Collective Labour Law Tutorial Letter

LLW2602/501/3/2016
Tutorial Letter 501/3/2016
LLW2602
COLLECTIVE LABOUR LAW
Semesters 1 & 2
Department of Mercantile Law
IMPORTANT INFORMATION:
This tutorial letter contains important information

about your module.
Open Rubric
CONTENTS
This tutorial letter contains the following information:
1. LECTURERS
2. PRESCRIBED BOOK
3. OVERVIEW OF THE PRESCRIBED BOOK
4. STUDY SCHEDULE FOR THE MODULE
5. STUDY UNITS
1. LECTURERS
The following are your lecturers for 2016:
Mr M Mathiba (012) 429 2749 mathikm@unisa.ac.za

Adv M Mangammbi (012) 429 8395 mangamj@unisa.ac.za
Prof ME Manamela (012) 429 8490 manamme@unisa.ac.za
2. NEW PRESCRIBED BOOK
The prescribed book for this module is:
McGregor, M & Dekker, AH (eds). 2014. Labour law rules! 2nd edition. Siber Ink.
PLEASE NOTE: This is the updated version of the book and it contains all the relevant
recent amendments to labour legislation.
This is the same book that is prescribed for LLW2601. In this module, however, you will only
cover aspects of collective labour law.
You have to purchase the prescribed book and work through it with the help of this tutorial letter.
3. OVERVIEW OF THE PRESCRIBED BOOK
The prescribed book Labour law rules! consists of four parts, but you will only be required to
study the following two parts for this module:
1) Part I: Introduction to labour law

2) Part IV: Rules of collective bargaining
PLEASE NOTE: The cases in Tutorial Letter 101 also form part of the prescribed material.
Make sure that you obtain copies of these cases.
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PART I
INTRODUCTION TO LABOUR LAW
Labour law deals with the legal consequences of the employment relationship. It regulates both
the individual employment relationship and the collective employment relationship. The
individual employment relationship is concluded between one employer and one employee; the
collective relationship exists between one or more employers and more than one employee.
Employers may act collectively by way of employers’ organisations and employees may join
trade unions which represent them in the collective labour law arena.
It is important to understand that the contract of employment forms the basis of the relationship
between the employer and the employee; consequently, the principles of the law of contract
apply to this relationship. The law of contract assumes that the parties are in an equal
bargaining position. However, the employment contract is different because the employer is in a
stronger bargaining position and can to a large extent dictate the terms and conditions of
employment. Hence, the principles of the law of contract had to be supplemented by labour
laws designed to balance the interests of employees and employers and to ensure fairness in
the employment relationship.
Part I of the prescribed book consists of only chapter 1, which gives a brief historical
background to the South African labour law and contrasts it with the modern labour law. The
tripartite manner of currently making these laws and the scope of labour laws are discussed.
PART IV
RULES OF COLLECTIVE BARGAINING
With regard to matters that relate to the rights of employees, the so-called “rights issues”, the
Labour Relations Act 66 of 1995 (LRA) and other labour legislation dictate what employee rights
and duties are, and provide remedies to ensure fairness in the employment relationship. These
matters were dealt with in the module LLW2601. With regard to “interest issues” or “matters of
mutual interest” (that is, creating new terms and conditions of employment or changing
existing terms and conditions of employment), there is no legislation that specifically
regulates the situation. This is because these issues are best determined by the parties
themselves. A court, for example, cannot determine an annual increase for employees. It is in
this labour arena, which is regulated by collective labour law, that the power play between
employers and employees takes place.
The LRA recognises the importance of collective bargaining and supports the mechanism by
protecting employees’ and employers’ rights to form and join organisations of their choice and to
participate in the activities of those organisations. The LRA regulates the registration of these
organisations. It creates bargaining forums, guarantees the right to freedom of association, and
also regulates the right to freedom of association and organisational rights. Lastly, it regulates
industrial action for both employees and employers.
When you study Part IV of the prescribed book, it is important to understand that collective
labour law is not discussed as a phase of employment because it influences all the stages of
the employment relationship.
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Part IV consists of chapters 10 to 14. Chapter 10 deals with the foundations of collective labour
law, namely freedom of association, trade unions’ rights and employers’ rights. Chapter 11
deals with collective bargaining. Chapter 12 deals with workplace forums and their functions.
Chapter 13 covers strikes and lock-outs and chapter 14 covers pickets and protest action.
Please note that every part of the prescribed book starts with a summary where the legal
implications that are relevant to each employment stage are set out. Every chapter has a
detailed table of contents that will guide you through the chapter.
If you study Labour law rules! and follow the guidelines in this tutorial letter, you will do well in
your studies.
4. STUDY SCHEDULE FOR THE MODULE
WEEK SUBJECT STUDENT ACTIVITY TUTOR ACTIVITY

1 Orientation/introduction: Students familiarise The tutor must ensure that the
Learning about the myUnisa themselves with students are able to use appropriate
platform (Activity 1) myUnisa and how to resources for academic work,
log on. including information and
communication technology (e.g.
computers), and assess whether
students are able to log on to
myUnisa.
2 STUDY UNIT 1: General Students post The tutor must ensure that the
overview, freedom of
responses or students have an understanding of
association, trade unions’ comments on the text. the right to freedom of association,
rights and employers’ rights union security arrangements, the
Students must be able to purpose and types of organisational
demonstrate that they have rights, how organisational rights are
acquired a sound knowledge acquired, the level of representation
base and critical required for different rights and how
understanding of the following: disputes about organisational rights
 the right to freedom of are resolved.
association
 the impact of union security
arrangements on the right
to freedom of association
 the purpose of
organisational rights
 how organisational rights
are acquired
 the impact of
representation on the
entitlement to
 the resolution process for
disputes about
3 STUDY UNIT 2: Collective Students post The tutor must ensure that the
bargaining responses or students are able to demonstrate
Students must be able to comments on the text. that they have acquired a sound
demonstrate that they have a knowledge base and critical
sound knowledge understanding of what collective
bargaining entails.
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and understanding of the duty They must also have an

