CHAPTER III
Collective Bargaining
PART A: Organisational Rights
1.
Trade union representativeness
In this Part,
unless otherwise stated, "representative trade union" means a
registered trade union, or two or more registered trade unions acting jointly,
that are sufficiently representative of the employees employed by an employer
in a workplace.
2.
Trade union access to workplace
(1)
Any office-bearer or official
of a representative trade union is entitled to enter the employer's premises in
order to recruit members or communicate with members, or otherwise serve
members' interests.
(2)
A representative trade union is
entitled to hold meetings with employees outside their working hours at the
employer's premises.
(3)
The members of a representative
trade union are entitled to vote at the employer's premises in any election or
ballot contemplated in that trade union's constitution.
(4)
The rights conferred by this
section are subject to any conditions as to time and place that are reasonable
and necessary to safeguard life or property or to prevent the undue disruption
of work.
3.
Deduction of trade union subscriptions or levies
(1)
Any employee who is a member of
a representative trade union may authorise the employer in writing to deduct
subscriptions or levies payable to that trade union from the employee's wages.
(2)
An employer who receives an
authorisation in terms of subsection (1) must begin making the authorised
deduction as soon as possible and must remit the amount deducted to the
representative trade union by not later than the 15th day of the month first
following the date each deduction was made.
(3)
An employee may revoke an authorisation
given in terms of subsection (1) by giving the employer and the representative
trade union one month's written notice or, if the employee works in the public
service, three months' written notice.
(4)
An employer who receives a
notice in terms of subsection (3) must continue to make the authorised
deduction until the notice period has expired and then must stop making the
deduction.
(5)
With each monthly remittance,
the employer must give the representative trade union-
(a)
a list of the names of every
member from whose wages the employer has made the deductions that are included
in the remittance;
(b)
details of the amounts deducted
and remitted and the period to which the deductions relate; and
(c)
a copy of every notice of
revocation in terms of subsection (3).
4.
Trade union representatives
(1)
In this section,
"representative trade union" means a registered trade union, or two
or more registered trade unions acting jointly, that have as members the
majority of the employees employed by an employer in a workplace.
(2)
In any workplace in which at
least 10 members of a representative trade union are employed, those members
are entitled to elect from among themselves-
(a)
if there are 10 members of the
trade union employed in the workplace, one trade union representative;
(b)
if there are more than 10
members of the trade union employed in the workplace, two trade union
representatives;
(c)
if there are more than 50
members of the trade union employed in the workplace, two trade union
representatives for the first 50 members, plus a further one trade union
representative for every additional 50 members up to a maximum of seven trade
union representatives;
(d)
if there are more than 300
members of the trade union employed in the workplace, seven trade union
representatives for the first 300 members, plus one additional trade union
representative for every 100 additional members up to a maximum of 10 trade
union representatives;
(e)
if there are more than 600
members of the trade union employed in the workplace, 10 trade union representatives
for the first 600 members, plus one additional trade union representative for
every 200 additional members up to a maximum of 12 trade union representatives;
and if there are more than 1000 members of the trade union employed in the
workplace, 12 trade union representatives for the first 1000 members, plus one
additional trade union representative for every 500 additional members up to a
maximum of 20 trade union representatives.
(3)
The constitution of the
representative trade union governs the nomination, election, term of office and
removal from office of a trade union representative.
(4)
A trade union representative
has the right to perform the following functions-
(a)
at the request of an employee
in the workplace, to assist and represent the employee in grievance and
disciplinary proceedings;
(b)
to monitor the employer's
compliance with the workplace-related provisions of this Act, any law
regulating terms and conditions of employment and any collective agreement
binding on the employer;
(c)
to report any alleged
contravention of the workplace-related provisions of this Act, any law
regulating terms and conditions of employment and any collective agreement
binding on the employer to-
(i)
the employer;
(ii)
the representative trade union;
and
(iii)
any responsible authority or
agency; and
(d)
to perform any other function
agreed to between the representative trade union and the employer.
