Collective

Bargaining
Thresholds
Matters of Mutual Interest
Collective Agreements
Principles of collective bargaining
• Voluntarism
•Majoritarism
•Bargaining levels
 Bargaining Levels
•Plant level – between individual ERs and
unions.
•Sectoral level/industry/centralised level – in
the past unions and employers realised that
plant level bargaining was costly and time
consuming and lead to different outcomes in
industry. The solution was more centralised
bargaining once a year or every 2 to 3 years.
 Benefits of sectoral collective
bargaining
•It is low on transactional costs – negotiations are
conducted by representative organisations.
•Shifts CB on major issues out of the workplace –
workplace relations are less strained.
•CB outcomes are general in nature (allowing for some
variations at workplace level).
•CB sets a social floor for competition – sets
reasonable standards applicable to all EEs in the
sector – competition between ERs is based on
productivity not undesirable working conditions.
 Benefits of sectoral collective
bargaining
•Strikes and lockouts take place less frequently at
sector level thus less damaging to ERs because
competitors in the local market are also subject to the
strike
 Bargaining Thresholds
S11 of the LRA
Unions must represent a sufficient number of workers in the
employer’s employ before the employer may be obliged to
grant organisational rights.
Commissioners determining sufficiency must:
• Seek to minimise proliferation of trade union representation
in a single workplace.
• Encourage (where possible) a system of a representative TU
• Minimise financial & administrative burden on ER by
requiring it to give rights to more than one TU
 Whether or not to grant organisational
rights continued….s 21(8)(b) of the LRA

Commissioner must consider:

•Nature of the workplace
•Nature of organisational rights requested
•Nature of the sector
•Organisational history at the workplace or any other workplace
of ER
Whether or not to grant organisational
rights continued….s 21(8)(A)
Commissioner may grant
• Section14 rights if TU is entitled to 12, 13 & 15 and no other
TU has them.
• Section 16 rights if TU is entitled to 12, 13, 14 & 15 and no
other TU has them.
• Section 21(8)(A) rights lapse when the TU stops being the
most representative in the workplace.
 Bargaining Thresholds – what
constitutes sufficiently representative?
•SA Clothing and Textile Workers Union v Sheraton Textiles (Pty)
Ltd (1997) 7 (3) SALLR 48 (CCMA). The Commissioner found that,
generally, a union should be considered sufficiently representative if it
can influence negotiations, the financial interests of those engaged in
the industry or peace and stability within the industry or any section
of the industry. The Commissioner stated that the interests represented
by a union and not exclusively the numerical representativeness should
be taken into account. The Commissioner however added that insofar as
a numerical threshold is relevant, guidance may be obtained from the
requirement of 30% for all unions wanting to establish Councils at
sectoral level.

•However in UPUSA v Komming Knitting (1997) 4 BLLR 508 (CCMA),

Commissioner Komming held that UPUSA, who represented 7 members
out of a workforce of 31 (22%) was sufficiently representative.
 Bargaining Thresholds – what
constitutes sufficiently representative?
•FAWU v Telwidra Feeds (Pty) Ltd (2009) – TU
applied for s 12 & 13, parties failed to reach
agreement, dispute referred to CCMA.