to bargain in terms of the understanding of bargaining agents,
following: the levels of bargaining, collective
 identifying the relevant agreements and the dispute
bargaining agents resolution role of bargaining
 bargaining levels in councils.
collective labour law
 collective agreements and
their effect on the
workplace
 disputes which a bargaining
council can resolve
4 Preparation for Assignment Students demonstrate The tutor must ensure that the
01 their skills (and students use appropriate resources
disposition) in using the to post their assignments and know
study material, tutorial how to answer multiple-choice
letters and study guide questions (MCQs).
to complete
assignments.
5 STUDY UNIT 3: Workplace Students post The tutor must ensure that the
forums responses or students understand how workplace
Students must be able to comments on the text. forums are established and how
demonstrate that they have a they function.
sound knowledge and
understanding of the
 establishment of workplace
forums
 functions of workplace
forums
6 ACTIVITY 1 Students must The tutor must monitor whether
Students must do a case demonstrate that they students understand the task at
study on freedom of can critically discuss a hand; the tutor can provide
association, organisational set of facts and apply guidelines.
rights and collective collective labour law
bargaining. principles.
7 Feedback on Assignment 01 Students ask the tutor The tutor must provide general and
and discussion of any other questions about their specific feedback on Assignment
matter relating to performance and 01.
assignments. general issues on
Assignment 01.
8 STUDY UNIT 4: Strikes and Students post The tutor must ensure that the
lock-outs responses or students understand the different
Students must be able to comments on the text. elements of the definitions of a
demonstrate that they have strike and a lock-out; the procedural
acquired a sound knowledge requirements for strikes and lock-
base and critical outs to be protected; and the
understanding of the following: limitations on the right to strike and
 definitions of a strike and a to lock out. They must also
lock-out understand the legal consequences
 procedural requirements for of both protected and unprotected
the protection of strikes and strikes and lock-outs.
lock-outs
 limitations on strikes and
lock-outs
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 consequences of protected
strikes and lock-outs
 consequences of
unprotected strikes and
lock-outs
9 STUDY UNIT 5: Picketing and Students post The tutor must ensure that the
protest action responses or students understand the elements
Students must be able to comments on the text. of and requirements for protected
demonstrate that they have pickets and protest action.
acquired a sound knowledge
base and critical understanding
of the following:
 the elements of and
requirements for a protected
picket
 picketing rules and where
pickets may take place
 the purpose of and
procedural requirements for
protest action
10 ACTIVITY 2 Students must The tutor must give the students
Students must complete a case demonstrate the guidelines/pointers to ensure that
study on strike action. ability to work they can present and communicate
independently for in an effective and professional
academic growth and manner.
development.
11 Preparation for Assignment 02 Students must The tutor must answer questions
demonstrate the that students have about their
ability to manage summative assessment.
learning tasks
independently for
academic growth and
development.
12 Revision Students must The tutor must summarise all the
demonstrate an important aspects of the various
understanding of all themes.
the aspects of the
learning areas.
13 Feedback on Assignment 02 Students must ask the The tutor provides general and
tutor questions about specific feedback on Assignment
their performance and 02.
general issues on
Assignment 02.
14 Examination preparation: Students must give The tutor must provide the students
Students must study all the suggestions and tips with information about the
themes in their study guide and on how to prepare for examination, and identify and
use assignments as a revision the examination and address problem areas.
tool. identify examination
coping techniques.
Examination format:
MCQs = 40 marks
Discussion questions = 40
marks
2-hour paper
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5. STUDY UNITS
STUDY UNIT 1
FREEDOM OF ASSOCIATION, TRADE UNIONS’ AND EMPLOYERS’ RIGHTS
1.1 WHAT IS THE STUDY UNIT ABOUT?

1.2 KEY CONCEPTS TO LOOK OUT FOR IN THE STUDY UNIT
1.3 PRESCRIBED MATERIAL
1.4 IMPORTANT ASPECTS FOR DISCUSSION
1.5 PRACTICAL QUESTIONS
1.6 AFRICANISATION AND LABOUR LAW
We suggest that you first read chapter 1 of the prescribed book, which will give you a general
overview of labour law in South Africa.
Then you should study chapter 10 of the prescribed book, along with the cases prescribed in
Tutorial Letter 101.
Freedom of association means that people have the right to associate with others in order to
defend and protect their common interests. In the workplace, freedom of association entails the
right of workers to form and join trade unions of their choice and to participate in their lawful
activities.
Freedom of association is one of the basic principles of labour law and this is reflected in
several International Labour Organization (ILO) conventions, the LRA and the Constitution.
Both employees and people seeking employment have this right, and an employer may not
infringe upon it. Employers also have the right to freedom of association.
There are basically five organisational rights and the LRA prescribes
 what level of representation is needed for a union to acquire these rights

 how the level of representation must be determined
 the processes for obtaining these rights, and
 the rights of minority trade unions with regard to organisational rights
The following concepts are important:
 freedom of association
 union security arrangements
 organisational rights
 representative trade union
 majority representation
 sufficient representation
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Chapter 10 of Labour law rules!
(a) Historical background to freedom of association and trade unionism in South Africa
Study paragraph 1 of chapter 10 of the prescribed book.
Trade unionism did not exist in South Africa for many years but with the discovery of minerals
and the development of mines in the late 19th century, it was introduced by mineworkers and
artisans who came from overseas (especially Britain) to work in the country’s mines. Trade
unions were first given statutory recognition by the Industrial Conciliation Act 11 of 1924, but
black workers were excluded from the system. Later, the Industrial Conciliation Act 28 of 1956
was passed, which dealt extensively with freedom of association and trade union rights. In
1977, the Wiehahn Commission made recommendations that brought about a number of far-
reaching changes in labour legislation (including granting the right to freedom of association to
all workers). Since South Africa became a democratic country, the right to freedom of
association is entrenched in the Constitution and given effect by the LRA.
(b) Freedom of association
Firstly, freedom of association is protected in terms of ILO conventions (Convention 87 of 1948

and Convention 98 of 1949). Secondly, this right is protected by the Constitution. Note that the
Constitution provides for two types of freedom of association: section 18 grants everyone the
right to freedom of association and section 23 grants freedom of association specifically to
workers, trade unions, employers and employers’ associations. Thirdly, the LRA gives practical
effect to this right. Freedom of association means the right to associate with others in order to
defend common interests. Employees form trade unions and employers form employers’
organisations in order to exercise this right. The LRA protects freedom of association for
employees, people seeking employment and employers.
Note that although the LRA does not apply to members of the South African National Defence
Force and the State Security Agency (which includes the National Intelligence Agency, the
South African Secret Service, the South African National Academy of Intelligence and Electronic
Communications Security [Pty] Ltd), their right to freedom of association is still protected by
section 23 of the Constitution. Managerial employees have a limited right to freedom of
association as they must balance their common law duty to act in good faith with their right to
freedom of association.
(c) Trade union security arrangements
Like any other right, the right to freedom of association may be limited. The Constitution and the
LRA provide for the limitation of this right by allowing union security arrangements in the form of
closed shop and agency shop agreements. The main difference between these two types of
agreements is that the agency shop agreement requires the employer to deduct an agreed
agency fee from the wages of employees who are identified in the agreement and who are not
members of the trade union, while the closed shop agreement requires all employees covered
by the agreement to be members of the trade union that is party to the agreement.
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Study more about the two types of agreements in paragraphs 3.2 and 3.3 of chapter 10 of the
prescribed book. Please note that only post-entry closed shop agreements are recognised
under the LRA.
(d) Organisational rights
(i) The purpose of organisational rights
Study paragraph 4.1 of chapter 10 of the prescribed book.
Organisational rights enable trade unions to function more effectively and build support in the workplace.
Organisational rights are only granted to registered trade unions that have a certain level of
representation in the workplace. The following table shows the five organisational rights and the level of
representation that a union must have, in terms of the LRA, to acquire them.
ORGANISATIONAL RIGHT MINIMUM LEVEL OF REPRESENTATION

Access premises of the employer Sufficient representation
Deduction of trade union membership Sufficient representation
fees
Election of shop stewards Majority representation
Leave for union activities Sufficient representation
Disclosure of information Majority representation
Note that a trade union that has majority representation in the workplace is in principle entitled to all
organisational rights. A sufficiently representative trade union will only enjoy certain rights. A majority
trade union represents at least 51% of all the employees in the workplace (see paragraph 4.4 of chapter
10 of the prescribed book). The LRA does not define what sufficiently representative is, but gives
guidelines (a union that represents approximately 30% of the employees in the workplace).
More information on these rights is provided in paragraphs 4.2 to 4.4 of chapter 10 of the prescribed
book.
(ii) The acquisition of organisational rights
Trade unions acquire organisational rights in the following ways:
METHOD NOTES
Collective agreement A registered trade union and an employer/employers’
organisation can conclude a collective agreement that
regulates organisational rights.
Membership of a bargaining council Any registered trade union that is a party to a
bargaining council automatically acquires the right to
access the workplace (s 12) and the deduction of trade
union subscriptions (s 13) in respect of all workplaces
that fall within the jurisdiction of the bargaining council.
Strike action A trade union, including a minority trade union, may
strike in support of a demand for organisational rights.
Section 21 procedure A registered trade union that is sufficiently
representative may acquire organisational rights
through the procedure outlined in section 21 (see
paragraph 4.5.4 of chapter 10 of the prescribed book).
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Remember that a union that exercises organisational rights in respect of employees of a
temporary employment service (TES) may do so at the workplace of the TES or that of the client
of the TES.
(iii) Disputes about organisational rights
Disputes about organisational rights may be referred to the CCMA in writing by any party to the
dispute.
(e) Relationship between a union and its members
The relationship between a trade union and its members is regulated by the union’s constitution,
which contains the necessary rules and procedures. For more information on the constitution of
trade unions, see paragraph 5 of chapter 10 of the prescribed book.
(f) Registration of unions
A trade union is an association of employees whose principal purpose is to regulate the

