Chapter III: Collective Bargaining

Part A: Organisational Rights

11. Trade union representativeness

In this Part, unless otherwise stated, "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.

12. Trade union access to workplace

1. Any office-bearer or official of a representative trade union is entitled to enter the employer's premises in order to recruit members or communicate with members, or otherwise serve members' interests.

2. A representative trade union is entitled to hold meetings with employees outside their working hours at the employer's premises.

3. The members of a representative trade union are entitled to vote at the employer's premises in any election or ballot contemplated in that trade union's constitution.

4. The rights conferred by this section are subject to any conditions as to time and place that are reasonable and necessary to safeguard life or property or to prevent the undue disruption of work.

13. Deduction of trade union subscriptions or levies

1. Any employee who is a member of a representative trade union may authorise the employer in writing to deduct subscriptions or levies payable to that trade union from the employee's wages.

2. An employer who receives an authorization in terms of subsection (1) must begin making the authorised deduction as soon as possible and must remit the amount deducted to the representative trade union by not later than the 15th day of the month first following the date each deduction was made.

3. An employee may revoke an authorization given in terms of subsection (1) by giving the employer and the representative trade union one month's written notice or, if the employee works in the public service, three months' written notice.

4. An employer who receives a notice in terms of subsection (3) must continue to make the authorised deduction until the notice period has expired and then must stop making the deduction.

5. With each monthly remittance, the employer must give the representative trade union-

  1. a list of the names of every member from whose wages the employer has made the deductions that are included in the remittance;
  2. details of the amounts deducted and remitted and the period to which the deductions relate; and
  3. a copy of every notice of revocation in terms of subsection (3).

14. Trade union representatives

1. In this section, "representative trade 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.

2. In any workplace in which at least 10 members of a representative trade union are employed those members are entitled to elect from among themselves-

  1. if there are 10 members of the trade union employed in the workplace, one trade union representative;
  2. if there are more than 10 members of the trade union employed in the workplace, two trade union representatives;
  3. if there are more than 50 members of the trade union employed in the workplace, two trade union representatives for the first 50 members, plus a further one trade union representative for every additional 50 members up to a maximum of seven trade union representatives;
  4. if there are more than 300 members of the trade union employed in the workplace, seven trade union representatives for the first 300 members, plus one additional trade union representative for every 100 additional members up to a maximum of 10 trade union representatives.
  5. if there are more than 600 members of the trade union employed in the workplace, 10 trade union representatives for the first 600 members, plus one additional trade union representative for every 200 additional members up to a maximum of 12 trade union representatives; and
  6. if there are more than 1 000 members of the trade union employed in the workplace, 12 trade union representatives for the first 1000 members, plus one additional trade union representative for every 500 additional members up to a maximum of 20 trade union representatives.

3. The constitution of the representative trade union governs the nomination, election, term of office and removal from office of a trade union representative.

4. A trade union representative has the right to perform the following functions-

  1. at the request of an employee in the workplace, to assist and represent the employee in grievance and disciplinary proceedings;
  2. to monitor the employer's compliance with the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer;
    3. c.

    to report any alleged Contravention of the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer to-

    1. the employer;
    2. the representative trade union; and

    3. any responsible authority or agency; and

  3. to perform any other function agreed to between the representative trade union and the employer.

5. Subject to reasonable conditions, a trade union representative is entitled to take reasonable time off with pay during working hours -

  1. to perform the functions of a trade union representative; and
  2. to be trained in any subject relevant to the performance of the functions of a trade union representative.

15. Leave for trade union activities

1. An employee who is an office-bearer of a representative trade union, or of a federation of trade unions to which the representative trade union is affiliated, is entitled to take reasonable leave during working hours for the purpose of performing the functions of that office.

2. The representative trade union and the employer may agree to the number of days of leave, the number of days of paid leave and the conditions attached to any leave.

3. An arbitration award in terms of section 21(7) regulating any of the matters referred to in subsection (2) remains in force for 12 months from the date of the award.

16. Disclosure of information

1. For the purposes of this section, "representative trade 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.

2. Subject to subsection (5), an employer must disclose to a trade union representative all relevant information that will allow the trade union representative to perform effectively the functions referred to in section 14(4).

3. Subject to subsection (5), whenever an employer is consulting or bargaining with a representative trade union, the employer must disclose to the representative trade union all relevant information that will allow the representative trade union to engage effectively in consultation or collective bargaining.

4. The employer must notify the trade union representative or the representative trade union in writing if any information disclosed in terms of subsection (2) or (3) is confidential.

5. An employer is not required to disclose information-

  1. that is legally privileged;
  2. that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court;
  3. that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
  4. that is private personal information relating to an employee, unless that employee consents to the disclosure of that information.

