A trade union is an association of workers grouped together in one organisation to represent members in their dealings with employers.
A forum for negotiating the best deal for employees
A trade union is an association of workers grouped together in one organisation to represent members in their dealings with employers. The primary purpose of a union is to arrange relations between employers and employees through negotiation, usually in the form of collective agreements between themselves and the other members of bargaining councils and statutory councils.
Unions typically negotiate to win the best wage increases and improved conditions of service for their members, protect their members against victimisation and dismissal, represent their members in disputes and try to get the best deals for their members in situations where dismissals are inevitable. (See disputes at work).
Over the years, the trade union movement has fought hard to be accepted by the government and employers. Indeed, union leaders in South Africa have been shot, hanged, deported, detained without trial, banned and house-arrested. Furthermore, strikes were suppressed by force and even banned under martial law, such as in 1922 when the Chamber of Mines reneged on a manning agreement with the mining unions. The ‘Rand Rebellion’ that followed was forcibly put down by the army.
In 1924 the government passed the Industrial Conciliation Act, which formally recognised certain trade unions and provided conciliation machinery for relations between white unions and employers. But a major weakness of this legislation was that it excluded black workers.
The emergence of black trade unions and the largest strike in South African history (the 1973 strike of African workers in Durban) prompted the government into appointing a commission of inquiry into labour relations (the Wiehahn Commission). The commission’s report persuaded the state to open up the official collective bargaining system to African workers. Before 1979 the law had only recognised unions that had white, coloured and Indian members.
TYPES OF UNIONS Trade unions in South Africa form a patchwork of different types of unions, grouped into two major umbrella bodies – the giant Congress of South African Trade Unions (COSATU) and the smaller National Council of Trade Unions (NACTU). Smaller groupings include the Federation of Salaried Employees (FEDSAL) and the Mynwerkersunie (MWU).
The earliest unions, the so-called craft unions only organised skilled workers and tried to protect their members against both employers and unskilled workers.
Because of racism and the exclusion of African workers from the official collective bargaining system, skilled work tended to be reserved for whites, which led to unions recruiting members on the basis of race alone. The government of the day encouraged this by introducing certain racial provisions into the Industrial Conciliation Act, 1956 (later called the Labour Relations Act).
This, and other factors, led to the situation where, on the one hand, there was a well-organised, sophisticated conciliation machinery in the form of industrial councils for white skilled workers and, on the other hand, the vast bulk of South Africa’s workforce was unorganised. Once all references to race were removed from the Labour Relations Act in 1979, new unions were started. Their membership is predominantly black but they organise all workers, regardless of race or skill. In addition to fighting for the interests of their members, they have also adopted a strongly political agenda, a role which they seem determined to keep on playing. By the mid-1990s it was estimated that one-third of the total labour force was unionised. In 1995 a new Labour Relations Act (LRA) was passed, one which seeks to totally overhaul the labour relations system and, among other things, bring it into line with the conventions of the International Labour Organisation (ILO).
Case History – Fighting victimisation
In the first Industrial Court case, the unregistered Metal and Allied Workers’ Unionalleged that Precision Tools, an engineering company, was victimising its members by dismissing or threatening to dismiss them for belonging to the union. The company objected that an unregistered trade union had no standing to bring such a case to the Industrial Court.
- The court ruled that a trade union involved in a dispute represented the nterests of its members. ‘If a union cannot represent its employees, then all the employees must come before the court at great expense and inconvenience for production. The victimisation provisions have, as their object, not only the protection of the employee but also the protection of the trade union itself, because trade unionism is fundamental to the collective bargaining process recognised by the Industrial Conciliation Act.’
(Metal and Allied Workers’ Union v A Mauchle trading as Precision Tools, 1980)
Case History – When the majority holds sway
A union, duly authorised by its members, entered into an agreement with an employer. Some of the union members dissented from the terms of the agreement and challenged the authority of the union to act on their behalf in the Industrial Court.
The court found that the union representative had an implied authority to enter into an agreement on behalf of all members.
- On appeal, the Labour Appeal Court confirmed that unions operate on the basis of majoritarianism and, provided the agreements reached are in the interest of the majority of members, they are binding on all the members. This is true even if some members can justifiably claim that the settlement is not in their interests.
(Ramolesane & another v Andres Mentis & another, 1991)
The 1995 LRA guarantees the right of an employee to participate in forming a trade union or union federation, to join a union, subject to its constitution, to participate in lawful union activities, to stand for election as an office bearer, official or union representative and to hold office if elected.
No employer may:
- Discriminate against an employee or person seeking employment for exercising any of these rights;
- Prevent such a person from exercising these rights;
- Prejudice such a person for exercising these rights;
- Advantage such a person, or promise to advantage such a person, in exchange for not exercising any of these rights or for not participating in any proceedings which are described in the Act.