relations between employers, including employers’ organisations, and their employees. Note
that a trade union does not have to be registered in order to exist, but the LRA encourages
registration and therefore grants benefits to trade unions that register. The following are some of
the benefits of registration to trade unions:
 They can conclude collective agreements, including closed shop and agency shop
agreements.
 They can acquire organisational rights.
 They can become members of bargaining and statutory councils.
 They can establish workplace forums.
Question 1
John is employed by company XYZ. In August 2012, John is elected as a shop steward of trade
union B. John is consequently dismissed for accepting a union position. Is the dismissal fair?
Did you remember the following in your answer?

John’s dismissal is automatically unfair since John has the right to join a trade union of his
choice and to take part in its activities.
See par 2 on page 208 of the prescribed book.
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Question 2
Distinguish between closed shop and agency shop agreements.

An agency shop agreement is an agreement entered into by a representative trade union and
an employer in terms of which the employer must deduct an agency fee from the wages of
employees identified in the agreement who are not members of the trade union but who are
eligible for membership.
A closed shop agreement is an agreement entered into by a representative trade union and an
employer in terms of which all employees covered by the agreement must be members of
the trade union.
See par 3.2 and 3.3 on pages 213 and 214 of the prescribed book.
Question 3
List the five organisational rights and indicate the threshold or level of representation required
by a union to acquire them.

(1) access to the workplace = sufficient representation
(2) election of trade union representatives = majority representation
(3) leave for trade union activities = sufficient representation
(4) deduction of membership fees = sufficient representation
(5) disclosure of information = majority representation
See par 4.4 on page 217 of the prescribed book.
Question 4
Section 21 of the LRA provides that a registered trade union can notify an employer in writing
that it wishes to exercise organisational rights.
Name FOUR types of information that must be contained in the written notice.
1. Which document must accompany the notice above
2. Although a representative trade union has the right to the disclosure of information, the
employer need not disclose FOUR types of information. List them.
3. To which institution must disputes about disclosure of information be referred?
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1.
 the workplace where the trade union wants to exercise the rights
 how representative the trade union is
 which rights it wishes to exercise
 how it wants to exercise the rights
2. a certified copy of the trade union’s registration certificate
3.
 information that is legally privileged

 personal/private information of an employee, unless the employee consents
 information that could harm the business of the employer
 information the employer may not disclose without breaching an order of court or
contravening a legal provision
4. the CCMA
See par 4.5.4 on page 218 of the prescribed book.
Question 5
Which ONE of the following statements about organisational rights is CORRECT?
1 An unregistered trade union that represents 55% of the employees in the workplace is
entitled to access to the workplace, the deduction of membership fees from the wages of
members, the election of shop stewards, time off for union activities for shop stewards
and the disclosure of information.
2 A registered trade union that is merely sufficiently representative in a workplace is
entitled to access to the workplace and the deduction of membership fees from the
wages of its members.
3 An unregistered trade union that is a member of a bargaining council is entitled to
access to the workplace and to the deduction of membership fees from the wages of its
members.
4 An unregistered minority trade union can obtain organisational rights by concluding a
collective agreement with the employer.

Statement 2 is CORRECT. Only registered trade unions are entitled to any organisational
rights. A trade union need not be the majority union to enjoy such rights. A union that is
sufficiently representative is entitled to access to the workplace, the deduction of membership
fees from the wages of its members and leave for shop stewards for union activities.
Statement 1 is INCORRECT. Although it is correct that the more representative a trade union
is, the more organisational rights it will enjoy, only registered trade unions are entitled to any
organisational rights. The statement would have been correct in the case of a registered trade
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union.
Statement 3 is INCORRECT. Only a registered trade union can become a member of a
bargaining council. A registered trade union that is a member of the bargaining council will
indeed enjoy the right of access to the workplace and the deduction of membership fees.
Statement 4 is INCORRECT. An employer and a union can indeed conclude a collective
agreement to arrange the organisational rights that the union will enjoy. However, such trade
union has to be registered.
Question 6
Which ONE of the following statements about a closed shop agreement between a trade union
and an employer is INCORRECT?
1 It is entered into by way of a collective agreement between a majority trade union and an
employer or employers’ organisation.
2 None of the employees who were in the employ of the employer or employers when the
closed shop agreement was concluded may be dismissed for refusing to join the trade
union that is party to the closed shop agreement.
3 The dismissal of conscientious objectors for their refusal to join the union will be fair.
4 Union subscription fees can only be used to advance the socio-economic interests of
union members and not for any political affiliation.

Statement 3 is the CORRECT answer, as the statement is INCORRECT. The dismissal of
conscientious objectors for their refusal to join the union will be unfair.
Statement 1 is an INCORRECT answer, as the statement is CORRECT. A closed shop
agreement is indeed concluded by way of a collective agreement between a trade union and an
employer or employers’ organisation. The same is true of an agency shop agreement.
Statement 2 is an INCORRECT answer, as the statement is CORRECT. Workers already in
employ when the closed shop agreement is concluded may not be dismissed for refusing to join
the union that is party to the agreement.
Statement 4 is an INCORRECT answer, as the statement is CORRECT. Union subscription
fees may not be used for political affiliation; it may only be used to advance the socio-economic
interests of the workers.
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Question 7
Which ONE of the following statements about agency shop agreements is INCORRECT?
1 Agency shop agreements constitute much less of an infringement on an employee’s right

to freedom of association than closed shop agreements.
2 Only a registered trade union, or two or more registered trade unions acting jointly, that
represent the majority of employees in a workplace can conclude a binding agency shop
agreement in respect of that workplace.
3 A binding agency shop agreement can only be concluded if a ballot was conducted
among all employees likely to be affected by the agreement and two-thirds of the
employees who voted, voted in favour of the agreement.
4 The agency fee may not be more than the subscriptions paid by the members of the
trade union that is party to the agency shop agreement.

