Académique Documents
Professionnel Documents
Culture Documents
3. Date of summary
February 2005
4. Purpose
To change the law governing labour relations and for that purpose –
5. Overview
The Act does not apply to members of:
- the National Defence Force
- the National Intelligence Agency
- the South African Secret Service
For the purposes of this overview, the main sections will be dealt with under their
respective headings below:
1
Freedom of Association
Every employee has the right:
The members of the trade union similarly have the right to participate in lawful activities,
elect office bearers, officials or trade union representatives, and if elected, to carry out the
functions of a trade union representative in terms of the Act or any collective agreement.
Protection of employees and persons seeking employment: No person may discriminate
against an employee for exercising a right conferred by the Act.
Without limiting the general protection above, no person may do, or threaten to do, any of
the following:
Rights of Trade Unions and Employers’ Organisations: Rights are granted to allow for, inter
alia, the determination of their own constitutions and to elect their office bearers, officials and
representatives.
Collective Bargaining
Trade union representativeness: A “representative trade union” is defined in the Act as
meaning 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 the workplace.
Such a trade union has the right of access to a workplace. This entitles the union to enter the
premises in order to recruit members or communicate with them and also to hold meetings
and to vote at the premises outside working hours. These rights 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.
A representative trade union may also authorise the employer in writing to deduct
subscriptions or levies payable to that trade union from the employee’s wages. Various terms
and conditions are applicable in this regard. The above rights are also extended to a union
2
which, although it has not got majority representation, nonetheless has
‘sufficient’representation in a workplace. A workplace is defined in the Act and does not
necessarily constitute one work site.
The minister, in consultation with NEDLAC, may publish guidelines to assist the
Registrar in determining whether a trade union or employers’organisation is genuine.
Thresholds of representativeness may be negotiated by unions whose members are in the
majority of the employees employed by the employer in a workplace, or the parties to a
Bargaining Council, may conclude collective agreements establishing a threshold of
representativeness in respect of one or more of the organisational rights. Such agreements will
not be binding unless the thresholds are applied equally to any registered union seeking
organsational rights.
A collective agreement may bind employees who are not members of the registered trade
union in the workplace.
The Act makes provision for agency shop and closed shop agreements subject to certain
criteria. Monies deducted in terms of these agreements must be used for the pursuit or
protection of the socio-economic interests of employees.
Bargaining Councils:
One or more registered trade unions and one or more employers’organisations may establish a
bargaining council for a sector and area.
The powers and functions of a bargaining council are set out in the Act and include inter alia,
the power to conclude collective agreements and perform dispute resolution functions.
Statutory Councils:
Such councils may be formed with thirty percent representivity within the sector and area. It
has less powers and functions than that of a bargaining council. A statutory council that is not
sufficiently representative within its registered scope may submit a collective agreement to the
Minister who must treat the agreement as a recommendation made by the Employment
Conditions Commission in order to facilitate the Promulgation of a Sectoral Determination.
At least 48 hours’ notice (in writing) must be given to the employer of a proposed strike,
unless:
- the issue in dispute relates to a collective agreement to be concluded in a council, in which
case notice must be given to the council;
- the employer is a member of an employer’s organisation that is party to the dispute, in
which case notice must be given to the employer’s organsation.
In the case of a proposed lock-out at least 48 hours notice (in writing) must be given to any
trade union that is party to the dispute, unless the dispute relates to a collective agreement to
be determined in a bargaining council, in which case the notice must be given to the council.
The Act sets out 5 instances when the above requirements would not apply, for example if it
were varied by a collective agreement.
3
If the issue in dispute concerns a refusal to bargain, an advisory award must have been made
before notice is given. The Act also sets out exactly what constitutes a refusal to bargain.
Secondary strikes:
A secondary strike is a strike that is in support of a strike by other employees against their
employer. Different notice periods are set down for secondary strikes and again the Act
prohibits such strikes in certain situations and if certain criteria are not fulfilled, for example,
the nature and extent of the secondary strike must be reasonable in relation to the possible
direct or indirect effect that it may have on the business of the primary employer.
Picketing:
A registered trade union may authorise a picket by its members and supporters for the
purposes of peacefully demonstrating in support of a protected strike and is also subject to
certain conditions.
Protest Action:
Employees who do not work in an essential or maintenance service have the right to take part
in protest action.
Workplace forums:
Such forums may be set up subject to certain requirements and have a wide range of functions
such as participative decision making with management on issues such as disciplinary codes
and procedures.
• to attempt to resolve, through conciliation, any dispute referred to it in terms of the Act;
• to arbitrate any dispute referred to it which remains unresolved if the Act requires
arbitration and any party to the dispute requests arbitration, or all the parties consent to
arbitration under the auspices of the Commission;
• to assist in the establishment of workplace forums;
• to compile and publish statistics concerning its activities.
4
The Commission also provides training and advice on a wide range of labour- related issues.
It may make rules to regulate itself on numerous issues set out in the Act. Arbitration awards
are final and binding may only be overturned on review to the Labour Court. (They may
however be varied or rescinded by the Commissioner under certain conditions.)
Section 185 provides that every employee has the right not to be :
The Act sets out no less than eight situations which would constitute a dismissal. It also
defines an automatically unfair dismissal and sets out various scenarios in this regard.
A dismissal may be deemed fair if the reason for the dismissal is based on the inherent
requirement of the particular job or, if the dismissal is based on age, the employee has reached
the normal or agreed retirement age for persons employed in that capacity.
In considering whether or not the reason for a dismissal was fair, or whether the dismissal was
in accordance with a fair procedure, account must be taken of any relevant code of good
practice issued in terms of the Act.
An employer may, with the consent of the employee, request a bargaining council, an
accredited agency or the CCMA to conduct a pre-dismissal arbitration into allegations about
the conduct or capacity of the employee.
5
to the economic, technical, structural, or similar issues of a business. The right to strike over
operational requirements dismissal is granted subject to certain conditions and scenarios.
6
6. Implications for Affected Parties
Employers have various rights and obligations, as do employees, whose collective and
individual rights are regulated by the Act. Amongst others, they are protected against
unfair labour practices and unfair dismissal.
Trade unions too, have rights granted in terms of this Act. However, conditions must
be fulfilled for the exercising of such rights and should this not be done, there are
again, consequences which flow from this.
The ultimate implication for parties is that fair labour practices must be practiced.
Liability
The main parties affected by this Act are employers, employees, trade unions, and
employer organisations.
Employers are obliged to follow the Act in order to avoid the penalties which flow
from it.
Risk
In particular, the dismissal sections can have the largest impact for employers. The
impact of non-compliance could range from industrial action to awards and judgments
with large financial consequences. Conversely, compliance with the Act could bring
industrial peace as well as the legal termination of wayward or incapacitated
employees. Employers have a duty to act fairly and consistently in the application of
discipline.
Costs
The most common cost for employers is in the form of compensation for unfair
dismissals which range from a maximum of twelve month’s remuneration for a
‘normal’ unfair dismissal, to twenty four months for an automatically unfair dismissal.