Study Unit 9 PART 1

Question 1

What is collective bargaining?

Answer 1

Process in which workers [represented by TU’s] and employers make claims upon each other and resolve them through a process of negotiation leading to collective agreements that are mutually beneficial
-The LRA doesn’t compell collective bargaining

Question 2

What is a trade union according to section 213 of the LRA?

Answer 2

An association of employees wose main purpose is to regulate relations between employees and employers including employers organisations

Question 3

What is an employers organisation according to section 213 of the LRA?

Answer 3

Any number of employers associated together for the purpose of regulating relations between employers/employees /trade unions

Question 4

Registartion of Trade Unions

What are the requirements for the registration of a trade union?

Answer 4

• Name does not resemble name of another TU
• Adopted constitution compliant with
  section 95(5) of LRA
• Has address in Republic
• Is independent (not controlled by an employer+ free from employer interference)
• Must be genuine

Question 5

Constitution of a trade union/employers organisation

What does section 95(5) of the LRA require a TU’s constitution to comply with?

Answer 5

-95(5)(p) of the LRA= trade union seeking registration to include a requirement for strike and ballots in its constitutions
-95(5)(q) of the LRA=prevents a union from disciplining members or terminating membership for failing or refusing to participate in a strike if no ballot was held or the majority of members that voted in terms of the ballot did not vote in favour of the strike

Question 6

Constitution of Trade Unions and Employers Organisations

What did the AMCU v Mahle Behr case state regarding secret ballots for strikes?

Answer 6

that a union is only required to hold a secret ballot after that union had received a directive from the Registrar of Labour Relations instructing it to amend its Constitution to that effect

Question 7

Registration of Trade Unions +Employers Organisations

How are TU’s and EO’s registered?

Answer 7

Apply for registration to the registrar by submittng:
1.A prescribed form that has been properly completed
2.A copy of its constitution
3.Any info to assist the registrar in determining whether the TU/EO meets registration requirements
=Registrar enters the TU’s name in appropriate register/ Registration results in TU being regarded as a body corporate

Question 8

Registration of Trade Unions/ Employers Organisation

What does s97(1) provide for regarding TU registration?

Answer 8

A certificate of registration is proof of a TU/EO’s registration
-A TU/EO can sue/be sued in its own name
-Acquire property+dispose of property
conclude agreements

Question 9

Registration of Trade Union/Employers Organisation

Why is TU registration important?

Answer 9

• Conclude collective agreements
• Participate in establishment of
  bargaining council
• Participate in establishment of
  workplace fourm
• Represent members in dispute
  resolution proceedings
• Qualify for organisational rights

Question 10

When may TU members not be disciplined/have their membership terminated if they don’t participate in a strike?

Answer 10

1.No ballot was held about the strike/lock-out
2.a ballot was hed but majority of members who voted didn’t vote in favour of the strike/lockout

Question 11

Bargaining Councils

What are Bargaining Councils?

Answer 11

Voluntary bodies established y a registered TU/EO that have achieved a threshold of representativity in a defined sector.
A BC serves as a forum for the negotation of the terms and conditions of employment of the union parties to the council

Question 12

Establishment of a bargaining council

What does section 27(2) provide for with regards to the establishment of a BC?

Answer 12

The state can be a party to any bargaining council if it is an employer in the sector and area in respect of which the council was established

Question 13

Establishing a Bargaining council

Who are the parties to a baragining council?

Answer 13

1. 1 or more registered trade unions
2. 1 or more registered Employers Organisations

Question 14

Estalishing a bargaining council

Under what ground may someone object to the registration of a bargaining council?

Answer 14

1. Applicant hasn’t complied with section 29 provisions
2. sector and where application was made is inappropriate
3. The applicant is not sufficiently represented in the sector where the application is made

=Applicant has 14 days to respond to the objection

Question 15

Establishing a bargaining council

What are the powers and functions of a bargaining council?

Answer 15

1.Conclude and enforce collective agreements
2.Prevent and resolve disputes
3.Promote and establish training and
education schemes
4.Establish and administer
schemes or funds (medical aid, pensions)
5.Develop proposals for submission to
NEDLAC/other appropriate forum on
policy/legislation that affects sector

Question 16

Bargaining Councils in the Public Sector

What is the public service?

Public Servic Co-ordinating Bargaining Council

Answer 16

The national department ,provincial administrations and departments in sec 7(2) of the Public Service Act

Question 17

Bargaining Councils in the Public Sector

What functions may public service co-ordinating bargaining councils perform?

Answer 17

All Bargaining Council functions:
a.matters regulated by uniform rules and standards that apply across public services
b.matters that apply to t’s and c’s of employmnett applicable to 2 or more sectors
c. matters assigned to the state as employer in respect of public service

Question 18

Collective Agreements

What are collective agreements?

Answer 18

Written agreements concerning the t’s and c’s of employment concluded between a registered trade union+employers/ employers organisations

Question 19

Collective Agreements

Who is bound by collective agreements?

Answer 19

Doesn’t apply to the parties that conclude the agreement.
* The members of the parties to the collective agreement
* Employees who are not members of the registered trade union party to agreement i

If:
* Employees are identified in agreement
* Agreement expressly binds employees
* Trade union party to agreement is the majority union in the workplace

Extension of collective agreements to nonmembers provided f

Question 20

Collective Agreements

What does section 23(1)(d) provide for regarding collective agreements?

Answer 20

Terms of colletive agreement can be extended to non-members ito s23(1)(d) provided that non-members are expressly identified in the agreement.

Question 21

Collective Agreements

What does sec 31 of the LRA regulating regarding collective agreements?

Answer 21

Regulates the binding nature of collective agreements and provides that a CA concluded in a bargaining council binds only the parties to the bargaining council who are parties to the collective agreement.

Question 22

Collective Agreements

How does section 32 regulate the extension of a collective agreement?

Answer 22

A bargaining council may request the minister to extend collective agreements to non-parties to the agreement that are within the councils registered scope

Question 23

Collective Agreements

What did the Free Market Foundation v Minister of Labour case state regarding collective agreements?

Answer 23

Parties held that sec 32 violates the legality principle because it permits the extension of collective agreements to non-parties-contrary to public interest by people not subject to sate supervison

=The court held that the ministers exercise of powers under section 32 constitutes administrative action

Question 24

Collective Agreements

What are the 2 thresholds that must be met before a collective agreement can be concluded according to section 32 of the LRA?

Answer 24

THRESHOLD 1:Majority TU to BC must vote in favour of extension
Majority EO to BC must vote in favour of extension

THRESHOLD 2:*Minister must be satisfied that there is compliance with:
* The majority of employees to whom collective agreement will apply if extended must be members of TU’s who are party to the BC; or
* Members of EO’s that are party to BC must if collective agreement is extended employ majority of employees to whom collective agreement will apply; and
* Non-parties must fall with BC’s registered scope

Question 25

Collective Agreements

What happens if the requirements for the extension of collective agreements have been met?

Answer 25

The minister must extend the collective agreement within 60 days of receiving the request byy publishing a notice in the GG

Question 26

Collective Agreements

What if the provisions concerning the representativeness of the Trade Union have not been complied with regarding extension of the CA?

Answer 26

The minister can still extend it:

-if the parties to the BC are sufficiently representative within the registered scope of the BC in the area
-The minister is satisfied that a failure to extend te agreement may undermine the collective bargaining at sectoral level