Statement 3 is incorrect, as no ballot is required for an agency shop agreement (only for a
closed shop agreement).
In traditional African societies, people found their security in the family and the community. As a
result of colonialisation and urbanisation, the traditional African family group disintegrated. To
provide security in these changed circumstances, people had to form new groups and the trade
union emerged as a grouping to assist the worker with job security and improved terms and
conditions of employment.
For people to join a trade union of their choice, the right to freedom of association is a
prerequisite. The inclusion of freedom of association as a basic human right ensures that
individuals retain their freedom to choose. Freedom of choice is an important underlying value
for any democratic society.
For trade unions to be effective, they should have access to the workplace and the employer.
Since there is no duty on the employer to bargain with a trade union about organisational rights,
the law makes the acquisition of certain organisational rights dependent on the level of
representation that a trade union has in a workplace.
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STUDY UNIT 2
COLLECTIVE BARGAINING

The word “collective” refers to the fact that employees join together in trade unions to increase
their power when bargaining with employers over wages, working conditions and any other
matter of mutual interest to them. It is important to note that only trade unions can engage in
collective bargaining. Although a single employer can engage in collective bargaining, an
individual employee cannot.
The process of collective bargaining entails negotiations between the two parties, namely a
union on the one hand and an employer or an employers’ organisation on the other hand.
Unlike mere consultation, collective bargaining presumes a willingness by each party not only to
listen to and consider the representations of the other party, but also to abandon its own fixed
position where possible in order for the parties to find common ground.
In this chapter, the difference between the right to engage in collective bargaining and the duty
to bargain is discussed.
Actions by the employer that amount to a refusal to bargain are also discussed, as well as the
relevant remedies available to employees if this happens.
The different bargaining agents, namely trade unions and employers’ organisations, are
discussed. The forums where they operate (namely bargaining councils and workplace forums)
are also discussed, as well as the various levels of bargaining that can take place in the
respective forums.
The main goal of collective bargaining between an employer and a trade union is to reach
consensus about certain matters and formalise their relationship by means of a collective
agreement. A collective agreement regulates the rights and duties of the parties, as well as the
terms and conditions of employment of workers. The elements of a collective agreement, and its
effect, are discussed in detail.
 collective bargaining
 bargaining agent
 bargaining level
 collective agreement
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2.4.1 Collective bargaining
Collective bargaining assumes a willingness by both parties not only to listen to and consider
representations by the other party, but also to abandon fixed positions where possible in order
for the parties to find common ground. Through collective bargaining, parties (trade unions and
employers/employers’ organisations) with different views and desires are able to reach
agreement on a variety of issues. It is called collective bargaining because employees,
collectively represented by a trade union and not as individuals, negotiate with the employer.
(i) The duty to bargain
Although the Constitution provides for the right to collective bargaining, this does not mean that
there is a duty on employers to bargain with employees (or employees with employers). The
LRA encourages collective bargaining by granting organisational rights and the right to establish
bargaining institutions, and by recognising union security arrangements. The refusal to bargain
can result in industrial action by employees in order to convince the employer to bargain. In
terms of section 64(2) of the LRA, the refusal to bargain includes the following:
 the refusal to recognise a trade union as a bargaining agent

 the refusal to establish a bargaining council
 the withdrawal of the recognition of a collective bargaining agent
 the resignation of a party from a bargaining council
 a dispute concerning appropriate bargaining units, levels and topics
(ii) Bargaining agents
Employees organise themselves into trade unions that represent them during bargaining. Trade
unions are regulated by the LRA, which also prescribes the process for their registration.
A single employer can engage in collective bargaining with a trade union or employers may
form an employers’ organisation that will serve as a bargaining agent. An employers’
organisation is defined as "any number of employers associated together for the purpose,
whether by itself or other purposes, of regulating relations between employers and employees
or trade union". Trade unions and employers’ organisations may together form bargaining
councils.
(iii) Statutory bargaining structures
Bargaining councils and statutory councils are two types of structures created by the LRA.
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(1) Bargaining councils
A bargaining council can be established by one or more registered trade unions and one or
more registered employers’ organisations for a sector and area (for example, the security
industry in Gauteng). Section 30 of the LRA lists topics that must be provided for in the
constitution of a bargaining council. The parties to the council may apply for its registration to
the Registrar of Labour Relations by submitting the documents prescribed by the LRA (see
section 4.1.2 of chapter 11 of the prescribed book). The powers of a bargaining council include
to conclude collective agreements, to enforce such agreements, and to prevent and resolve
disputes (see section 4.1.3 of chapter 11 of the prescribed book).
Bargaining can take place on the following levels:
BARGAINING LEVEL EXPLANATION

Plant level This takes place between the employees and the employer at a
specific plant or factory.
Sector level This takes place in a specific sector of the economy and is linked
to a specific geographical area.
Industry level This is bargaining for a whole industry, for example the mining
industry.
(2) Statutory councils
A statutory council may only be established in a sector or area where there is no bargaining
council. A statutory council may be established when a representative trade union (that is, a
union or unions representing at least 30% of employees employed in the sector or area in which
application is made) or representative employers’ organisation (that is, an employers’
organisation whose members employ at least 30% of employees in the sector or area in which
application is made) applies to the Registrar for the establishment of a council. See paragraph
4.2.1 of chapter 11 of the prescribed book, where the powers of statutory councils are
mentioned.
(iv) Collective agreements
A collective agreement is concluded after successful collective bargaining between the

employer and trade unions. It regulates the terms and conditions of employment on which the
parties agreed.
See paragraph 5 of chapter 11 of the prescribed book for the definition of a collective
agreement and its important elements, and for the legal and binding effect of a collective
agreement.
It is important to note that a collective agreement changes any contract of employment between
an employee and an employer if they are both bound by the agreement. A collective agreement
concluded in a bargaining council is binding on parties to the bargaining council that are parties
to the agreement, to parties to the council that are not parties to the agreement, and to parties
that are not members of the council and not parties to the agreement but fall within the sector
and area of jurisdiction of the council, if the agreement is extended to them in terms of section
32 of the LRA.
Every collective agreement must contain a procedure for the resolution of disputes about the
application and interpretation of that agreement.
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Question 1
List three possible bargaining levels in the workplace.

Plant, sector and industry bargaining levels.
Question 2
Discuss the binding effect of a collective agreement.

Such an agreement binds (1) the parties to the agreement; (2) each party to the agreement
and the members of every other party to the agreement in so far as the provisions are
applicable to them; (3) members of a registered union and employees who are members of a
registered employers’ organisation that are party to the collective agreement if it regulates (i)
terms and conditions of employment or (ii) the conduct of the employers in relation to their
employees or the conduct of the employees in relation to the employer; (4) employees who
are not members of the union/s which is party to the agreement and (i) the employees are
identified in the agreement, (ii) the agreement expressly binds the employees and (iii) the
union/s represent the majority of all the employees employed in the workplace.
See par 5 on page 231 of the prescribed book.
Both labour law and Africanisation aim to ensure that people in a particular context (for
example, the workplace in the case of labour law and the community or family in the case of
traditional African societies) have sound relationships tailored on accommodating opposing
views and conciliating competing interests.
Both collective labour law and ubuntu favour the inclusive approach of joint decision making in
matters that affect the group or organisation as a whole. This allows for a more horizontal
approach where not all decisions are made from the top.
Collective bargaining is based on freedom of association, which is fundamental to ubuntu (with

its inherent belief that one is never alone, as expressed in the African idiom “Motho ke motho ka
batho” [I am because you are]).
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Collective bargaining creates a platform for parties to discuss and convince each other of their
opinions, with the view of finding common ground or reaching a decision that will benefit all,
leading to the conclusion of a collective agreement. To stand together is part of African tradition.
This is evident from the African idioms “Tau tsa hloka seboka disitwa ke nare e tlhotsa” (When
soldiers do not work together, they fail); “bobedi bo bolaya noga” (two are better than one ) and
“kopano ke maatla” (unity is power).
Because there is no duty to bargain in South African labour law, and there is no penalty for not
bargaining, the choice whether or not to bargain lies with the parties. Because there is no
obligation on the parties to engage in it, collective bargaining is a humane way of solving
problems. It humanises the law. The humaneness of collective labour law is also evidenced by
the fact that even minority unions are allowed to acquire and exercise certain organisational
rights. The mere fact that even the minority has a voice, is humane.
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STUDY UNIT 3
WORKPLACE FORUMS

