Section 96 of the Labour Relations Act outlines the steps to be followed when a trade union or employer’s organisation wishes to register with the Department of Labour. This process is relatively straightforward and includes the completion of a prescribed form, the submission of, for example, the trade union’s Constitution, and “any other information that may assist the registrar to determine whether or not the trade union or employer’s organisation meets the requirements for registration”. Once registered, there are various ongoing requirements to remain registered, including the keeping of accounting records and the conducting of annual audits. In addition, unions have a duty to keep certain records, including a list of all its members, the minutes of meetings as well as ballot papers, for a period of three years from the date of every ballot.
Provision is made in Section 101 of the Labour Relations Act for the changing of a trade union’s Constitution or its name. This again is a relatively simple process, and may include circumstances in which the trade union wishes to change or replace its Constitution.
One of the key components of any trade union’s Constitution is a description of its scope. A trade union’s scope describes, in simple terms, the industries in which the trade union seeks to operate, and this is typically listed in an annexure to a trade unions constitution. It follows that when a trade union drafts a Constitution that specifies the industries and sectors in which its scope of operations is to operate, it is obligated to limit its activities to those specific sectors and industries, and not stray into other, non-specified sectors.
One would expect a trade union, and indeed and employer’s organisation for that matter, to stay in its lane when it comes to conducting its day to day activities in the industries and sectors which it identifies as its jurisdiction, in its Constitution. For example, trade union registered to be active in the hairdressing industry should not seek to represent members in the mining industry.
The fact of the matter is however, that quite frequently, trade unions operate in industries and sectors outside the list of industries and sectors listed as their scope in their Constitution.
This very issue was addressed in a Labour Appeal Court judgment handed down in mid-2019 in the case of Lufil Packaging (Isithebe) (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & 2 Others (Case number DA8/2018).
In this case, it was held that “a trade union cannot create a class of membership outside the provisions of its constitution, and if they purport to do so, they act in excess of their powers and the act has no validity”. A purported decision by a union to admit a member who is not eligible under its constitution to become a member is not a mere internal decision which is immune from attack by an affected employer. Such a decision is ultra vires and invalid and as such, susceptible to challenge by the employer from whom organisational rights, based on the membership concerned, is sought.
So, what we saw in this case was the employer challenging the union’s scope in that it was successfully argued by them that the printing and packaging sector in which it operates does not form part of the union’s scope.
NUMSA (National Union of Metalworkers of South Africa) approached the employer “asking it to provide stop-orders for the deduction of union fees for its (alleged) members who were employees” of the employer. The employer refused to recognise NUMSA by virtue of the fact that NUMSA had registered scope (“metal and related industries), specified in its constitution, which fell outside of the employer’s scope of business. More specifically, the employer operated in the printing and packaging sector, not in metal and related industries.
The Lufil Labour Appeal court judgment held that “trade unions at common law have only those powers and capacities that are conferred on them by their constitutions. The LRA required unions to determine in their constitutions which employees are eligible to join them and by necessary implication precludes them from admitting as members employees who are not eligible to be admitted in terms of the trade union’s registered constitution. If it is shown that the persons concerned are precluded by the union’s constitution from becoming its members, any purported admission of such employees as members is ultra vires the union’s constitution and invalid”.
For this reason, it was held that “the employees on which (NUMSA) relied in alleging it was sufficiently representative could not be and thus were not, in law members of NUMSA, as they did not fall within the scope of the union in terms of NUMSA’s constitution”. Put differently, Lufil operated in the printing and packaging sector, not the metal and related industries sector.
Managing strikes is a topical subject, with the current bus drivers strike and the prospects of a teachers, police and nurse public sector strike, also over wages and conditions of service.
Section 213 of the Labour Relations Act defines a ‘strike’ as “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory.”
Section 68(5) of the Act provides that “Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not a dismissal is fair, the Code of Good Conduct: dismissal in Schedule 8 must be taken into account.”
Item 6 (1) of this Code deals with the substantive fairness of strike dismissals as follows, “Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of a dismissal in these circumstances must be determined in the light of the facts of the case, including:
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.”
To begin with, it is roundly assumed by employers that employees choose strike quite willingly and without consideration of the consequences. Whilst strikers frequently strike with zeal, it must be borne in mind that a decision to strike is not always necessarily an easy one, as the economic consequences of workers striking are significant.