•Commissioner noted that LRA is silent on threshold

required for organisational rights but 30% had been
suggested as a guideline (SACCAWU v Speciality
Stores Ltd (1998); Health & Hygiene Services v
Seedat (1999).
 Bargaining Thresholds – what
constitutes sufficiently representative?
SA Clothing & Textile Workers Union v Marley (SA) (Pty) Ltd
t/a Marley Flooring (Mobeni) (2000) 21 ILJ 425 (CCMA)
commissioner –
• Emphasised s 21(8)(a) & (b) referring to existing Agency
shop and lack of admin burden on ER.
• Showed obvious bias in favour of maintain the status quo
with one union – organisational history in the workplace and
the fact that SACTU was not a member of the bargaining
council.
• Saw granting of rights to SACTWU would be the recipe for
conflict and discord, and the unnecessary duplication of
administrative tasks that would not benefit the employees
concerned.
 Bargaining Thresholds – what
constitutes sufficiently representative?
National Union of Metalworkers of SA & others v Bader Bop
(Pty) Ltd & another 2003 (3) SA 513 (CC); (2003) 24 ILJ 305
(CC) para 40
There is nothing, in part A of chapter III, which expressly states
that unions which admit that they do not meet the requisite
threshold membership levels are prevented from using the
ordinary processes of collective bargaining and industrial
action to persuade employers to grant them organizational
facilities such as access to the workplace, stop-order facilities
and recognition of shop stewards recognised that a minority
union can lawfully strike or conclude an agreement to secure
organisational rights in circumstances where they do not meet
the statutory threshold – in terms of section 20
 Bargaining Thresholds - s 18
•ER and a majority TU may conclude a collective
agreement establishing a threshold of
representativeness in respect of rights to access (s 12),
deduction of dues (s 13) and leave for union reps (s 15).
•Thresholds must be applied equally to a registered TUs
seeking organisational rights.
•This type of agreement may ensure the presence of
only one TU in the workplace – especially if threshold
is set very high.
 Bargaining Thresholds - s 18
S 18 “enable[s] the parties to put a numerical figure to
the otherwise somewhat indeterminate concept of
'sufficiently representative' for which the stipulated
sections (12, 13 and 15) provide.
But the primary object of the section is to promote
workplace majoritarianism, that is, the system under
which a single union or group of unions enjoy
exclusive rights or representation within a workplace”
(Brassey).
 Police & Prisons Civil Rights Union v
Ledwaba NO & others (2014) 35 ILJ 1037
(LC)
•The Dept of Correctional Services concluded s 18 threshold
BC CA with majority union POPCRU. Later SACOSWU
concluded a CA with the Dept in terms of which it acquired
organisational rights, despite not meeting the thresholds set in
the s 18 CA. POPCRU challenged this new CA with
SACOSWU claiming that it was in breach of the pre-existing
and binding CA with the Dept.
•S 20 - ‘nothing in this Part precludes the conclusion of a
collective agreement that regulates organisational rights’.
•BC arbitrator held that the CA between SACOSWU had been
validly concluded in terms of s 20 and in keeping with the CC
finding in Minewokers v Bader Bop (para 40); in line with right
to engage in collective bargaining s 23(5) of minority unions.
 Police & Prisons Civil Rights Union v
Ledwaba (LC decision 5 Sept 2013)
•CA should be given primacy to promote orderly collective
bargaining s 1(d).
•CA is binding to parties to the agreement and to identified non-
parties.
•The right to strike extends to minority union seeking to obtain
organisational rights (Bader Bop) but s 65(3)(a) states that the
right to strike is prohibited where the issue in dispute is
regulated by a collective agreement.
•Minority union was bound to the CA which regulated
thresholds of representativeness.
 Police & Prisons Civil Rights
Union v Ledwaba (LC decision)
A ‘collective agreement hierarchy’ meant that where
CA with majority union conflicts with that of minority
union, majority union should take precedence – in line
with majoritarianism.
Transnet Soc Ltd v National Transport
Movement 2014 (LC)
•S 18 threshold set at 30% of EE membership.
•Transnet (minority union) applied for OR - did not
meet 30%.
•LC found that the CA regulated organisational rights
of the parties to the agreement only, and did not
extend to bind EEs that were not members of any of
the union-parties to the CA (pg 103/para 15).
•Since Transnet was not party to the CA in question
(unlike in POPCRU), it was not bound by it.
 Transnet Soc Ltd v National
Transport Movement 2014 (LC)
In obiter LC concluded that the correct
position is that there is no express limitation
in s 64 & 65 prohibiting a minority union
from demanding those organisational rights
and exercising the right to strike in order to
exert pressure on ER (pg 104) – in line with
international standards and constitutional
interpretation.
 granting it ORs.
•POPCRU argued that if this were the case it would
POPCRU v Ledwaba (LAC)
render s 18 agreements worthless & the principle
of majoritarianism would be undermined.
•POPCRU distinguished the present case from
Bader Bop where there was no s 18 threshold
agreement.
POPCRU v Ledwaba (LAC)
• Agreed that it was best (for EE and ERs) to avoid the
proliferation of TUs in the workplace but a monopoly
imposed by law is at variance with the notion of
freedom of association.
•Minority unions should not be deprived of ways to
defend their members interests.
•Majoritarianism is the policy choice of the LRA but
minority unions which are unable to access to
collective bargaining should at least be granted rights
to represent their members at disciplinary hearings &
grievances.
 POPCRU v Ledwaba (CC)
•CC had stated (Bader Bop) that majoritarianism can be fair only
if it allows minorities to co-exist, to organise, to represent
members and to seek to challenge majorities.
•CC has also stated that majoritarianism should not morph into an
‘instrument of oppression’ where majority dictates over minority.
•The LC had approached the matter on the basis that the threshold
closed the door completely on SACOSWU (and other minorities).
•S 18 gives meaning to s 11 ‘sufficiently representative’ – but s 20
‘nothing in this part’ (as interpreted in Bader Bop) includes the
situation where a s 18 threshold has been set.
•Minorities can still bargain for entry if they don’t meet the
threshold.
•Thus the agreement for the acquisition of organisational rights
between SACOSWU & DCS was valid.
AMCU v Chamber of Mines
(2017)(CC)
S 18 - majoritarianism at the expense
of minority/small unions?
•A majority TU and an employer can set a high
threshold, making it impossible for a rival smaller or
new TU to establish itself.
•LRA majoritarianism allows for a situation where
majority TUs tend 'to connive with employers to raise
or lower the drawbridge as considerations of
expediency dictate‘ (Brassey)
Thresholds before Marikana Massacre
On August 16 2012, South African police opened fire on a large
crowd of men who had been on strike at a platinum mine at
Marikana in North West Province. They shot down 112 of
them, killing 34.
A wage dispute had not been resolved and had resulted in an
unprotected strike.
NUM, the recognised BC agent (representing a majority of
employees) was not supported by the striking workers at
Lonmin’s Karee mine.
In June 2002 Lonmin signed ‘central recognition agreement’
with NUM and 2 others, relating to Lonmin’s entire operations
setting threshold of acquiring organisational rights at 33%.
Thresholds before Marikana Massacre
In August 2011 Lonmin enters new recognition agreements with
NUM & 2 others setting the threshold at 50% +1 in the
bargaining unit where the majority of workers are employed.
They also provide for a transitional period of 15 months.
In December 2011 Lonmin signs a limited organisational rights
agreement with AMCU, on the basis that it represents a majority
at the Karee Mine. Accordingly, Lonmin ceases to treat all its
operations as a single unit or workplace, although this agreement
contemplates full recognition for AMCU if it attains 50% plus 1
membership at Lonmin Marikana Operations. all of Lonmin’s
mining operations constituted a single workplace.
In August 2012 less than 20% of employees at Karee were NUM
members and AMCU had membership of 50.57% (AMCU had
signed a limited organisational rights agreement with Lonmin.
Majoritarian model in need of reform?
•Increased loss of confidence in existing
bargaining structures – workers feeling
disempowered by the entrenched large unions
•Workers turning to minority/new unions.
•Marikana massacre seen as indicative of
problems with current majoritarian CB model.
•Large unions alienated from their rank and file
•Hence amendment to LRA by Act 6 of 2014.
 BargainingThresholdsReform
s18AmendmentAct6of2014

