Author – Zinhle Mavuso
SACOSWU received a proverbial seat at the (bargaining) table when the Constitutional Court ruled that minority unions do not have to meet the membership requirements set in collective agreements between majority unions and employers in order to have the right to organise in the workplace.
The case of Police and Prisons Civil Rights Union v South African Correctional Services Worker’s Union and Others [2018] ZACC 24 explored the question of whether a minority union had the right to acquire organisational rights even though a majority union had a pre-existing collective agreement with the employer.
The organisational rights on the menu included: (1) union access to the workplace (2) leave for union activities (3) access to stop-order facilities for union subscriptions (4) use of facilities and the right to elect shop stewards.
Let’s dig in…
For starters…
The Police and Prisons Civil Rights Union (POPCRU) signed an agreement with the Department of Correctional Services (DCS) in terms of section 18 of the Labour Relations Act (LRA) which gives employers and majority trade unions the right to determine the threshold of representatives that is required for organisational rights to be conferred.
In terms of their agreement, a minimum requirement of 9,000 members had to be met in order for trade unions to be part of the Bargaining Council and to acquire organisational rights. SACOSWU, a minority union possessed about 1,500 members. However, when SACOSWU approached the DCS to be granted organisational rights, the request was granted.
The “main” issues…
There were two issues for the Constitutional Court to decide. The first issue was whether it was still relevant for the matter to be decided as the threshold agreement in question had expired. The Court held that despite the expiration of the agreement, it was still in the interests of justice to hear the matter. This was because the decision would have practical consequences in future for minority unions who would like to exercise their rights.
The second issue was whether an agreement concluded in terms of Section 18 of the Labour Relations Act prohibited minority unions from accessing organisational rights.
The Court found that section 18 of the LRA had to be interpreted in a manner that would give effect to the spirit and letter of the Bill of Rights. This is because it has an effect on the rights guaranteed in the Constitution relating to the formation of trade unions and the right to engage in collective bargaining.
The Court held that granting the minority union organisational rights did not violate the collective agreement in place and that the Constitution granted organisational rights to all trade unions, regardless of whether they were majority or minority unions. This right could therefore not be limited by way of agreement between a majority union and employer.
Takeaways…
As a result, the Court held that Section 18 of the LRA does not prevent minority trade unions from entering into collective bargaining agreements even where a threshold requirement has been agreed upon between a majority trade union and an employer. To prevent minority unions from exercising their constitutionally guaranteed rights would constitute an unjustifiable limitation, the Court said.
On a proper reading of the LRA, the Court said, minority unions could acquire organisational rights in three ways:
First, they would acquire these rights automatically if they met the threshold set out in the Section 18 agreement between the employer and the majority union.
Second, if they did not meet the threshold requirement, they could enter into a separate agreement with the employer for the acquisition of the rights.
Third, in terms of Section 21 of the LRA, they could refer the matter to an arbitrator who could determine if the minority union should acquire organisational rights.
This case is important because it enforces the principle that constitutionally guaranteed rights can only be limited in a constitutionally justifiable way and not by means of private agreements.
The decision also means that workers are free to join a trade union of their choice, even if it’s a minority union, and still be able to exercise their constitutionally guaranteed bargaining rights.