In addition, strike ballots invariably result in certain workers opposing a proposed strike, yet they are outvoted and compelled to participate in the strike. Amendments to the Labour Relations Act are expected to be Gazetted before year-end, which will compel unions to hold secret strike ballot before commencing strike action.
Voting to strike in a strike ballot is one thing, sustaining the strike is quite another. It is a truism that worker support for strike activity begins to wean from the onset of the strike, and strikers become fragmented in their support from the continuance of the strike activity.
Maintaining support for strike over time becomes increasingly difficult, especially as the economic hardship of prolonged lack of income evolves. There is the added consideration of the increasing capacity and ability of employers to successfully implement contingency plans in response to strike action.
In the case of unprotected strikes, employers are often of the mistaken belief that participants in unprotected strike action can be quickly dismissed by virtue of the unprotected nature of the strike; nothing could be further from the truth. There is a process that must be followed.
Case law abounds with judgments which have declared the dismissal of strikers during unprotected strikes as having been unfair, with the dismissed unprotected strikers being reinstated.
Employees who embark on strike action without completely following the necessary pre-industrial action steps outlined in the Act participate in “unprotected” versus “protected” strike action. Participation in such unprotected strike action amounts to misconduct and “may constitute a fair reason for dismissal” [section 68(5) of the Act].
The remedies available to employers faced with unprotected strike action are interdicts, restraining orders, and an application to the Labour Court for compensation for any losses attributable to the unprotected strike action. In addition, employers are entitled to contemplate the dismissal of strikers for participation in the unprotected strike action, ensuring compliance with the pre-dismissal procedures outlined in Schedule 8 of the Act, the Code of Good Practice: Dismissal.
Primary considerations should be (1) was the unprotected strike spawned by unjustified conduct on the part of the employer? (2) the employer must promptly engage the union, outlining its intended course of action, (3) prior to the dismissal of unprotected strikers, the employer must have issued an ultimatum to the strikers “in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum”, and (4) “The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it”.
Strike related misconduct is, unfortunately, frequently evident during bot protected and unprotected strikes. On this subject, the Labour Appeal Court has confirmed that the right to strike is not a licence to engage in misconduct.
Closed shop agreements are provided for in section 26 of the Labour Relations Act (“LRA”), and are perhaps one of the the most thorny provisions of the LRA, and the most controversial in so far as the constitutionality of such agreements I concerned.
Put differently, the employer agrees to only hire union members.
In short, a closed shop agreement is a collective agreement whereby a majority trade union, and an employer, agree that it is a condition of employment that all employees must be members of the majority trade union.
Belonging to the union that they have signed the closed shop agreement with.
Such agreements attract attention for a host of reasons, and in some quarters are considered to contravene the freedom of association provisions of the LRA, and section 18 of the Consitution, which addresses the right to join or leave groups of a person’s own choosing.
Closed shop agreements were not included in the initial draft of the current LRA in the early 1990’s. They were however subsequently included under pressure from union federations, notwithstanding the fact that they have been outlawed in many other western democracies.
The closed shop agreement provisions of the LRA do however build in certain, at best, safeguards, when an employer and a majority trade union are contemplating entering into a closed shop agreement.
For example, a closed shop agreement may only be concluded with a majority trade union. Furthermore, employee’s who are not members of the union when the agreement is signed, need not become union members, although all new employees thereafter are required to join the union in order to secure employment with the employer.
A two-thirds majority of existing union members, supporting the closed shop agreement, is required.
It’s quite clear why an employer would elect not to enter into such an agreement. Most employers view closed shop agreements, perhaps correctly, to be reprehensible. Why should we give one union the right to have all our employees become members their members they ask; furthermore, why should we agree to this what’s more becoming a condition of employment?
This is precisely why closed shop agreements are so rare in South Africa, and indeed elsewhere.
On the other hand, they do in fact have virtues. This is why we have recently seen something of a revival in closed shop agreements locally of late. Why is this you may ask?
Well, it has to do with our increasing levels of union rivalry.
Some established trade unions who fear the entrance and influence of newer trade unions, have been seeking to enter into closed shop agreements in order to frustrate the entry of newer trade unions, think AMCU and LAMUSA, into their historical strong holds.
The only, and to some degree compelling, reason why an employer may agree to, and possibly welcome closed shop agreement, is to limit on site union rivalry, as the incumbent union, in essence, monopolises the employer’s employee’s union membership, via the closed shop agreement.
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