s 21(8A), (8B) & (8C) of the LRA has been amended

to allow the CCMA to grant these rights to minority
TU in some situations:
• S 21(8C) – commissioner may grant s 12,13 &15
rights even where a s 18 CA on thresholds exists
and the applicant TU/TU coalition does not meet
the threshold if all parties to the CA have been
given a chance to participate in the arbitration and
the TU/TU coalition represents a significant
interest, or a substantial number of employees.
• S 21(8D) – it doesn’t matter if the s 18 threshold
was concluded before s 21(8C) came into force.
 Bargaining Thresholds reform
(sufficiently representative)
•In terms of s 21(8) & (8A) the CCMA is left to
decide (Act 6 of 2014).
•But majority TU (alone or in a coalition) in the
workplace can set the threshold with the
employer – by CA (section 18-20).
•Dispute on refusal to bargain (to recognise a
TU as a bargaining agent) governed by s 64(2).
Right to engage in collective bargaining - s 23(5)
Constitution
•Does this create a duty to bargain?
•Constitution encourages bargaining on the basis of
voluntarism.
•Voluntarism does not mean ERs and TUs negotiate
voluntarily – they negotiate in order to avert the
economic pressures brought about by a strike or lock-
out (Minister of Defence v SANDU 2007 (1) SA 422
(SCA)).
•There is no general duty to bargain – no express
entitlement to bargain.
 Right/duty to collectively
bargain?
•CB “is the means preferred by the legislature for the
maintenance of good labour relations and for the
resolution of labour disputes” (NUM v East Rand
Gold & Uranium Co).
•The right has been interpreted as a freedom to
bargain collectively and thus no duty to bargain.
•There is a right to use collective economic power in
pursuit of a demand.
•LRA imposes a positive right and structure to bargain
collectively in the public sector but not in the private
sector.
 Employers are not obliged to bargain
LRA affords both EE and ER rights and
obligations which place them in a position to
force or resist collective bargaining:
• Right to join union and approach the other
side as a strong collective.
• The right to strike or lockout.
• Protection against dismissal in protected
strike.
• ER’s right to employ replacement labour
during strike.
 Collective agreement can impose
duty to bargain
•Duty to bargain can be imposed via a Collective
Agreement.
•There is no implied duty to bargain – the union
claiming the entitlement to bargain must prove the
agreement confers such a right expressly or by
necessary implication (SAPU v Minister of Safety and
Security [2013] 1 BLLR 60 (LC).
 Duty to bargain in good faith
•Bona fide negotiations
“... an important element of the obligation to bargain in
good faith is to meet and to negotiate with an honest
intention of reaching an agreement, if this is possible”
(NUM v East Rand Gold & Uranium Co Ltd 1992 (1)
SA 700 (A)).
•There is no duty to reach consensus.
 Bargaining subjects
•In general CB can take place on any subject –
matters of mutual interest concerning the
employment relationship
•CB may not cover issues
 In conflict with any statutory provision
 In conflict with any bargaining council agreement
 That would be unreasonable or unfair
 That would be legally and physically impossible to
execute
Bargaining Councils (BC) - ss 27-34
•1 or more TU and 1 or more ER organisations
may establish a BC for a sector by adopting a
compliant constitution and registering it.
•BC function is to engage in centralised sectoral
collective bargaining and make binding CAs.
•There is no duty to join the Bargaining Council
operating in a sector but LRA imposes various
rights and duties on the BC.
 Binding effect of bargaining council
collective agreement s 31 & 32
•A BC constitution may stipulate that parties to the BC
are bound by a CA even if they were not parties to the
agreement (s 31).
•BC agreement may extend beyond the parties to the BC
to non-parties (all ERs and EEs falling within the scope
of the BC’s jurisdiction), provided that:
o The BC parties have majority representation in the
industry/sector;
o The majority of parties represented vote in favour of
the extension to non-parties AND
o The Minister of Labour, so requested by the BC,
extends it to the identified non-parties.
Enforcement of BC collective agreements - parties
& non-parties

