Freedom to Join and Form a Union
The South African Constitution and labour laws provide for freedom of association and allow workers and employers to join and form unions. This right is regulated by the Labour Relations Act.
In accordance with the BCEA, a trade union is an association of workers whose principal purpose is to regulate relations between workers and employers, including any employers' organizations.
Every member of a trade union has a right to participate in its lawful activities; to participate in the election of any of its office-bearers, officials or trade union representatives; to stand for election and be eligible for appointment as an office bearer or official and, if elected or appointed, to hold office; and to stand for election and be eligible for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in terms of this Act or any collective agreement. Trade unions may draw up their own statutes and administrative regulations, as long as these are not contrary to laws in effect. Unions have the right to participate in forming and joining a federation of trade unions; and to affiliate and participate in the affairs of any international worker's organisation or international employers' organisation or the International Labour Organisation, and contribute to, or receive financial assistance from, those organisations.
The unions must get registered with the Ministry by filing their statutes and rules; a prescribed form (properly completed); and any further information required by the Registrar. A trade union is registered if the Registrar is satisfied that the organisation has fulfilled all the requirements and issues a registration certificate to the organization. The registrar also sends the certificate and a certified copy of the registered constitution to the applicant. Filing of a copy of resolution and a certificate signed by its Secretary stating that the resolution complies with its constitution has to be done again in case of any change in statutes and administration.
An employer is not allowed to interfere in a trade union's affairs. An employer may deduct union dues from the wages of the members only after their written consent. Discriminatory behavior is prohibited for the employer on the basis of union affiliation or participation in union activities.
Source: §23(1-4) of the Constitution of the Republic of South Africa 1996 (last amended in 2012); §4-22 & 95-101 of the Labour Relations Act No. 66 of 1995 (last amended in 2014)
Freedom of Collective Bargaining
The right to collective bargaining is recognized by the Constitution and regulated by the Labour Relations Act. The law defines collective bargaining as a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand by one or more employers; one or more registered employers' organisations; or one or more employers and one or more registered employers' organisation. Bargaining councils are formed by registered trade unions and employers’ organisations to deal with collective agreements, attempt to solve labour disputes, and make proposals on labour policies and laws. They may also manage pension funds, sick pay, unemployment and training schemes, and other such benefits for their members.
A collective bargaining agreement is a legally enforceable instrument, which generally lasts as long as each party's bargaining cycle. However, it could also be a long-lasting agreement, or one which is terminated after reasonable notice by either party.
National Economic Development and Labour Council (NEDLAC), constituted in 1994 under a law, is classified into four chambers, namely: a public finance and monetary policy chamber; a trade and industry chamber; a labour market chamber; and a development chamber. It consists of members who represent organised business, organised labour, organisations of community and development interests; and the members who represent the State.
NEDLAC considers policies and issues based upon requests tabled by the government or the NEDLAC constituencies in a given time period. NEDLAC creates a report that is then forwarded to the Minister of Labour and any other relevant Ministers. Government departments are bound, as parties of NEDLAC, to accurately represent the agreements that were reached at NEDLAC in the drafts they put before Parliament.
The Council conducts the necessary investigations, surveys and analysis of social and economic affairs; stays current with international developments on economic and social issues; evaluates the effectiveness of legislation and policy on economic and social issues; conducts research on social and economic policy, and works in cooperation with relevant partners (State, statutory bodies, programmes, forums, and non-governmental organizations) in formulation and implementation of social and economic policy. It presents its deliberations to Parliament in the form of a report.
Source: § 23(5) of the Constitution of the Republic of South Africa 1996 (last amended in 2012); §11-30 of the Labour Relations Act No. 66 of 1995 (last amended in 2014)
Right to Strike
The right to strike is provided under the Constitution and is regulated under the Labour Relations Act. South African law does not place much restriction on the right to strike.
Compulsory recourse to arbitration, long and complex conciliation and mediation procedures prior to strike actions generally restrict the right to strike. There is a compulsory 30-day mediation period before lawful strike action may be taken. Members of a union must inform the employer, in writing, at least forty eight hours prior to their intention to strike. Notice is given to the relevant council if a dispute relates to a collective agreement to be concluded in a council; or to the relevant employer's organisation if an employer is a member of an employer's organisation that is a party to the dispute. Notice is given to the opposite party at least seven days prior to the commencement of the strike where the State is the employer.
Striking is prohibited for workers engaged in essential services or maintenance services. Striking is also prohibited for workers bound by an agreement that requires disputed issues to be referred to arbitration; or bound by a collective agreement or an arbitration award that regulates the disputes in question; or the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act or any other employment law.
A trade union may call a secondary strike in support of a lawful strike (primary strike) if seven days notice of the commencement of the secondary strike has been given to the secondary employer. The secondary strike may pressurize the employer to resolve the dispute that gives rise to a primary strike.
Employers also have the right to lockout workers. This right is subject to the same rules and restrictions as the right to strike.
In a protected strike or lockout workers or employees are guaranteed immunity from the reaches of the civil law i.e. they do not constitute a breach of contract. An employer is not obliged to remunerate an employee for services not rendered during a strike and workers are protected from dismissal.
In an unprotected strike or lockout, the affected party can approach the Labour Court for an interdict or order restraining a strike or lockout. The Labour Court can also order the payment of just and equitable compensation in the circumstances. Participation in an unprotected strike may constitute a fair reason for dismissal.
Picketing is allowed to registered trade union members and supporters for the purpose of peaceful strike. Picketing is authorized in any place to which the public has access but outside the premises of an employer; or with the permission of the employer, inside the employer‘s premises.
Source: § 23(2) of the Constitution of the Republic of South Africa 1996 (last amended in 2012); § 64-77 of the Labour Relations Act No. 66 of 1995 (last amended in 2014)
Regulations on Trade Unions
Constitution of the Republic of South Africa, 1996
Labour Relations Act 66 of 1995, last amended in 2002