1 Current Labour Law 2011 Collective Bargaining Clive Thompson

Developments over the year: Anti-union conduct case Minimum services agreements Interpretation of collective agreement cases Duty to bargain cases Rights of deregistered unions 2 Current Labour Law 2011

Anti-union conduct The issue: “Whether it is legitimate, lawful and constitutional to reward non-unionised employees with an early increase in salary and impose a condition upon payment thereof that the employee concerned does not join the union.” 3 Current Labour Law 2011 SA FREIGHT & DOCK WORKERS UNION v SAFCOR FREIGHT

Anti-union conduct Section 5 of the LRA: Protection of employees and persons seeking employment (1) No person may discriminate against an employee for exercising any right conferred by this Act. (2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following – (a) require an employee or a person seeking employment – (i) not to be a member of a trade union or workplace forum; (ii) not to become a member of a trade union or workplace forum; or (iii) to give up membership of a trade union or workplace forum; (b)... (c) prejudice an employee or a person seeking employment because of past, present or anticipated – (i) membership of a trade union or workplace forum;... 4 Current Labour Law 2011 SA FREIGHT & DOCK WORKERS UNION v SAFCOR FREIGHT

Minimum services agreement 72. Minimum services.—The essential services committee may ratify any collective agreement that provides for the maintenance of minimum services in a service designated as an essential service, in which case— (a) the agreed minimum services are to be regarded as an essential service in respect of the employer and its employees; and (b) the provisions of section 74 do not apply. 5 Current Labour Law 2011 NUM & ANOTHER v ESKOM HOLDINGS (PTY) LTD

Minimum services agreement 74. Disputes in essential services18.—(1) Any party to a dispute that is precluded from participating in a strike or a lock-out because that party is engaged in an essential service may refer the dispute in writing to— (a)... (b) the Commission, if no council has jurisdiction. (2)... (3) The council or 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 by the council or the Commission. 6 Current Labour Law 2011 NUM & ANOTHER v ESKOM HOLDINGS (PTY) LTD

Collective agreement – what constitutes Powers of trade union to bind members 7 Current Labour Law 2011 MTAKATI AND BAY UNITED FOOTBALL CLUB

Collective agreement interpretation Parol evidence rule in relation to collective agreements 8 Current Labour Law 2011 SA COMMERCIAL CATERING & ALLIED WORKERS UNION AND HUNTERS COUNTRY HOUSE

Disclosure of information “I cannot see how the disclosure of financial statements and records can now have any relevance to the dispute at hand as the employees have accepted the respondent’s terms unconditionally in order to return to work.” 9 Current Labour Law 2011 FAWU & MONTI FEEDS

Right to bargain What right does an unregistered union have to engage in collective bargaining? Union’s certificate of registration cancelled Union argued that, pending the outcome of its application for leave to appeal, the effect of the Labour Court’s judgment upholding cancellation was stayed and, accordingly, the union should be treated as registered for the time being. The company contended that unless the union obtained a special order to stay the effect of the Labour Court’s decision to dismiss the appeal against the union’s deregistration, the registered status of the union did not revive, even if leave to appeal against that decision was granted. 10 Current Labour Law 2011 NEWU v LEONARD DINGLER

Right to bargain The right to engage in collective bargaining does not entail a right to compel an employer to bargain: “What this means for present purposes is that an order confirming the existence of NEWU’s right would have no practical consequences in the circumstances of this matter. It also means that an order of the court could not prevent the harm which NEWU anticipates will befall the union if negotiations do not take place, and accordingly, it cannot be said the union runs the risk of irreparable harm if the order is not granted.” 11 Current Labour Law 2011 NEWU v LEONARD DINGLER

Union deregistration Union was deregistered by the Registrar of Labour Relations back in October 2006, but tries to keep going through legal challenges. The appellant’s registration was cancelled by the registrar for four reasons: (i) Discrepancies between compensation received and amounts paid out from employers in 2002, 2003 and (ii) Playing of Lotto in 2003 and (iii) Unsecured loans made to the president in 2002, 2003 and (iv) Other lack of proof of genuineness of the union. 12 Current Labour Law 2011 NATIONAL ENTITLED WORKERS UNION v MINISTRY OF LABOUR & OTHERS

Union deregistration On 25 November 2010, Labour Court dismisses NEWU’s appeal against the registrars’ deregistration decision. On 26 November 2010, NEWU applied for and was granted leave to appeal against this decision. On 6 December 2010, the CCMA ruled that NEWU was no longer entitled to represent its members in proceedings before it. Union seeks order that it remains entitled to represent its members in proceedings before the CCMA or the Labour Court pending appeal. 13 Current Labour Law 2011 NEWU & OTHERS v DIRECTOR OF THE CCMA

Employer deregistration Employers’ organisation deregistered Appeal against decision lodged in the Labour Court Organisation seeks declaratory order that lodging of an appeal automatically suspends the deregistration decision. 14 Current Labour Law 2011 GENERAL DOMESTIC AND PROFESSIONAL EMPLOYERS ORGANISATION v REGISTRAR OF LABOUR RELATIONS