21. Individual Trade Union Rights

2018 ◽  
Author(s):  
Astra Emir
Keyword(s):  
Trade Union ◽  
Union Membership ◽  
Legal Decisions ◽  
Labour Relations ◽  
Potential Employer ◽  
Industrial Action ◽  
The Right

This chapter considers the rights of an individual in respect of his trade union membership and/or non-membership and remedies for breach of those right. These rights exist vis-à-vis a trade union or against an actual or potential employer. They include the right not to be excluded from a union; not to be unjustifiably disciplined; right to resign; not to be expelled; to have a ballot before industrial action; and time off work for trade union duties. The relevant statutory provisions are contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), which has been amended by subsequent legislation, and reference will also be made to a number of legal decisions.

21. Individual Trade Union Rights

2020 ◽  
pp. 537-562
Author(s):  
Astra Emir
Keyword(s):  
Trade Union ◽  
Union Membership ◽  
Legal Decisions ◽  
Labour Relations ◽  
Potential Employer ◽  
Industrial Action ◽  
The Right

This chapter considers the rights of an individual in respect of his trade union membership and/or non-membership and remedies for breach of those rights. These rights exist vis-à-vis a trade union or against an actual or potential employer. They include the right not to be excluded from a union; the right not to be unjustifiably disciplined; the right to resign; the right not to be expelled; the right to have a ballot before industrial action; and the right to take time off work for trade union duties. The relevant statutory provisions are contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), which has been amended by subsequent legislation, and reference will also be made to a number of legal decisions.

scholarly journals A PERSPECTIVE ON CLOSED SHOP AGREEMENTS THROUGH CORRELATIVE RIGHTS

2009 ◽  
Author(s):  
Jan Adriaan Norval
Keyword(s):  
Trade Union ◽  
Union Membership ◽  
Trade Unions ◽  
Political Rights ◽  
Freedom Of Association ◽  
Union Security ◽  
Labour Relations ◽  
Collective Agreements ◽  
Generic Term ◽  
The Right

Section 26 of the Labour Relations Act gives employers and employers’ organisations the power to conclude closed shop agreements through collective agreements with representative trade unions. The closed shop agreement is known as a union security agreement which has been defined as: [a] generic term for an agreement between an employer and a union or unions in terms of which union membership or, alternatively, payment of union subscription is a condition of employment for all employees. Therefore employees are forced to join the representative trade union subject to the conditions being met in section 26(3) of the Labour Relations Act. This has resulted in a lot of debate on whether closed shop agreements are violating the right to freedom of association, or simply limiting it. This article takes the debate further by not only looking at the right to associate, but also looking at this right as a correlative right because ‘freedom of association buttresses and makes good the promise of a variety of other rights.’ Rights such as labour relations rights and political rights rely on the right to associate. Their dependence on the right to associate means that they have to be looked at when determining if closed shop agreements violate or limit the right to associate.

16. Wrongful Dismissal

2018 ◽  
Author(s):  
Astra Emir
Keyword(s):  
Trade Union ◽  
Industrial Relations ◽  
Employment Law ◽  
Employment Protection ◽  
Labour Relations ◽  
The Law ◽  
The Right ◽  
Employment Rights ◽  
Wrongful Dismissal

Under the law which existed prior to 1971 an employer was entitled to dismiss an employee for any reason or no reason at all. In 1971 the Industrial Relations Act created the right for many employees not to be unfairly dismissed, and though that Act was repealed, the relevant provisions were substantially re-enacted in the Trade Union and Labour Relations Act 1974, and further changes were made by the Employment Protection Act 1975. The Employment Rights Act 1996 (as amended) contains most of the relevant statutory provisions currently in force. This chapter discusses the ways in which wrongful dismissal may occur; collateral contracts; summary dismissal; and employment law remedies.

scholarly journals DETERMINING THE THRESHOLD FOR ORGANIZATIONAL RIGHTS: THE LEGAL QUAGMIRE FACING MINORITY UNIONS RESOLVED – South African Post Office v Commissioner Nowosenetz No (2013) 2 BLLR 216 (LC)

