COLLECTIVE BARGAINING STRUCTURE CONSIDERATIONS By John Brand

INTRODUCTION

CONTENT Organisational Rights in terms of the Labour Relations Act Collective Bargaining Rights in terms of the Labour Relations Act Collective Bargaining Agreement Election units Bargaining units Bargaining forums All comers approach Majoritarian approach Criteria for determining an appropriate bargaining unit Multi-Enterprise Collective Bargaining Pre-conditions for Effective Collective Bargaining

LRA ORGANISATIONAL RIGHTS

–A recognition agreement may not provide organisational rights less extensive than those prescribed in the LRA –A recognition agreement may otherwise regulate organisation rights –A representative trade union is entitled to certain organisational rights and a majority union is entitled to additional organisational rights. –A 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. In terms of the LRA

LRA ORGANISATIONAL RIGHTS (cont) –Workplace means “ The place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reasons of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation”. Definition of Workplace

LRA ORGANISATIONAL RIGHTS (cont) –Any office bearer or official of a sufficiently representative trade union is entitled to access to: recruit communicate serve member interests hold meetings outside of working hours conduct a ballot –Sufficiently representative trade unions are entitled to deduction of union subscriptions and levies.

LRA ORGANISATIONAL RIGHTS (cont) –Majority representative 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. –Majority representative unions are entitled, in any workplace with more than 10 members, to elect union representatives to: assist and represent members in grievance and discipline monitor employer’s compliance with relevant legislation and agreements report contraventions perform any other agreed function –Subject to reasonable conditions, majority trade union representatives and office bearers are entitled to take reasonable time off with pay during working hours to perform his or her functions and to be trained.

LRA ORGANISATIONAL RIGHTS (cont) –A majority union and an employer may define thresholds of what is sufficiently representative in a collective agreement. The thresholds set in such a collective agreement must apply equally to any registered trade union seeking such organisational rights.

LRA COLLECTIVE BARGAINING RIGHTS –There is no duty to bargain collectively in terms of the LRA –The duty only arises by agreement –What happens if a party refuses to bargain –Bargaining Councils –Statutory Councils

COLLECTIVE BARGAINING AGREEMENTS MANAGEMENT SUPERVISORS ADMIN & TECH GRADES THE WORKPLACE

COLLECTIVE BARGAINING AGREEMENTS (cont) –Election unit Is a unit in which representativeness is measured –Bargaining unit Is a community of industrial interests for the purposes of collective bargaining –Bargaining forum Is a forum in which representatives from a bargaining unit or units negotiate 12 SOME RELEVANT DEFINITIONS

COLLECTIVE BARGAINING AGREEMENTS (cont) –The employer agrees to recognise every union that has members – or more than a given number of members – in its workforce –Bargaining then takes place separately with each union or with them all in a joint bargaining forum –Agreements concluded by a union bind only its members, but the employer retains the right to impose the same terms and conditions on the non-unionised employees and, after deadlock, on the members of the other unions 13 ALL COMERS APPROACH

COLLECTIVE BARGAINING AGREEMENTS (cont) –The recognition of only one union or alliance of unions for a given group of employees. The group of employees is termed the “bargaining unit” –Its ambit is normally determined by reference to the workplace interests that employees have in common –The union is recognised for collective bargaining only when it and/or its alliance union has recruited more than half the workers in the bargaining unit –Agreements concluded by the union or alliance of unions bind all the workers in the bargaining unit, whether they are union members or not 14 MAJORITARIAN APPROACH

COLLECTIVE BARGAINING AGREEMENTS (cont) –Collective bargaining commences sooner –Freedom of association is promoted –Collective bargaining is more extensive –The system is self-regulating –Binding agreements are more easily achieved –Minorities are heard 15 ARGUMENTS IN FAVOUR OF ALL COMERS APPROACH

COLLECTIVE BARGAINING AGREEMENTS (cont) –Avoids proliferation of bargaining –Prevents surface bargaining –Prevents ratcheting –Avoids discrimination –Limits the incidence of industrial action –Limits inter union rivalry –Is consistent with principles of industrial democracy 16 ARGUMENTS IN FAVOUR OF MAJORITARIASM APPROACH

