Our Constitution outlines freedom of association and general protections for employees and employers. Our Labour Relations Act is one of the pieces of labour law that fleshes out the rights conferred on all of us in the employment arena.

It deals with organisational rights and collective agreements giving trade unions and staff the right to strike and employers the right to a recourse to a lockout.

Likewise, trade unions and employer organisations need to be registered. Once they are legally recognised and registered, they have enormous powers under our labour law.

Many of the collective agreements between unions and employers organisations result in bargaining councils for specific industries.

The industries then negotiate and implement bargaining council agreements, adding to and enhancing the Basic Conditions of Employment Act.

The dispute resolution structures in our law are functional and effective. One of the most effective institutions under the Department of Employment and Labour is the Commission for Conciliation, Mediation and Arbitration (CCMA).

We also have the Labour Courts that fall under the Department of Justice. The various tribunals, including the bargaining council system for conciliation and arbitration, deal with issues such as unfair dismissal and unfair labour practice.

Our law has many governing regulations that give effect to and regulate the constitutional rights conferred upon all of us. We also have South Africa’s obligations as a member state of the International Labour Organization (ILO), everyone in South Africa is protected against discrimination. The Labour Relations Act, specifically, outlines processes to ensure that discrimination is dealt with speedily and efficiently.

We have trade unions acquiring organisational rights, enabling them to recruit members, hold meetings and elections and serve their members’ interests. If a trade union can prove sufficient representativity, then they can require the employer to make deductions from the wages to pay over to the trade union and give the trade union a list of their members.

Trade unions may have shop stewards who act on behalf of the trade union and their members. Their shop stewards are normally well-trained and can exercise oversight on the employer to ensure that the employer follows the collective agreements and the law.

On request, shop stewards may assist any of their members on any work-related proceedings. This includes disciplinary and grievance proceedings and any discussions about a possible dismissal for operational requirements (retrenchment).

Importantly, the trade unions and the shop stewards get involved in annual wage negotiations. Employers must disclose all relevant information that will allow a trade union to perform their duties.

Trade unions acquire rights through membership of bargaining councils or by agreements with employers. If there is a dispute about the organisational rights, then the dispute would be resolved by conciliation or, finally, by arbitration at the CCMA.

It is becoming more and more common for trade unions to sign collective agreements with employers to ensure that the bargaining runs smoothly and all the organisational rights are properly recognised. The agreements are binding on the union and the employer and, in certain circumstances, can be extended to non-parties of the bargaining council.

We have an interesting phenomenon whereby a trade union that enjoys a majority in the workplace can agree with the employer that the employer will deduct wages from non-union members which would then be known as an agency fee.

The reality is that once a trade union has a majority and negotiates a wage increase, the increase would be for all the categories of members who are part of the union and would include other employees. The registered trade union that has the majority support and an agreement with the employer, in writing, can then identify employees to whom it applies.

It must be noted that the fees received by the trade union cannot be used to fund political parties. We have another concept in South Africa, called a closed-shop agreement. This is a special agreement between the employer and the employers' organisation and registered trade unions who represent most of the employees in the workplace.

A ballot would be held in those circumstances and if two-thirds of the employees voted that they wanted a closed-shop agreement, then the agreement, in writing, would become enforceable. Employees would then be compelled to belong to the trade union.

Following on from this, we have the establishment of bargaining councils. First, the parties must adopt a constitution and then apply for registration with the Registrar of Labour Relations.

Bargaining Councils are institutions that set the terms and conditions of employment in a sector and the area over which they have jurisdiction. Bargaining councils have extensive powers and, under the collective agreement, they employ agents who police and administer compliance of the collective agreements.

The agreements are, more often than not, enforced through conciliation and arbitration.

* Michael Bagraim is a veteran labour lawyer.

** The views expressed here are not necessarily those of Independent Media.

Cape Argus

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