This study unit deals with workplace forums. Workplace forums were introduced to promote
worker participation in decision making within the workplace, irrespective of their union
membership. Unlike trade unions, workplace forums are not collective bargaining structures.
 workplace forum
 consultation
 joint decision making
Study chapter 12 of the prescribed book.
Workplace forums are established by registered trade unions to promote worker participation in
decision making in the workplace. A forum may be established in a workplace where there are
more than 100 employees. This is done through a collective agreement, through the
intervention of the CCMA or by a trade union (see paragraph 2 of chapter 12 of the prescribed
book, where the establishment of a workplace forum is discussed). Unlike trade unions,
workplace forums are not involved in wage-related issues and cannot embark on industrial
action. All employees, except senior managerial employees, can be members of a workplace
forum.
A workplace forum must be consulted on certain matters and have joint decision making in
other matters. Study these matters in paragraphs 5 and 6 of chapter 12 of the prescribed book.
The following is a summary:
Consultation The forum makes representations and advances alternative proposals on a

matter to the employer. The employer must consider the proposals and
respond to them. If the proposals are not acceptable, it must provide reasons.
Matters for consultation:
 restructuring the workplace (for example, the introduction of new

technology)
 changes in the organisation of work
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 the total or partial closure of the plant

 mergers and transfers of ownership if they affect employees
 retrenchment of employees
 exemptions from a collective agreement or the law
 job grading
 criteria for merit increases or the payment of discretionary bonuses
 education and training
 product development plans
 promotion of exports
Joint decision The employer must consult and reach consensus with the workplace forum.
making
Matters for joint decision making:
 disciplinary codes and procedures

 proper regulation of the workplace
 measures to protect and advance persons disadvantaged by unfair
discrimination
 changes of employer representatives on boards of employer-controlled
schemes with regard to social benefits
Study paragraph 7 of chapter 12 of the prescribed book regarding the organisational rights of
workplace forums.
Question 1
Is the statement below true or false? Provide reasons for your answer.
A workplace forum enters into an agreement which regulates the terms and conditions of
employment with company A. This agreement has the status of a collective agreement and is
binding on all the employees of company A.

False. A workplace forum is not a legal person and cannot conclude a collective agreement as
defined in the LRA. Only a registered trade union can conclude a valid collective agreement.
See pars 1 and 4 on pages 236, 237 and 238 of the prescribed book.
Question 2
Discuss the difference between consultation and joint decision making.
With consultation, the employer considers and respond to representations by the employees. If
the employer does not agree with them, it must provide reasons.
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With joint decision making, the employer must consult and reach consensus with the
employees.
See pars 5 and 6 on pages 238-240 of the prescribed book.
Question 5
Which of the following matters can be decided by way of consensus in a workplace forum?
 job grading
 criteria for merit increases or payment of discretionary bonuses
 education and training
 measures designed to protect and advance persons disadvantaged by unfair
discrimination
 criteria for merit increases or payment of discretionary bonuses

 measures designed to protect and advance persons disadvantaged by unfair
discrimination
See par 5 and 6 on pages 238 to 240 of the prescribed book.
In workplace forums, the parties have to share ideas, respectfully consider representations, and
try and reach consensus – which reflect the African saying “kutlwano ke matla” (unity is
strength). These requirements humanise the law because decisions are based on consensus.
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STUDY UNIT 4
STRIKES AND LOCK-OUTS

At the end of a collective bargaining session or process, the parties may either reach an
agreement or fail to do so. If an agreement is reached, a collective agreement is concluded.
However, if no agreement is reached, the parties may agree on mediation/arbitration or decide
to exert pressure on each other through industrial action. Industrial action for employees can be
in the form of strikes, secondary strikes, pickets and protest action; employers have recourse to
lock-outs.
Both strikes and lock-outs are essential elements of collective bargaining. However, such
actions should be used as measures of last resort. A strike is used by employees to support
their demands in promoting and defending their employment-related interests; a lock-out is used
by employers to support their employment-related demands.
The right to strike is clearly protected in South Africa through the Constitution which guarantees
that every worker has the right to strike. However, the Constitution does not provide for
employers’ right to lock out employees. Employers’ right to lock out is implied in the express
protection of the right to bargain collectively in the Constitution. The LRA gives effect to the right
to strike and provides for the employer’s recourse to lock out in section 64(1).
It is not only important to ensure that the right type of action is chosen, but also that the action is
protected by the LRA.
4.2 KEY CONCEPTS TO LOOK FOR IN THE STUDY UNIT
 strike
 lock-out
 matters of mutual interest
 issue in dispute
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This study unit deals with strike action and lock-out. It covers the definitions for both actions and
the procedural requirements for the protection of both actions.
4.4.1 Legislative protection of the right to strike and lock- out
Section 23 of the Constitution protects the right of every worker to strike, but it does not grant
employers the right to lock out employees. Both the right to strike and recourse to lock out are
regulated and protected by Chapter IV of the LRA. Neither of these rights is directly protected in
terms of ILO conventions, but indirectly through Conventions 87 and 98.
4.4.2 Protected industrial action
A strike and a lock-out must comply with the following requirements set by the Act in order to be
protected: the action must comply with the definition of “strike” or “lock-out”; it must comply with
the procedural requirements in terms of section 64 of the LRA; and there should not be any
limitations in terms of section 65 of the LRA.
Requirement 1: Definition
The action has to comply with the definition of a strike and a lock-out to qualify for protection.
Study the definitions of these two concepts in paragraphs 4.2 and 4.3 of chapter 13 of the
prescribed book.
Each definition has important elements that you should know. The three elements of a strike
are:
(1) refusal to work The refusal can be partial or complete, or the

