We come from an unfortunate and fractured history, where trade unions were to a large degree downtrodden and discriminated against. Today the labour movement plays an important role in almost every workplace in the economy. Collective bargaining under the Labour Relations Act has been tested on hundreds of occasions in our arbitrations and the Labour Court. There are many regulatory mechanisms and structures, and our system encourages different types of centralised bargaining at different levels. Recently the courts endorsed the recognition and the rights of minority unions, and we are expecting to see more and more multi-union activity on the shop floor. At a national level, the National Economic Development and Labour Council (Nedlac) has been successful, and brought labour, business, the government and community representatives together. The whole idea is the ensure that the legislation is operative and usable across the board. At a lower level, industries have organised themselves into bargaining councils and the labour minister has been obliged, through legislation, to register these councils if they are representative.
At the lowest level, our legislation has recognised workplace forums, which are sometimes formed at individual workplaces, so that there can be joint bargaining and negotiation on the shop floor.
The joint decision-making encouraged by the legislation is, more often than, not regulated by collective agreements entered into between either the employees or their representative trade union and the employer.
These decision-making bodies often fashion disciplinary rules and procedures, and they regulate workplace conduct from recruitment to dismissal.
These negotiations are conducive to better management, and certainly help to ensure that no discrimination or unfair labour practices arise at the workplace. The relationship between the negotiating parties is often formalised in well-structured agreements, ensuring that disputes are carefully managed before they reach the arbitration stage.
Every employee obviously has the right to freedom of association and can join any union of his/her choice. Likewise, employers have similar rights, enabling them to join employer organisations. It is recommended that the joining of either a trade union or employer organisation should only take place once these organisations are registered through the Department of Labour. Often employees feel that they are discriminated against when they join unions or are discouraged from joining in the first place. This behaviour is completely outlawed and should be reported, either directly to the trade union or the Department of Labour.
Individuals often feel that they don’t have the power to challenge their employers and they don’t have the wherewithal to engage with legal representation. There are many other benefits in joining unions other than representation, such as training and advice. There are examples of unions failing their members, and there have been court cases where members have challenged their unions in the courts and claimed damages successfully against negligent behaviour as evidenced by those trade unions.
The unions themselves often join federations to enhance the ability to represent the workforce. These federations do, from time to time, come to the aid of individual unions which need to embark upon a power struggle. The unions have the ability to raise complaints, grievances and disputes, without exposing individuals, and also being able to pursue the rights of the individuals in the correct fora. Union officials are often trained, and have access to both information and advice from their head offices. The collective can access funding in cases where legal advice and representation are needed.
The unions should effectively bargain for better terms and conditions at the workplace and should also ensure that at least the minimum rights are protected. Members of unions should receive education from the unions as to what can be expected from them. The unions should act as some sort of insurance policy and lobbyist for the individual members.
Any diminution of the individual rights under the Basic Conditions of Employment Act and the Labour Relations Act should immediately be reported to the unions and taken up.
If this is not done, the individual member should raise the issue with his/her shop steward. Cases do occur where unions are negligent in enforcing members’ rights. These would then have to be enforced through the Department of Labour or bargaining councils. Unions often enter into talks with the management to produce recognition agreements, which would regulate the relationship for the future.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media