•BC can monitor and enforce compliance with

CAs (s 33A).
•The CA may authorise a designated agent to
issue compliance order requiring compliance
within a specified time (s 33).
•BC can refer unresolved compliance issue to
arbitration – (if arbitration involves a non-party
the non-party can object to arbitration by the
BC, in which case CCMA will have
jurisdiction.
 Bargaining Council Dispute
Resolution
•BC have the same dispute resolution
functions and jurisdiction as the CCMA.

•E.g. if dismissed in Clothing & Textile

sector employer must refer his/her
dismissal dispute to Clothing & Textile
sector Bargaining Council, not CCMA.
 “Matters of Mutual Interest” .
Vanachem Vanadium Products (Pty) Ltd v
NUMSA [2014] (LC)
Distinguishes recognised protest action from purely
political disputes.
Refers to any matter concerning the employment
relationship.
Every demand in CB does not have to be tested on
whether it advances the ‘common good’ of the
enterprise.
Court plays no role in evaluating the merits of the
demands in CB (...National Lotteries (2014) 35 ILJ
1885 (CC)).
“Matter of Mutual Interest”National
Lotteries (2014) (CC)
CC stated clearly that the courts have no
business passing judgment on the legitimacy of
the demands made during the process of
collective bargaining, provided demands are
not unlawful, do not require the other party to
perform unlawful acts.
 Rights Dispute
Rights disputes concerns an alleged failure to
apply rights that already exists.
A breach of a statutory or contractual right that
already exists.
Also refers to disputes for which the legislation
or other law prescribes final resolution through
arbitration.
 Rights Dispute
Rights disputes must be resolved/adjudicated
via arbitration by the CCMA or Bargaining
Council or litigation in the Labour Court or
other judicial forum (e.g. Equality court)
 An interest Dispute
•A dispute of interest is one where the party seeks
the creation of new rights.
•The EE seeks benefits and terms and conditions
that do not already exist in legislation or contract.
•Also includes dispute over an issue for which
legislation or contract does not prescribe/dictate
final solution through arbitration or Labour court.
•Creating a new right by reconciling conflicting
economic interests.
 An Interest Dispute
Legislature only provides for conciliation of
interest disputes, through CCMA or BC.
Legislature does not provide or require the
dispute to be finally resolved through
arbitration at CCMA or BC or litigation in LC.
The only way to resolve it, after conciliation,
is through strike, lockout or settlement.
In general if ER does not give workers what
they want they can go on strike.
 Dispute of Interest v Dispute of Right
CB aims to regulate disputes of interest – but
LRA does not dictate which issues.
When a party claims a benefit to which it is not
entitled in law which the other party is not
prepared to give – Dispute of Interest.
When the parties cannot agree whether one of
them is legally entitled to the benefit claimed
or to resist the right infringed – Dispute of
Right.
 Collective Bargaining in
Practice
•Where no consensus is reached a deadlock is
declared.
•TU may refer the matter to CCMA for conciliation
(mediation with the aim of facilitating agreement).
•If mediation fails CCMA issues a certificate of non-
resolution and then the TU (representing EEs) may
issue a notice to strike.
•Strike can commence no earlier than 48 hrs later.
 Collective Bargaining in
Practice
•Workers withhold labour during strike.
•LRA allows them to gather outside ER’s
premises:
To persuade other workers to join them
To dissuade clients or students from
supporting ER during the strike – this is
called a picket
 Collective Bargaining in
Practice
•ER too may refer a dispute to the CCMA
where workers refuse to accept its demands
and a deadlock has been reached.
•If CCMA mediation fails to yield agreement.
•ER can issue a lock-out notice and start the
lock-out no earlier than 48 hours later.
 Collective Agreements - s 213
“A written agreement concerning terms
and conditions of employment or any
other matter of mutual interest concluded
by one or more registered trade unions on
the one hand and, on the other hand, one
or more employers or registered
employers organisations”
 Valid Collective Agreement
•Written – signed or unsigned (depending on
the conditions for validity set out by parties).
•Between registered Union/s and ER/s (ER
orgs).
•Contains parties offers and acceptance of each
other’s offers/agreed compromise.
•Intent to create legal obligations must be clear.
•About employment Ts & Cs or ‘matters of
mutual interest’.
Who is bound by collective agreement? s 23
•Parties to the agreement – TUs, ERs or ER
orgs.
•Members of the parties to the agreement – TU
members and ER org members.
•Non-party EEs and ERs if they are identified
in the agreement – in compliance with ss 31 &
32.
 CA take precedence over individual employment contracts

