by Michael Bagraim
Workers in South Africa are finding themselves in an incredibly beleaguered environment. Retrenchments are at an all-time high and many employees’ rights are being flouted.
Unfortunately, the very institutions that need to guard employees’ rights are being hollowed out by our government. The Bargaining Councils are generally under pressure and don’t have the facilities and wherewithal to efficiently and effectively handle disputes that are coming in daily.
The Commission for Conciliation, Mediation and Arbitration (CCMA) is suffering the same pressure, and they have had to ask all their part-time commissioners, who do over 60% of their cases, to stay at home as they could not afford to pay for them. All this means workers’ rights as contained in our Constitution and our labour legislation are not being enforced, adjudicated and respected.
It should therefore be obvious that employees should look to their rights of freedom of association and in particular the freedom to join trade unions and/or form trade unions.
Every employee has a right to freedom of association and has the right to participate in forming a trade union or federation of trade unions. Furthermore, their right to join a trade union is subject to that trade union’s constitution.
Trade unions in the scheme of things are an integral part of our labour relations system. Trade unions can speak on behalf of their members and protect employees and also a person seeking employment.
On the other side of the coin, employers can join employers’ organisations who would then protect them in disputes in the labour law field.
In the current underemployment environment, trade unions are vital for the protection of employees’ rights. A representative trade union, meaning a registered trade union, has certain rights in terms of the Labour Relations Act. The trade unions have access to the workplace firstly to recruit members and thereafter to communicate with their own members.
The trade union members may authorise the employer in writing to deduct subscriptions or levies payable to that union from the employees’ wages. The employer who receives this authorisation must begin making authorised deductions as soon as possible and must remit the amount to the union not later than the 15th day of the month following the dates each deduction was made.
The union office bearers or representatives are entitled to take reasonable leave during working hours for performing the functions of that office. The union officials can demand certain information from the employer and are entitled to involve themselves in consulting and or bargaining with the employer.
The real value of a trade union in today’s environment would be that it would speak up on behalf of employees who are being subjected to possible retrenchment (dismissal for operational requirements).
A registered trade union may notify an employer in writing that it seeks to exercise one or more rights referred by the Labour Relations Act. Unions may conclude a collective agreement with the employer and if the employer does not concede to such an agreement they may refer a dispute in writing to the CCMA.
There may be certain disputes about the organisational rights of the trade unions and these disputes can be referred likewise to the commission. Once a collective agreement has been signed it will bind all the parties to that agreement and all the members of each party.
The collective agreement between the trade union and the employer will bind for the whole period of the collective agreement. Often, we see agreements entered into for whole industries. These are called closed shop agreements which would require all employees covered by the agreement to be members of the trade union.
Often trade unions in an industry get together to speak to the various employers in that industry to form bargaining councils. These councils constitute a forum whereby the unions and the employers can conclude collective agreements and enforce these collective agreements. They try to prevent and resolve labour disputes. More often than not, members of these trade unions find their rights are well protected for a small monthly or weekly contribution. To engage with an attorney on an individual basis, that individual would spend large sums.
We have a robust and active trade union movement in South Africa today. Unions are a vital cog in the environment and perform a necessary function by ensuring that workers’ rights are protected.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.
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