COLLECTIVE BARGAINING AGREEMENTS (cont) –Similarity in scale and manner of determining earnings –Similarity in employment benefits, hours of work and other terms and conditions of employment –Similarity in level of work performed –Similarity in the qualifications, skills and training of employees –Frequency of contact or interchange among employees –Geographic proximity 17 CRITERIA FOR DETERMINING A BARGAINING UNIT

COLLECTIVE BARGAINING AGREEMENTS (cont) –Continuity or integration of production process –Common supervision and determination of industrial relations policy –Relationship to the administrative organisation of the employer –History of collective bargaining –Desires of employees –Extent of union organisation 18 CRITERIA FOR DETERMINING A BARGAINING UNIT (cont)

COLLECTIVE BARGAINING AGREEMENTS (cont) LARGE UNITS –Delays onset of bargaining –Are more difficult to organise –Are more difficult to negotiate in because of diverse skills, attitudes and interests –There is more conflict between disparate interests –Makes achieving agreement more difficult –Limits union competition creates monopoly unions CONSEQUENCES OF BARGAINING UNIT SIZE

COLLECTIVE BARGAINING AGREEMENTS (cont) LARGE UNITS (cont) –Reduces IR costs staff frequency of bargaining –Promotes economies of scale re benefits –Promotes professionalism of bargaining –Increases union power? –Decreases union power? –Causes one bigger strike CONSEQUENCES OF BARGAINING UNIT SIZE (cont)

COLLECTIVE BARGAINING AGREEMENTS (cont) SMALL UNITS –Hastens onset of bargaining –Easier to organise in –Easier to negotiate in –Closer to worker interests –Easier to agree in –Increases union competition –Increases IR cost CONSEQUENCES OF BARGAINING UNIT SIZE (cont)

COLLECTIVE BARGAINING AGREEMENTS (cont) SMALL UNITS (cont) –Limits economies of scale –Limits professionalism of bargaining –Encourages multiplicity of bargaining –Impacts on power –Encourages ratchet bargaining –Causes multiplicity of small strikes CONSEQUENCES OF BARGAINING UNIT SIZE (cont)

MULTI-ENTERPRISE COLLECTIVE BARGAINING

–Professionalism of bargaining –Economies of scale –Floor setting –Ceiling setting –Limits frequency of bargaining –Limits IR costs to company –Keeps competition out Unions Employers ARGUMENTS FOR

MULTI-ENTERPRISE COLLECTIVE BARGAINING (cont) –High floors cause unemployment when extended to non parties –Keeps certain wages down –One size fits all problems –Remote from workers –Cannot deal with specific interests of workers –Difficulties in reaching agreement –Big strikes –Weak strikes –Encourages beaurocracy ARGUMENTS AGAINST

PRE-CONDITIONS FOR EFFECTIVE COLLECTIVE BARGAINING

–Appropriate election units –Appropriate bargaining units –Appropriate level or combinations of levels of bargaining –Appropriate subjects of bargaining Minimums Actuals –Acceptance of the pluralist idea of partnership and mutual gain –Acceptance of each other as legitimate entities with divergent and legitimate interests –Acceptance of constitutional democracy –Recognition that the right to strike is fundamental –Recognition that strike action should be passive and not aggressive

PRE-CONDITIONS FOR EFFECTIVE COLLECTIVE BARGAINING (cont) –Commitment to good faith bargaining –Commitment to the exhaustion of disputes procedures –Commitment to industrial democracy –Commitment to passive picketing –Commitment to non-violence –Negotiation which is characterised by: Joint training in modern negotiation theory and practice Use of independent and trusted facilitators Meticulous preparation Adoption of problem solving methodology

PRE-CONDITIONS FOR EFFECTIVE COLLECTIVE BARGAINING (cont) –Negotiation which is characterised by (cont): Exploring causes, interests, needs, fears and concerns Credible exchange of information Creative solution search Objective solution evaluation Creating value

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