(5)
Subject to reasonable
conditions, a trade union representative is entitled to take reasonable time
off with pay during working hours-
(a)
to perform the functions of a
trade union representative; and
(b)
to be trained in any subject
relevant to the performance of the functions of a trade union representative.
5.
Leave for trade union activities
(1)
An employee who is an
office-bearer of a representative trade union, or of a federation of trade
unions to which the representative trade union is affiliated, is entitled to
take reasonable leave during working hours for the purpose of performing the
functions of that office.
(2)
The representative trade union
and the employer may agree to the number of days of leave, the number of days
of paid leave and the conditions attached to any leave.
(3)
An arbitration award in terms
of section 21(7) regulating any of the matters referred to in subsection (2)
remains in force for 12 months from the date of the award.
6.
Disclosure of information
(1)
For the purposes of this
section, "representative trade union" means a registered trade union,
or two or more registered trade unions acting jointly, that have as members the
majority of the employees employed by an employer in a workplace.
(2)
Subject to subsection (5), an
employer must disclose to a trade union representative all relevant information
that will allow the trade union representative to perform effectively the
functions referred to in section 14(4).
(3)
Subject to subsection (5),
whenever an employer is consulting or bargaining with a representative trade
union, the employer must disclose to the representative trade union all
relevant information that will allow the representative trade union to engage
effectively in consultation or collective bargaining.
(4)
The employer must notify the
trade union representative or the representative trade union in writing if any
information disclosed in terms of subsection (2) or (3) is confidential.
(5)
An employer is not required to
disclose information-
(a)
that is legally privileged;
(b)
that the employer cannot
disclose without contravening a prohibition imposed on the employer by any law
or order of any court;
(c)
that is confidential and, if
disclosed, may cause substantial harm to an employee or the employer; or
(d)
that is private personal
information relating to an employee, unless that employee consents to the
disclosure of that information.
(6)
If there is a dispute about what
information is required to be disclosed in terms of this section, any party to
the dispute may refer the dispute in writing to the Commission.
(7)
The party who refers the
dispute to the Commission must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(8)
The Commission must attempt to
resolve the dispute through conciliation.
(9)
If the dispute remains
unresolved, any party to the dispute may request that the dispute be resolved
through arbitration.
(10)
In any dispute about the
disclosure of information contemplated in subsection (6), the commissioner must
first decide whether or not the information is relevant.
(11)
If the commissioner decides
that the information is relevant and if it is information contemplated in subsection
(5)(c) or (d), the commissioner must balance the harm that the disclosure is
likely to cause to an employee or employer against the harm that the failure to
disclose the information is likely to cause to the ability of a trade union
representative to perform effectively the functions referred to in section
14(4) or the ability of a representative trade union to engage effectively in
consultation or collective bargaining.
(12)
If the commissioner decides
that the balance of harm favours the disclosure of the information, the
commissioner may order the disclosure of the information on terms designed to
limit the harm likely to be caused to the employee or employer.
(13)
When making an order in terms
of subsection (I 2), the commissioner must take into account any breach of
confidentiality in respect of information disclosed in terms of this section at
that workplace and may refuse to order the disclosure of the information or any
other confidential information which might otherwise be disclosed for a period
specified in the arbitration award.
(14)
In any dispute about an alleged
breach of confidentiality, the commissioner may order that the right to
disclosure of information in that workplace be withdrawn for a period specified
in the arbitration award.
7.
Restricted rights in domestic sector
(1)
For the purposes of this
section, "domestic sector" means the employment of employees engaged
in domestic work in their employers' homes or on the property on which the home
is situated.
(2)
The rights conferred on
representative trade unions by this Part in so far as they apply to the
domestic sector are subject to the following limitations-
(a)
the right of access to the
premises of the employer conferred by section 12 on an office-bearer or
official of a representative trade union does not include the right to enter
the home of the employer, unless the employer agrees; and
(b)
the right to the disclosure of
information conferred by section 16 does not apply in the domestic sector.
8.