retardation or obstruction of work. Work includes
overtime work.
(2) by persons employed by the same or The right to strike cannot be exercised individually;
different employers there must be collective action.
(3) for the purpose of remedying a grievance If there is no dispute of mutual interest between the
or resolving a dispute in respect of any parties, the action will not comply with the definition.
matter of mutual interest between an
employer and employee.
The two elements of a lock-out are:
(1) the exclusion of employees from the It is not a lock-out if the employer excludes an individual
employer’s workplace employee from the workplace.
(2) for the purpose of compelling them to If the purpose is not to compel employees to accept a
accept a demand in respect of any matter of demand in respect of a matter of mutual interest, the
mutual interest action will not comply with the definition.
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Please note that for action by employees to constitute a strike and for action by the employer to
constitute a lock-out, all the stated elements must be present. It is important to understand
these definitions because if an action does not fall within the prescribed definition, it will not
constitute a strike or lock-out and it might even be regarded as a breach of contract or a delict
(which could result in a claim for damages).
Requirement 2: The procedural requirements for strikes and lock-outs
Employers must follow a specific procedure before they can lock out employees and employees
have to follow a certain procedure before they can embark on a strike. In this way, the LRA
provides the rules for fair play in collective bargaining. A strike or lock-out will be protected if
these requirements have been met, except in a few exceptional cases that we discuss later.
The purpose of the procedural requirements is to give parties the opportunity to try to resolve
their dispute before they engage in a strike or lock-out.
The following are the procedural requirements prescribed by the LRA in order for strikes and
lock-outs to be protected:
 The issue in dispute. The LRA requires that there must be an issue in dispute. In
addition, it requires that the parties must try to resolve the issue by first referring it to a
bargaining council (if there is one for the sector) or to the CCMA (if there is no bargaining
council) for conciliation.
 Certificate of outcome. The forum to which the dispute was referred must attempt to
resolve it through conciliation within 30 days of the referral. If no agreement is reached, a
certificate must be issued to indicate that the matter has not been resolved.
 Notice. If the matter is not resolved or 30 days have passed, the LRA prescribes that at
least 48 hours’ written notice must be given before the commencement of the strike or
lock-out. In cases where the state is the employer, at least seven days’ notice must be
given. Where the employer is a member of an employers’ organisation, notice must be
given to the employers’ organisation.
The LRA does not prescribe the details that the notice must contain; it only prescribes that it
must be in writing and must be issued at least 48 hours before the action.
The exceptions where the parties do not need to follow the procedures prescribed by the LRA
are the following:
 where the parties to the dispute are members of a bargaining council and the dispute
followed the procedure prescribed by that bargaining council’s constitution;
 where the parties are party to a collective agreement which prescribes the procedures to
be followed before a strike or lock-out, and those procedures have been followed;
 where employees strike in response to an unprotected lock-out or the employer resorts to
a lock-out in response to an unprotected strike;
 where the strike takes place because the employer has unilaterally changed the terms
and conditions of employment and has failed to rectify this despite prior warnings; and
 where an employer refuses to bargain with a union, in which case the dispute must be
referred for advisory arbitration – after conciliation has failed – before notice of the strike
can be issued
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Requirement 3: Prohibitions or limitations on strikes and lock-outs
The Constitution recognises and accepts the principle that under certain circumstances rights
may be limited, provided that the limitation complies with section 36(1) – the limitation clause. In
view of this provision, in section 65, the LRA limits or prohibits the right to strike and recourse to
lock out.
If a strike or lock-out takes place in spite of these limitations or prohibitions, the strike or lock-out
will be unprotected (even if the procedural requirements discussed above have been met).
In terms of the LRA, strikes and lock-outs are prohibited in the following circumstances:
striking or locking out is prohibited in a If the parties agreed that they would not engage in industrial
collective agreement action on a certain issue, they are not allowed to do so.
arbitration is prescribed by agreement Parties are bound by any agreement in terms of which the
particular issue should be arbitrated.
the LRA prescribes arbitration or If a party has the right to refer the dispute to arbitration or to
adjudication the Labour Court for adjudication, that party may not resort
to a strike or lock-out in order to resolve the dispute.
employees who work in essential or Employees who are engaged in the provision of essential
maintenance services (note, in and maintenance services are prohibited from striking,
paragraph 6.6.1 of chapter 13 of the unless there is an agreement about minimum services.
prescribed book, which services have
been designated as essential services)
an award, agreement or determination No one may take part in a strike or a lock-out if he or she is
regulates the issue bound by an arbitration award, an agreement or a
determination by the Minister of Labour that regulates the
issue.
4.4.3 Secondary strikes
Study paragraph 7 of chapter 13 of your prescribed book and make sure that you understand
how a secondary strike differs from a primary strike (discussed above).
A primary strike is the main strike by employees who have a dispute with their employer. A
secondary strike will be protected if the primary strike is protected, if strikers gave their
employer seven days’ written notice before the strike and if the harm to the secondary employer
is not more than what is necessary to make an impact on the primary employer.
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4.4.5 Legal consequences of strikes and lock-outs
(i) Protected strikes and lock-outs
If all the requirements set by the LRA for a strike and a lock-out to be protected have been met
successfully, the strike or lock-out will be protected. Consequently, the employees and the
employer (whatever the case may be) will enjoy the following protection:
 The action by the employer or the employees does not constitute a delict or breach of
contract.
 The employee may not be dismissed, except in the case of misconduct and for the
operational requirements of the business (study paragraph 8.1 of chapter 13 of the
prescribed book).
 The employer may not discriminate against the employee because of his or her
involvement in the strike.
 No claims for compensation can be instituted against employees or employers.
Other consequences
 The employer does not have to pay employees who are on strike or are locked out, since
the "no work, no pay" rule applies.
 Where the remuneration of employees include payment in kind in the form of
accommodation, the provision of food and other basic amenities of life, the employer may
not withhold that payment in kind during the strike or lock-out. However, the employees
must request that the payment in kind continues.
 No replacement labour may be used by the employer if the service is designated as a
maintenance service or the employer embarks on an offensive lock-out.
(ii) Unprotected strikes and lock-outs
The following are the consequences of an unprotected strike or lock-out:
(1) Interdict
The Labour Court has jurisdiction to grant an interdict or an order restraining any person from
participating in or acting in contemplation or furtherance of an unprotected strike.
(2) Compensation
The Labour Court may order the payment of "just and equitable compensation" to either
employees or employers who suffered any loss caused by an unprotected strike or lock-out.
(3) Dismissal of strikers
Strikers who participate in an unprotected strike, or who commit certain forms of conduct in
contemplation or furtherance of an unprotected strike, may be dismissed. Participation in
unprotected strike action will be the reason for such a dismissal. The Code of Good Practice:
Dismissal provides that participation in an unprotected strike constitutes misconduct. However,
as is the case with any other act of misconduct, participation in an unprotected strike does not
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necessarily justify dismissal. The dismissal will only be fair if it is both substantively and
procedurally fair.
Substantive fairness of dismissal for participation in an unprotected strike
The Code of Good Practice: Dismissal requires that the substantive fairness of the dismissal of
strikers who participated in an unprotected strike must be evaluated in the light of the following:
(a) the seriousness of the failure to comply with the LRA

(b) attempts to comply with the provisions of the LRA, and
(c) any unjustified conduct by the employer
Study paragraph 9.3.1 of chapter 13 of the prescribed book.
Procedural fairness of dismissal for participation in an unprotected strike
The Code of Good Practice: Dismissal requires that the dismissal of strikers who engaged in an
unprotected strike must be procedurally fair. It sets out the procedure to be followed as follows:
 The employer is required to contact a union official "at the earliest opportunity" before
dismissing the strikers. The purpose of this contact is to discuss the course of action that
the employer intends to follow and to give the union the opportunity to persuade the
employer not to dismiss the strikers and for the workers to return to work.
 The employer must give the strikers an ultimatum before dismissing them. The following
factors are important regarding the ultimatum:
(a) The purpose of an ultimatum is to convince strikers to return to work.
(b) The ultimatum must be communicated to the strikers in a medium that they
understand.
(c) The ultimatum should be issued in their own language.
(d) The ultimatum must be clear and unambiguous, leaving no doubt as to what is
expected of them.
(e) The time set in the ultimatum should be reasonable (in other words, it must allow
sufficient time for the workers to receive and digest the ultimatum, to hold meaningful
discussions with their union and to take rational decisions).
(f) If the ultimatum is issued to a collective bargaining representative (a union
representative) within a reasonable time, it will constitute sufficient notice to
employees.
 Once the strikers have complied with the ultimatum, the employer can no longer take
disciplinary action against them for taking part in the unprotected strike.
 If the workers, however, elect not to make representations, their dismissal will not be
considered to be procedurally unfair.
 In circumstances where it cannot reasonably be expected from the employer to issue an
ultimatum, the employer may summarily dismiss the strikers.
Study paragraph 9.3.2 of chapter 13 of the prescribed book.
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Question 1
Indicate whether the following actions will constitute a strike action and provide reasons for
your answer.
Action 1: Employees employed by Shosholoza Granites decide to disrupt production. Half of
them refuse to work during the morning of each day and the other half during the afternoon.
The purpose of their action is to compel the employer to stop taxi drivers from harassing ladies
employed by the company at the taxi rank.
Action 2: Employees in a spice factory deliberately produce fewer spices than they normally do
in order to compel the employer to increase their salaries.
Action 3: Employees who work for Real Platinum Mine refuse to work underground because
they consider the conditions unsafe. After an investigation, the mine is declared safe; however,
the employees still refuse to work.
Action 4: Employees represented by trade unions affiliated to FTU engage in an action against
the new tax system introduced by the government.