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Clarence Tshoose
Keyword(s):  
Collective Bargaining ◽  
South African ◽  
Trade Union ◽  
Trade Unions ◽  
Post Office ◽  
Labour Relations ◽  
Industry Level ◽  
Pluralistic Approach ◽  
The Right ◽  
Conditions Of Employment

The issue of organizational rights facing minority unions has been a quagmire since the advent of the Labour Relations Act 66 of 1995(hereinafter “the LRA”). This quagmire exists, notwithstanding the fact that the Constitution affords every trade union the right to engage in collective bargaining (s 23 of the Constitution, 1996). The acquisition of organizational rights by trade unions plays a crucial rolein as far as collective bargaining is concerned. It is through collective bargaining that unions are able to negotiate with employers regarding the terms and conditions of employment. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the industry level. Chapter III of the LRA regulates collective bargaining. Whereas this chapterostensibly promotes a pluralistic approach to organizational rights it is unequivocally biased towards majoritarianism. This is the case despite minority trade unions fulfilling an important role in the current labour system especially when it comes to the balance of powerin the employment arena. In light of the above, the legal quagmire faced by the minority unions in the quest for acquiring organisation rights in terms of the relevant provisions of the LRA is clearly illustrated by the decision in South African Post Office v Commissioner Nowosenetz No ((2013) 2 BLLR 216 (LC) (hereinafter “ the South African Post Office case”)).

scholarly journals The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective

2017 ◽  
Vol 16 (4) ◽  
pp. 284
Author(s):  
Johan Kruger ◽  
Clarence Itumeleng Tshoose
Keyword(s):  
Collective Bargaining ◽  
South African ◽  
Trade Union ◽  
Trade Unions ◽  
Freedom Of Association ◽  
Labour Relations ◽  
Labour Standards ◽  
International Labour Standards ◽  
The Right ◽  
The Impact

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation. The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level.  It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.

scholarly journals The tentacles of majoritarianism: How far can they reach into retrenchment?

Obiter ◽  
2021 ◽  
Vol 41 (3) ◽  
pp. 483-503
Author(s):  
Rochelle Le Roux
Keyword(s):  
Trade Union ◽  
Collective Agreement ◽  
Labour Relations ◽  
The Right

Majoritarianism enables a trade union with a majority in the workplace to prevail over minority unions and their members as well as non-unionised employees and to limit some of the minority’s rights, including the right to strike. This article revisits the basic tenets of majoritarianism and calls for a more nuanced distinction between legislative provisions giving special privileges to majority unions and those provisions that enable majority unions to prevail over minority unions. Ultimately, the focus of the article is on the interface between majoritarianism and retrenchment. While it argues that there is legitimate scope for a collective agreement concluded after retrenchment consultations to be extended to the members of minority unions, the article expresses reservations whether a collective agreement regarding the identity of consulting parties in the case of retrenchment can similarly be extended. Nonetheless, the article concedes that the model of majoritarianism informing the Labour Relations Act (LRA) possibly lacks the subtlety to accommodate this distinction.

16. Wrongful Dismissal

2020 ◽  
pp. 390-401
Author(s):  
Astra Emir
Keyword(s):  
Trade Union ◽  
Industrial Relations ◽  
Employment Law ◽  
Employment Protection ◽  
Labour Relations ◽  
The Law ◽  
The Right ◽  
Employment Rights ◽  
Wrongful Dismissal

Under the law which existed prior to 1971, an employer was entitled to dismiss an employee for any reason or no reason at all. In 1971 the Industrial Relations Act created the right for many employees not to be unfairly dismissed, and though that Act was repealed, the relevant provisions were substantially re-enacted in the Trade Union and Labour Relations Act 1974, and further changes were made by the Employment Protection Act 1975. The Employment Rights Act 1996 (as amended) contains most of the relevant statutory provisions currently in force. This chapter discusses the ways in which wrongful dismissal may occur; collateral contracts; summary dismissal; and employment law remedies.

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