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Is there a duty to collectively bargain with a trade union?
09 April 2018 ,
Natasha du Preez
490
Workers’ day is a public holiday celebrated in many countries worldwide. South-Africa is no exception to this and workers typically enjoy a day of rest on the 1st of May, of each calendar year. The celebration itself stems from the efforts of labour unions to celebrate the economic and social achievements of workers, at large.
With the looming celebration in mind, one cannot ignore the question whether the exercise of economic power against adversities, implies a duty for employers to engage in collective bargaining.
Conradie, AJ, who delivered the majority ruling in
SANDU v Minister of Defence & others; Minister of Defence & others v SANDU & others [2006] 11 BLLR 1043 (SCA)
, reasoned that –
“There is merit in this contention in so far as it suggests that the right to bargain is meaningless unless it is reinforced by some mechanism to drive the parties to the bargaining table.”
Although a sensible remark, the question of whether there is a duty on the employer to sit at the bargaining table, remained unanswered. For this reason, the Judges turned to the legislative history of the interim Constitution, the Constitution as well as the Labour Relations Act 66 of 1995 (“the LRA”).
The Constitution resolves amongst others, that workers have the right to join and associate with trade unions. In addition, it confers the right to engage. Still, to engage on an aspect of interest such as an increased wage, does not mean that an agreement must be reached. More importantly, if a dispute of interest manifests amongst the parties, the LRA allows for the workers to strike. It follows that the right to strike was given to workers to enforce collective bargaining. It is secured by negotiation prompted by the threat of collective action.
To summarise, whilst our legislation emphasises the virtues of collective bargaining, it cannot be anything other than a voluntary process for the employer. Especially, in lieu of the prescribed recourse available to workers and unions alike.
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