Also, employers may not impose, or threaten to impose, any of the following requirements on an employee or person seeking employment:
- That the employee may not be a member of a trade union or workplace forum;
- That the employee may not become a union or forum member;
- That the employee must give up union or forum membership.
Allegations of victimisation must be referred to the relevant bargaining or statutory council if one exists in that sector, or to the commission for conciliation, mediation and arbitration (CCMA).
The 1995 LRA provides a number of organisational rights for trade unions:
- The right of access to employers’ premises for union-related purposes;
- The right to stop-order facilities;
- The right to elect trade union representatives at the workplace;
- The right to time off for union activities;
- The right to information for collective bargaining purposes.
Unions also have the right to strike, although not all strikes are protected by the Act. (See strikes.)
Although it is not compulsory, being registered as a trade union does confer many benefits. A union which applies to be registered may not have a name (or a shortened name) which could be confused with the name of any other union or employers’ organisation, it must be based in South Africa, and it must be independent of the control, interference or influence of any employers’ organisation. It must also have a constitution which, among other things:
- Does not allow discrimination – direct or indirect – on the basis of race or sex;
- States that the organisation is an association not for gain (non-profit);
- Makes provision for membership and other fees, how these will be determined, how they may be spent and how they will be banked and invested;
- Prescribes how people qualify and are admitted as members, how membership can be terminated and how the benefits granted to members can be suspended;
- Provides appeal procedures against suspension of benefits and termination of membership;
- Prescribes rules for meetings of members and meetings of representatives (including quorums required for meetings), how decisions are made and the minutes which must be kept;
- Prescribes how officials are nominated and elected, what their responsibilities are, how they may be removed from office and how they may appeal against being removed from office;
- Provides that the union must, before calling a strike, conduct a ballot among its members;
- Provides that no members may be disciplined or have their membership terminated for not participating in a strike if no strike ballot was held, or if the majority of members who voted in a ballot did not support the strike.
The constitution of a registered union is a public document which may be consulted in the office of the Registrar of Labour Relations.
Once it is registered, a union becomes a corporate body with various rights:
- It can form a bargaining councils or statutory councils;
- It can own property;
- It can participate in an established bargaining or statutory council. If it is refused participation by the existing parties to the council, it has the right of appeal to the labour court for an order compelling the council to admit it;
- It can refer a dispute which cannot be resolved at council level to the CCMA or theLabour Court;
- It can apply to the Labour Court for the reinstatement of any of its members who have been dismissed, or for the reinstatement of conditions of work that have been altered by an employer;
- Union members are protected against victimisation;
- Its members may not be held liable for the obligations or liabilities of the union simply because they are members;
- Its office-bearers, officials or representatives may not be held personally liable for any loss suffered by any person as a result of an act performed or omitted in good faith while performing their duties or functions on behalf of the union;
- It can ask the Labour Court to declare that another union is no longer independent in order to have the other union’s registration cancelled;
- It has immunity from liability for damages caused to an employer by the participation of its members in a strike protected by the Labour Relations Act.
Warning – Expulsion and ‘Kangaroo courts’
All union constitutions provide for the disciplining of members who break union rules, through penalties such as fines, suspension and expulsion. In the case of a closed shop, loss of membership can have serious consequences as expulsion will almost certainly mean dismissal.
The courts require trade unions to follow their constitutional procedures strictly and will often come to the aid of members who have been the victims of unfair treatment.
The union is not entitled to try a member in what is commonly known as a ‘kangaroo court’. The member cannot be hastily summoned to a meeting and faced with charges without previous warning; nor can the member be expelled in his or her absence.
Controls on registered trade unions
The Act subjects registered trade unions to various controls:
- Amendments to the union’s constitution or name have to be registered;
- Any proposed amalgamation with another union has to be reported to the Registrar of Labour Relations;
- Books of account have to be audited and information relating to finances, membership and officials has to be submitted to the registrar;
- Financial records, records of members’ contributions and minutes of meetings must be kept for three years;
- Inspectors appointed by the Minister of Labour have wide powers of entry, search and inquiry into union affairs. They can subpoena witnesses, hear evidence, conduct cross-examinations and make recommendations to the minister arising out of the inquiries.
Closed shop agreements
A representative trade union and an employer or an employers’ organisation may conclude a collective agreement providing for a ‘closed shop’ which requires all employees covered by the agreement to be members of the union. No union which is party to a closed-shop agreement may refuse membership to an employee or expel an employee unless this is done in accordance with the union’s constitution and the reason for the refusal or expulsion is fair. It is not unfair to dismiss an employee for refusing to join a union which is party to a closed-shop agreement, or who is refused membership by the union on fair grounds, or who is expelled from the union on fair grounds.
Agency shop agreements
In a situation where employees who are not members of a registered union are benefiting from the activities of that union, the union may conclude an agency shop agreement with the employer. This means that the employer agrees to deduct an agency fee from the wages of such employees to help pay the costs the union incurs when bargaining on behalf of non-members.