop agreements on page 191