In industrial disputes there are often more than one Union representing employees in a given place of work. Circumstances may arise where more than one Union is vying for control with another and acting as a hindrance to conclusion of a collective agreement between the employer and a Union. In the event that a collective agreement is concluded, which Union will be bound into the agreement with the employer and will such an agreement be binding on all members of the workforce?
Where a trade Union can prove that they are the majority Union in the workplace they will be entitled to the organisational rights provided by Chapter Three of the Labour Relations Act (LRA).
S23(1)(d) of the LRA governs situations where multiple unions have a presence in the workplace, providing that a collective agreement is binding on employees who are not members of a registered trade union if:
- the employees are identified in the agreement;
- the agreement expressly binds the employees; and
- that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.
In the case of POPCRU v Ledwaba NO and Others (JR 636/2012) [2013] ZALCJHB 224 the court found that a majority union and employers are able to curtail and regulate the rights of minority unions to be granted organisational rights within the workplace.
The above case found that the structure of the LRA indicates that preference is given to majority unions and where a majority union entered into a collective agreement with an employers that regulates organisational rights and prescribes minimum thresholds for organisational rights that are binding on non-parties, then the minority union will be precluded from entering into a collective agreement with the employer.
The minority union in these circumstances will be required to comply with the provisions of the majority trade union’s collective agreement.
In the event that there are two conflicting agreements in place, the majority Union’s collective agreement will take preference.
In the recent case of Association Of Mineworkers And Construction Union and Others v Chamber Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and Others (J99/14) [2014] ZALCJHB 223, the Chamber of Mines entered into a collective agreement with the National Union of Mineworkers (NUM) which had been rejected by the Association of Mineworkers and Construction Union (AMCU).
It was found that in terms of s23(1)(d) a majority trade union can enter into a collective agreement the terms of which will then be binding on any minority union in the workplace, so long as their members are the majority of the employee’s employed in the workplace of the particular employer.
In negotiating Labour disputes where more than one Union is present in the workplace, the starting point for employers is to determine which Union has majority representation within the organisation, by determining the number of employees in one’s employment and what proportion of those employees are active members affiliated to the respective Unions. Once it has been established who the majority Union is, negotiations should be initiated with the representatives of the majority Union. The terms of a collective agreement reached with the majority union will be binding on all employees within the workplace.
Adam Oken
