Minority trade unions and the amendments to the LRA: Reflections on thresholds, democracy and ILO conventions
Authors Paul Benjamin
Affiliations: Temogo Geoffrey Esitang, Stefan van Eck
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 763 – 778
A dominant feature of the LRA collective bargaining framework is that it strongly favours majority trade unions. The proverbial ‘big kids on the block’ can prevent newcomer trade unions from getting a ‘foot in the door’. Section 18 of the LRA permits employers and majority trade unions to conclude collective agreements establishing a threshold of representativeness required in respect of organisational rights. The Labour Relations Amendment Act of 2014 seeks to ameliorate the negative effect of s 18 agreements in two key respects. In the first instance, a trade union may apply for organisational rights despite the existence of a s 18 agreement. Secondly, a trade union not representing a majority of workers at a workplace may apply for all of the organisational rights as long as there is no other trade union at the workplace which holds majority status. This article questions whether, after the amendments, the South African framework of labour democracy: is aligned to the democratic model envisaged by the Constitution; complies with the fundamental labour rights contained in the Constitution; and adheres to ILO conventions. The contribution finds the amendments wanting in so far as they do not do enough to establish the type of multiparty democracy which the Constitution envisages. Furthermore, the limitations which the LRA places on minority trade unions are disproportional in as far as they limit the constitutional and ILO norms pertaining to the freedom of association and the right to organise.