6. If there is a dispute about what information is required to be disclosed in terms of this section, any party to the dispute may refer the dispute in writing to the Commission.

7. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

8. The Commission must attempt to resolve the dispute through conciliation.

9. If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.

10. In any dispute about the disclosure of information contemplated in subsection (6), the commissioner must first decide whether or not the information is relevant.

11. If the commissioner decides that the information is relevant and if it is information contemplated in subsection (5)(c) or (d), the commissioner must balance the harm that the disclosure is likely to cause to an employee or employer against the harm that the failure to disclose the information is likely to cause to the ability of a trade union representative to perform effectively the functions referred to in section 14(4) or the ability of a representative trade union to engage effectively in consultation or collective bargaining.

12. If the commissioner decides that the balance of harm favours the disclosure of the information, the commissioner may order the disclosure of the information on terms designed to limit the harm likely to be caused to the employee or employer.

13. When making an order in terms of subsection (12), the commissioner must take into account any breach of confidentiality in respect of information disclosed in terms of this section at that workplace and may refuse to order the disclosure of the information or any other confidential information which might otherwise be disclosed for a period specified in the arbitration award.

14. In any dispute about an alleged breach of confidentiality, the commissioner may order that the right to disclosure of information in that workplace be withdrawn for a period specified in the arbitration award.

17. Restricted rights in domestic sector

1. For the purposes of this section, "domestic sector" means the employment of employees engaged in domestic work in their employers' homes or on the property on which the home is situated.

2. The rights conferred on representative trade unions by this Part in so far as they apply to the domestic sector are subject to the following limitations-

  1. the right of access to the premises of the employer conferred by section 12 on an Office-bearer or official of a representative trade union does not include the right to enter the home of the employer, unless the employer agrees; and
  2. the right to the disclosure of information conferred by section 16 does not apply in the domestic sector.

18. Right to establish thresholds of representativeness

1. An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace , or the parties to a bargaining council , may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organizational rights referred to in sections 12, 13 and 15.

2. A collective agreement concluded in terms of subsection (1) is not binding unless the thresholds of representativeness in the collective agreement are applied equally to any registered trade union seeking any of the Organizational rights referred to in that subsection.

19. Certain organisational rights for trade union party to council

Registered trade unions that are parties to a council automatically have the rights contemplated in sections 12 and 13 in respect of all workplaces within the registered scope of the council regardless of their representativeness in any particular workplace.

20. Organisational rights in collective agreements

Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights.

21. Exercise of rights conferred by this Part

See flow diagram No. 2 in Schedule 4.

1. Any registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by this Part in a workplace.

2. The notice referred to in subsection (1) must be accompanied by a certified copy of the trade union's certificate of registration and must specify-

  1. the workplace in respect of which the trade union seeks to exercise the rights;
  2. the representativeness of the trade union in that workplace, and the factor relied upon to demonstrate that it is a representative trade union; and
  3. the rights that the trade union seeks to exercise and the manner in which it seeks to exercise those rights.

3. Within 30 days of receiving the notice, the employer must meet the registered trade union and endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that workplace.

4. If a collective agreement is not concluded, either the registered trade union or the employer may refer the dispute in writing to the Commission.

5. The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on the other party to the dispute.

6. The Commission must appoint a commissioner to attempt to resolve the dispute through conciliation.

7. If the dispute remains unresolved, either party to the dispute may request that the dispute be resolved through arbitration.

8. If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner-

  1. must seek -

    1. to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and

    2. to minimise the financial and administrative burden of requiring an employer to grant organizational rights to more than one registered trade union;

  2. must consider-

    1. the nature of the workplace;
    2. the nature of the one or more organisational rights that the registered trade union seeks to exercise;
    3. the nature of the sector in which the workplace is situated; and

    4. the organizational history at the workplace or any other workplace of the employer; and

  3. may withdraw any of the organisational rights conferred by this Part and which are exercised by any other registered trade union in respect of that workplace, if that other trade union has ceased to be a representative trade union.

9. In order to determine the membership or support of the registered trade union, the commissioner may-

  1. make any necessary inquiries;
  2. where appropriate, conduct a ballot of the relevant employees; and
  3. take into account any other relevant information.

10. The employer must co-operate with the Commissioner when the commissioner acts in terms of subsection (9), and must make available to the commissioner any information and facilities that are reasonably necessary for the purposes of that subsection.

11. An employer who alleges that a trade union is no longer a representative trade union may apply to the Commission to withdraw any of the organizational rights conferred by this Part, in which case the provisions of subsections (5) to (10) apply, read with the changes required by the context.

22. Disputes about organizational rights

1. Any party to a dispute about the interpretation or application of any provision of this Part, other than a dispute contemplated in section 21, may refer the dispute in writing to the Commission.

2. The party who refers a dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

3. 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 as soon as possible.

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