In practice, employers are often faced with a situation whereby a union has recruited employees in the workplace and now wishes to meet with the employer to negotiate organisational rights such as access to the workplace, stop order facilities in respect of union membership fees, the election of shop stewards and disclosure of information.
Section 21 of the Labour Relations Act (Act 66 of 1995), hereafter “The LRA”, determines that the union must notify the employer in writing of its intention to exercise the organisational rights referred to above and the employer must then within 30 days after receiving such a notice meet with the union and attempt to conclude an agreement which will regulate the rights and the exercise thereof. Despite the obligation on the employer to meet with the union, there is no duty on the employer to grant the organisational rights or negotiate with the union as the LRA follows a voluntarist approach to collective bargaining. This was confirmed by the Constitutional Court in SA National Defence Union v Minister of Defence and Others in which the Court noted that an enforceable duty to bargain will lead to courts becoming involved in controversial matters which fall outside the legislative framework and that an enforceable duty to bargain accordingly does not exist. (Par 56)
The refusal of the employer to negotiate with the union and recognise the union as a bargaining agent in the workplace may, however, have far-reaching consequences for the employer’s business. Employees’ greatest weapon against an employer who refuses to bargain is recourse to industrial action. Section 64(2) of the LRA provides that the employees may embark on strike action in the event that the employer refuses to bargain. The refusal to bargain includes a refusal to recognise a trade union as a bargaining agent, the resignation of a party from a bargaining council, failure to agree at which level bargaining should take place and failure to agree on the issues that should be bargained about. (Sec 64(2)). Before the employees can embark on strike action, the matter must be referred to the CCMA or the relevant bargaining council for conciliation and a certificate of non-resolution must be issued or 30 days must pass since the referral. In addition to the aforementioned, an advisory award must be issued by the CCMA. Such an award is however not binding on either party and is merely aimed at assisting the parties in concluding an agreement.
In the event that the above process was followed by the employees and the union and notice of the intended strike was given at least 48 hours prior to its commencement, the strike will be protected and the employer will not be entitled to resort to disciplinary action, interdicts or damages claims against the employees or the union.
It is accordingly advisable that employers consider the possibility of industrial action when faced with a union’s request to negotiate on recognition in the workplace and that an outright refusal to bargain should be carefully considered.
ABOUT THE AUTHOR
Carla Theron graduated with an LLB from the University of Stellenbosch in 2015. She is a Legal Advisor at SEESA Labour, Cape Town.