Action 1 will not constitute a strike because the definition of a strike requires that the purpose of
the action must be to remedy a grievance or dispute relating to a "matter of mutual interest"
between employees and the employer. The matter of taxi drivers harassing ladies is not a
matter of mutual interest as required by the definition of a strike.
Action 2 will constitute a strike because it complies with all the elements contained in the
definition of a strike.
Action 3 will not constitute a strike because the reason for the strike has been removed. The
dispute or grievance is no longer in existence.
Action 4 will not constitute a strike, as the dispute does not relate to a matter of mutual interest
between the employees and the employer. Employees can engage in protest action if the issue
in dispute relates to socio-economic rights.
See par 4 on pages 246 to 248 of the prescribed book.
Question 2
What are the circumstances under which employees who wish to embark on a strike need not
meet the procedural requirements laid down in the LRA before that strike will be protected.
Did you remember the following?
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 where the parties to the dispute are members of a bargaining council and the dispute
followed the procedure set by that bargaining council’s constitution
 where the parties concluded a collective agreement with prescribed procedures to be
followed before they strike or lock-out, and they have complied with that agreement
 where an employer implements an unprotected lock-out and the employees strike in
response thereto (the same would apply if the employer locked out the employees in
response to an unprotected strike)
 where a strike takes place after the employer has unilaterally changed the terms and
conditions of employment and fails to rectify this despite prior warning
 where an employer refuses to bargain with a union, the dispute must first be referred for
conciliation and then for advisory arbitration before notice of a strike can be given
See par 5.4 on pages 250 and 251 of the prescribed book.
Question 3
List five examples of essential services.

Essential services:
(1) the regulation and control of air traffic
(2) municipal traffic policing
(3) the supply and distribution of water
(4) the generation, transmission and distribution of power
(5) fire-fighting
(6) correctional services
Question 4
An employer faced with a protected strike can  .
1 dismiss the striking employees for participating in the strike

2 dismiss employees who are not striking for refusing to do the jobs of the protected
strikers
3 promise to pay a bonus to all those strikers who decide to return to work
4 dismiss the striking employees on the basis of operational requirements
5 approach the Labour Court for an interdict prohibiting the strike action

Option 4 is the correct answer. The employer may dismiss employees who are engaged in a
protected strike for operational requirements. Employees engaged in a protected strike may
also be dismissed for acts of misconduct committed during the strike.
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Question 5
Briefly discuss when an exception to the "no work, no pay" rule will not apply.

If the employees’ remuneration includes payment in kind in the form of accommodation, the
provision of food and other basic amenities of life, the employer may not withhold such
payment in kind during a strike or lock-out.
Question 6
Discuss whether employees who participated in an unprotected strike action have a right to a
hearing before dismissal.

Participation in an unprotected strike is an act of misconduct; however, as in the case of any
other act of misconduct where the employer wants to dismiss employees, the dismissal must be
both substantively and procedurally fair. Among other things, the employer must issue an
ultimatum to employees who are on strike before dismissing them.
Question 7
Section 65 of the LRA prohibits strikes and lock-outs in a number of instances. What are those
instances?

Section 65 of the LRA provides for the following limitations on strikes and lock-outs:
 where the strike is prohibited in a collective agreement

 where an agreement prescribes arbitration
 where a dispute must be referred for arbitration or to the Labour Court
 where employees are engaged in essential and maintenance services
 where an award, collective agreement or determination regulates the issue in dispute
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Question 8
XX is a factory situated in Limpopo and it supplies tiles to SS, a company which sells tiles in
Pretoria. Trade union TT has been trying to negotiate with SS for a change in the shift system
without success. TT embarks on a protected strike to compel SS to accept their demand. After
hearing about the dispute, members of AA (a trade union representing employees at XX) go on
strike in support of the demand. What is the strike by members of AA called and what
requirements must be complied with for the strike to be protected?
The strike by members of AA is called a secondary strike. A secondary strike will be protected if
the primary strike is protected; strikers gave their employer seven days' written notice before
the strike and the harm to the secondary employer is not more than what is required to make an
impact on the primary employer. See par 7 on page 255 and 256 of the prescribed book.
Industrial action is meant to bring pressure to the other party (employer or employees) to
accede to the demands brought by the opposite party. This appears and sounds drastic and
inhumane; however, the law requires that before any such action may be taken, certain
requirements should be met to ensure ubuntu and fairness. A particular form of action must
first be in line with the definition provided by the Act and be aimed at fulfilling the purpose
contained in the definition. Thereafter the action must meet certain procedural requirements in
order to earn protection. This demonstrates the element of ubuntu and requires parties to be fair
to one another. Before employees may engage in a strike, the dispute must be referred to a
bargaining council or the CCMA for conciliation. This is part of the African practice where a
dispute is usually referred to a “Kgoro” which will attempt to resolve the matter. During this
process, the audi alteram partem principle is applied because both sides must be heard.
Although the right to strike is for individual employees, the law does not allow individual
employees to engage in a strike or employers to lock out an individual employee. This shows
that the law encourages collectivity, which is also an element of ubuntu.
The LRA ensures that there is fairness where industrial action in the form of strikes and lock-
outs are resorted to, by providing limitations on strikes and lock-outs, under certain
circumstances. For example, where the parties agreed that there will be no strike regarding a
particular dispute or that the matter shall be resolved in a particular way. This shows ubuntu
and humanness in that agreements must be respected and honoured by those who concluded
them, in order to promote peace and justice.
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The law further attaches certain consequences to both protected and unprotected industrial
action. This has an element of ubuntu and fairness as the parties will know that “one reaps
what one sows”. Employees who take part in a protected strike will not incur civil liability and
may not be dismissed, unless for acts of misconduct. This again shows ubuntu as it clearly
discourages acts of violence during industrial action.
Before dismissing employees who participated in an unprotected strike, the principles of ubuntu
and audi alterem partem are again evident since an employer must give the employees an
ultimatum and time to respond before dismissal can take place.
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STUDY UNIT 5
PICKETS AND PROTEST ACTION

This study unit deals with the rest of the actions which constitute industrial action: pickets and
protest action.
The different forms of collective action play an important role in the collective bargaining arena
and even in society in general.
Protest action is an interesting phenomenon, as it involves action by workers. However, this is