Right to establish thresholds of representativeness
(1)
An employer and a registered
trade union whose members are a majority of the employees employed by that
employer in a workplace, or the parties to a bargaining council, may conclude a
collective agreement establishing a threshold of representativeness required in
respect of one or more of the organisational rights referred to in sections 12,
13 and 15.
(2)
A collective agreement
concluded in terms of subsection (1) is not binding unless the thresholds of
representativeness in the collective agreement are applied equally to any
registered trade union seeking any of the organisational rights referred to in
that subsection.
9.
Certain organisational rights for trade union party to council
Registered trade
unions that are parties to a council automatically have the rights contemplated
in sections 12 and 13 in respect of all workplaces within the registered scope
of the council regardless of their representativeness in any particular
workplace.
10. Organisational rights in
collective agreements
Nothing in this
Part precludes the conclusion of a collective agreement that regulates
organisational rights.
11. Exercise of rights
conferred by this Part 4
(1)
Any registered trade union may
notify an employer in writing that it seeks to exercise one or more of the rights
conferred by this Part in a workplace.
(2)
The notice referred to in
subsection (1) must be accompanied by a certified copy of the trade unions
certificate of registration and must specify-
(a)
the workplace in respect of
which the trade union seeks to exercise the rights;
(b)
the representativeness of the
trade union in that workplace, and the facts relied upon to demonstrate that it
is a representative trade union; and
(c)
the rights that the trade union
seeks to exercise and the manner in which it seeks to exercise those rights.
(3)
Within 30 days of receiving the
notice, the employer must meet the registered trade union and endeavour to
conclude a collective agreement as to the manner in which the trade union will
exercise the rights in respect of that workplace.
(4)
If a collective agreement is
not concluded, either the registered trade union or the employer may refer the
dispute in writing to the Commission.
(5)
The party who refers the
dispute to the Commission must satisfy it that a copy of the referral has been served
on the other party to the dispute.
(6)
The Commission must appoint a
commissioner to attempt to resolve the dispute through conciliation.
(7)
If the dispute remains
unresolved, either party to the dispute may request that the dispute be
resolved through arbitration.
(8)
If the unresolved dispute is
about whether or not the registered trade union is a representative trade
union, the commissioner-
(a)
must seek
(i)
to minimise the proliferation
of trade union representation in a single workplace and, where possible, to
encourage a system of a representative trade union in a workplace; and
(ii)
to minimise the financial and
administrative burden of requiring an employer to grant organisational rights
to more than one registered trade union;
(b)
must consider-
(i)
the nature of the workplace;
(ii)
the nature of the one or more
organisational rights that the registered trade union seeks to exercise;
(iii)
the nature of the sector in
which the workplace is situated; and
(iv)
the organisational history at
the workplace or any other workplace of the employer; and
(c)
may withdraw any of the
organisational rights conferred by this Part and which are exercised by any
other registered trade union in respect of that workplace, if that other trade
union has ceased to be a representative trade union.
(9)
In order to determine the
membership or support of the registered trade union, the commissioner may-
(a)
make any necessary inquiries;
(b)
where appropriate, conduct a
ballot of the relevant employees; and
(c)
take into account any other
relevant information.
(10)
The employer must cooperate
with the commissioner when the commissioner acts in terms of subsection (9),
and must make available to the commissioner any information and facilities that
are reasonably necessary for the purposes of that subsection.
(11)
An employer who alleges that a
trade union is no longer a representative trade union may apply to the
Commission to withdraw any of the organisational rights conferred by this Part,
in which case the provisions of subsections (5) to (10) apply, read with the
changes required by the context.
4. See flow diagram No. 2
in Schedule 4.
12. Disputes about
organisational rights
(1)
Any party to a dispute about
the interpretation or application of any provision of this Part, other than a
dispute contemplated in section 21, may refer the dispute in writing to the
Commission.
(2)
The party who refers a dispute
to the Commission must satisfy it that a copy of the referral has been served
on all the other parties to the dispute.
(3)
The Commission must attempt to
resolve the dispute through conciliation.
(4)
If the dispute remains
unresolved, any party to the dispute may request that the dispute be resolved
through arbitration as soon as possible.