There is no ‘duty to bargain’ nor to ‘recognise’ a trade union in South Africa. Interest disputes concerning matters such as wages, terms and conditions of employment and trade union recognition are resolved by a ‘power-play’ and not by arbitration or adjudication. But to assist newly established or weak trade unions to gain a foothold in a workplace, the LRA provides 5 ‘organisational’ rights. Employers who refuse to grant these rights can be compelled to do so by the CCMA. In other words, trade unions have the option to strike or to refer such disputes to arbitration.

Trade Union Recognition

Employers can recognise trade unions for different purposes. Registered trade unions that are ‘sufficiently representative’ of employees in a workplace will usually be granted rights of access, check-offs and time-off for training. Such trade union recognition does not imply any right to bargain on behalf of the trade union members, let alone any other employees in the workplace.

When a registered trade union represents the majority of employees in the workplace, there are usually additional demands for ‘trade union representatives’ [TUR] inside the workplace and for relevant information. Once again, apart from the right to strike to enforce the rights, the registered trade union may seek a binding award from the CCMA. For some strange reason the LRA seems to prevent those trade unions for striking over information.

But there is no provision of the LRA that forces employers to ‘recognise’ any trade union as a bargaining agent. Protected strike action is needed.

Employers may enter into collective agreements with registered trade unions representing the majority of employees in a workplace. The LRA allows such agreements to be ‘extended’ to cover all the employees in that workplace, subject to certain conditions.

The LRA even countenances ‘agency’ and ‘closed-shop’ collective agreements. In such circumstances non-members of the registered trade union may be forced to contribute to the funds of the trade union against their will. So much for ‘freedom of disassociation’.

Business Day was the first to publish an article Amcu wants ‘majority status’ at Lonmin by Natasha Marrian & Allan Seccombe.

Article extracts

THE Association of Mineworkers and Construction Union (Amcu) may declare a dispute with Lonmin if talks over a recognition agreement later this week fail to meet their expectations, Amcu president Joseph Mathunjwa said on Tuesday.

Two Lonmin shafts — Saffy and Newman — were shut down on Tuesday after a group of workers aligned to Amcu demanded the closure of the National Union of Mineworkers (NUM) office at the company’s premises in Marikana.

. . . .

Declining membership of the NUM led to the union losing its recognition rights at platinum mines in the North West, including at Impala Platinum and Lonmin.

Mr Mathunjwa said Lonmin management was delaying in giving Amcu the status of a majority union. Instead, the company was leaning toward an agreement in which all unions, including the NUM, were accommodated. Lonmin is engaged in talks with Amcu, the NUM and other unions about a recognition agreement.

Lonmin wants to move away from the “winner takes all” model that was in place when the NUM was the dominant union and wants a more inclusive recognition agreement to avoid potential flare-ups of violence in the future. Amcu is opposing the proposal.

Amcu has more than 50% representation among Lonmin’s 28,000-strong workforce and the NUM has dropped to about 30%.

. . . .

“We’ve been talking to Amcu and the NUM.   What’s positive about today is that it was calm. There was no violence or aggression.”