Whether concluded before or after a CA employment contract

cannot permit:
• an EE to be paid less than prescribed in CA.
• permit an EE to be treated or given a benefit less favourable
than that prescribed in CA.
• waive the application of any provision of the CA.
• any less favourable provision in employment contract will be
invalid.
• conditions of the CA are incorporated into the EE’s
employment contract automatically.
 What if employment contract is more
favourable than collective agreement?
The more favourable terms apply because CA
provides for minimum terms – not actual terms
Retrenchments and Collective Agreements
•EE is bound by agreement with regard to his
retrenchment entered into with ER by his
union/majority union (or RTU coalition).
•Where a CA provides for ER to consult only with
majority RTU in retrenchment process, the ER is not
obliged to consult any other party (Maluleke & others
v Johnson Tiles; Aunde).
•S 189 favours a single level of consultation.
•If consultation culminates in CA non-party EEs are
bound by agreed retrenchment process.
Duration of Collective Agreements
•CA may be indefinite or of fixed term duration.
•Unless CA provides for automatic extension – in the
event of a new agreement not being in place at the cut-
off date – the agreement lapses.
•Disputes that arose during the currency of the CA
must continue to be resolved in terms of the
provisions of that CA.
•CA on employment contract Ts & Cs are usually fixed
term – annual intervals.
 Duration of Collective
Agreement
Where CA varied Ts & Cs of employment
terminates the individual contracts should
continue in their modified form.
 Cases on Compliance with Collective
Agreement
•Unilateral departure by the ER from disciplinary
procedure agreed by CA
• Ned v Dept of Social Services (2002) 22 ILJ 1039
(Arb) = not permitted as it would undermine
efficacy of CB and frustrate objects of LRA
• Highveld District Council (2003) 24 ILJ 517 (LAC)
= mere fact that procedure is agreed upon does not
make it fair. The fact that the agreed procedure was
not followed does not make proceedings unfair.
Must assess the fairness of procedure used.
 Compliance with CA
•County Fair Foods (2001) 22 ILJ 1103 (LAC) - EE
non-compliance with pre-strike procedures – “What
the legislature sought to achieve is to give the parties a
choice of either following the pre-strike procedure
contained in a CA or following the statutory procedure
in s 64(1). Compliance with either procedure suffices
to confer on EEs the right to strike”.
•In general CAs must be adhered to.
•The decision suggests that a party may choose to
ignore CA procedure whenever an alternative
statutory procedure exists.
 Disputes about collective agreements
s 24
Disputes about
• non-compliance with a collective agreement
• validity or existence of a CA
• interpretation and application of a CA
• rectification (amendment) of a valid CA
give rise to disputes of right which must be
resolved through conciliation and arbitration
Disputes about collective agreements - s 24
Non-compliance must be referred to:
• Conciliation
• Arbitration or
• LC for an order declaring the other
party to be in contempt of court