By Jacques van Wyk and Andre van Heerden, Werksmans Attorneys
In the instance where a majority union enters into a collective agreement
with an employer which clearly identifies and binds non-parties, such agreement
will be binding upon minority unions.
In the recent case of POPCRU v Ledwaba NO and others (JR 636/2012) [2013]
ZALCJHB 244 (5 September 2013) POPCRU was the majority union representing
the employees of the Department of Correctional Services ("DCS').
POPCRU had concluded a threshold agreement with the DCS wherein it
agreed to the minimum representivity required for obtaining organisational
rights. In addition, POPCRU was a member of the Safety and Security Sectoral
Bargaining Council ("SSSBC').
SACOSWU, a minority trade union approached the DCS seeking basic
organisational rights. As SACOSWU had insufficient membership it wished to
accrue such rights by means of a collective agreement.
Remarkably the DCS entered into a collective agreement with SACOSWU.
POPCRU in turn challenged the legitimacy of the DCS decision alleging that in
doing so the DCS undermined its collective agreement with POPCRU. The
arbitrator before the General Public Service Sectoral Bargaining Council found in
favour of SACOSWU. POPCRU elected to review the decision before the Labour
Court.
In upholding POPCRU?s concerns the court made, among others, the
following important findings:
? the issue in dispute is a balancing of the freedom of association in the one
instance and the sanctity of collective agreements on the other hand;
? the aim of the granting of organisational rights in the Labour Relations Act
66 of 1996, as amended, ("LRA') is to facilitate the right to bargain and the
conclusion of collective agreements;
? as such the terms of collective agreements can supersede the provisions of
the LRA in certain instances;
? in addition, it was clear from the structure of the LRA that preference was
given to the rights of majority unions;
? as such and where a majority union had entered into a collective
agreement with an employer where organisational rights are regulated,
minimum thresholds are expressly prescribed for organisational rights and such
thresholds have been made binding on non-parties then the minority union is
debarred from entering into a collective agreement with the employer. Rather,
the minority union must seek to comply with the provisions of the majority trade
union?s threshold agreement if it wishes to obtain organisational rights;
? in the instance where there are two conflicting incompatible collective
agreements in place the majority trade union?s collective agreement will take
preference.
This case reconfirms the principle that the LRA favours a majoritarian approach
to collective bargaining within the workplace. To that extent majority unions and
employers can legitimately curtail and regulate the rights of minority unions to
be granted organisational rights within the workplace.