not action on matters of mutual interest, but for a socio-economic purpose.
 picket
 protest action
This study unit deals with pickets and protest action, and their procedural requirements for
protection.
5.4.1 Picketing
Striking is the most effective weapon that trade unions can use against employers but in order
to exert more pressure on the employer during the strike, trade unions may encourage their
members to engage in another action (called a picket) to advance the object of the strike. A
picket is therefore conduct in contemplation or furtherance of a strike.
Study paragraph 2.2 of chapter 14 of your prescribed book and item 3(1) of the Code of Good
Practice: Picketing regarding the purpose of a picket.
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(i) Requirements for protected pickets
During a picket, employees who are on strike may stand at or near their workplace to try to
persuade employees who are not on strike to strike or to convince customers or suppliers of the
employer not to deal with the employer. As is the case with strikes and lock-outs, a picket will be
protected if it complies with certain requirements. The action must comply with the definition of a
picket and with the requirements set by section 69 of the LRA.
Requirement 1: Definition
Study paragraph 2.2 of chapter 14 of the prescribed book. The purpose of the action must be to
peacefully encourage non-striking employees and members of the public to oppose a lock-out
or to support a protected strike.
Requirement 2: Procedural requirements
In terms of section 69 of the LRA, the requirements are the following:
 The picket must be authorised by a registered trade union. Unregistered trade unions
and employees on their own cannot authorise a picket.
 The picket must be for the purpose of peaceful demonstration. Intimidation and violence
will result in civil and criminal liability.
 The picket must be in support of a protected strike or in opposition to a lock-out. Pickets
in support of unprotected strikes will not be protected.
Pickets may take place at any place to which the public has access, but are usually held outside
the premises of an employer. A picket may even be held on the premises of the employer, on
condition that the employer gives permission for this. Such permission may, however, not
unreasonably be withheld. Study paragraph 2.4 of chapter 14 of the prescribed book.
Study paragraph 2.5 of chapter 14 of the prescribed book regarding picketing rules and conduct
during a picket.
(ii) The legal consequences of protected and unprotected pickets
As is the case with strikes and lock-outs, there are legal consequences to protected and
unprotected pickets. The following are the legal consequences of a protected picket:
 An employee who takes part in a protected picket does not commit a delict or breach of
contract.
 The employer may not sue employees or their trade union for damages suffered during a
protected picket.
 No disciplinary action may be taken against an employee for participating in a
protected picket, except for acts of misconduct (such as intimidation or threatening
others). The consequences of an unprotected picket are exactly the opposite of those of
a protected picket.
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5.4.2 Protest action
(i) Requirements for protected protest action
There are two requirements for protected protest action: the action must comply (1) with the
definition of protest action and (2) with all the procedural requirements in terms of section 77.
Requirement 1: Definition of protest action
Often, employees and trade unions pursue interests of more general importance (beyond those
of the workplace) to advance economic development. However, they cannot strike for these
purposes. The LRA affords employees and trade unions the right to engage in protest action as
a form of industrial action in order to pursue socio-economic interests.
Study the definition of protest action in paragraph 3.1 of chapter 14 of the prescribed book.
Take note that the difference between a strike and a protest action lies in the purpose of the
actions. The purpose of a strike is "to remedy a grievance or resolve a dispute in respect of any
matter of mutual interest between employer and employee", whereas the purpose of a protest
action is "to promote or defend the socio-economic interests of workers".
Requirement 2: Procedural requirements
Please note that employees who are engaged in essential and maintenance services may not
take part in protest action. Protest action will be protected if it complies with the following
procedural requirements:
 A registered trade union or federation of trade unions must call the action.
 The National Economic, Development and Labour Council (NEDLAC) must be informed
of the protest action, its nature and the reason for the action.
 NEDLAC or any other appropriate forum must have considered the matter that gives rise
to the protest action.
 NEDLAC must have been given 14 days’ notice of the intention to protest.
(ii) Legal consequences of protected and unprotected protest action
If the abovementioned requirements are complied with, the protest action will be protected in
the same manner as protected strikes and lock-outs. No civil claim may be brought against
participating employees and they may not be dismissed for their participation in the action.
However, in terms of section 77(4) of the LRA, the action will not be protected if employees
participate in protest action in breach of a Labour Court order or when employees otherwise act
in contempt of an order of the Labour Court made in terms of section 77. If the action is not
protected, employees may be interdicted and damages may be claimed from employees who
participated in the action. Such employees may also be fairly dismissed.
36
LLW2602/501
Question 1
Discuss whether an unregistered trade union can call a picket and a protest action.

Unregistered trade unions and employees acting on their own cannot authorise a picket. A
protest action can also only be called by a registered trade union or registered federation of
trade unions.
See pars 2.3 and 3.2 on pages 266 and 270 of the prescribed book.
Question 2
Which ONE of the following is NOT a requirement for a protected picket?
1 The picket must be authorised by a registered trade union.

2 The picket must be peaceful.
3 The picket must be in support of a protected strike.
4 The picket must, if it is not in support of a strike, be in opposition to a lock-out.
5 The employer must give permission, which permission may not unreasonably be
withheld, for the picket to go ahead.
Option 5 is correct, because it is not a requirement for a protected picket. All the other options
are correct statements about a protected picket.
Ubuntu means people are people through others. Protest action is one of the areas where this
is evident. In order to put pressure on the powers that be to give attention to socio-economic
issues, workers sacrifice their wages by engaging in protest action. This is a form of solidarity,
which is an essential element of ubuntu.
Picketing also shows elements of ubuntu and solidarity. If concerns are not voiced, they cannot
be addressed. Picketing raises greater awareness and binds the group together. In traditional
African communities, the collective action of a group or a family ensures success.
We hope that you enjoy your studies.
Regards
YOUR LECTURERS
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Collective Labour Law Tutorial Letter

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LLW2602/501/3/2016

Tutorial Letter 501/3/2016

Department of Mercantile Law

This tutorial letter contains important information

This tutorial letter contains the following information:

The following are your lecturers for 2016:

Mr M Mathiba (012) 429 2749 mathikm@unisa.ac.za

2. NEW PRESCRIBED BOOK

The prescribed book for this module is:

3. OVERVIEW OF THE PRESCRIBED BOOK

1) Part I: Introduction to labour law

4. STUDY SCHEDULE FOR THE MODULE

WEEK SUBJECT STUDENT ACTIVITY TUTOR ACTIVITY

and understanding of the duty They must also have an

1.1 WHAT IS THE STUDY UNIT ABOUT?

1.1 WHAT IS THE STUDY UNIT ABOUT?

 what level of representation is needed for a union to acquire these rights

1.2 KEY CONCEPTS TO LOOK OUT FOR IN THE STUDY UNIT

The following concepts are important:

Chapter 10 of Labour law rules!

1.4 IMPORTANT ASPECTS FOR DISCUSSION

Study paragraph 1 of chapter 10 of the prescribed book.

(b) Freedom of association

Study paragraph 2 of chapter 10 of the prescribed book.

Firstly, freedom of association is protected in terms of ILO conventions (Convention 87 of 1948

(c) Trade union security arrangements

(d) Organisational rights

(i) The purpose of organisational rights

Study paragraph 4.1 of chapter 10 of the prescribed book.

ORGANISATIONAL RIGHT MINIMUM LEVEL OF REPRESENTATION

(ii) The acquisition of organisational rights

Study paragraph 4.5 of chapter 10 of the prescribed book.

Trade unions acquire organisational rights in the following ways:

(iii) Disputes about organisational rights

Study paragraph 4.6 of chapter 10 of the prescribed book.

(e) Relationship between a union and its members

Study paragraph 5 of chapter 10 of the prescribed book.

(f) Registration of unions

Study paragraph 6 of chapter 10 of the prescribed book.

A trade union is an association of employees whose principal purpose is to regulate the

1.5 PRACTICAL QUESTIONS

Did you remember the following in your answer?

Did you remember the following in your answer?

Did you remember the following in your answer?

See par 4.4 on page 217 of the prescribed book.

 information that is legally privileged

See par 4.5.4 on page 218 of the prescribed book.

Did you remember the following in your answer?

See par 4.4 on page 217 of the prescribed book.

Did you remember the following in your answer?

See par 3.3 on page 214 of the prescribed book.

1 Agency shop agreements constitute much less of an infringement on an employee’s right

Did you remember the following in your answer?

See par 3.2 on page 213 of the prescribed book.

1.6 AFRICANISATION AND LABOUR LAW

2.1 WHAT IS THE STUDY UNIT ABOUT?

2.1 WHAT IS THE STUDY UNIT ABOUT?

2.2 KEY CONCEPTS TO LOOK OUT FOR IN THE STUDY UNIT

The following concepts are important:

Chapter 11 of Labour law rules!

2.4 IMPORTANT ASPECTS FOR DISCUSSION

2.4.1 Collective bargaining

(i) The duty to bargain