Name of presenter: Hermann Nieuwoudt Title of Presentation : LRA Amendment Bill - Collective Bargaining

1. SASLAW SEMINAR 3 APRIL 2012 Name of presenter: Hermann Nieuwoudt Title of Presentation: LRA Amendment Bill - Collective Bargaining

2. LRA Amendment Bill - Collective Bargaining Purpose • To facilitate the granting of organisational rights to trade unions that are sufficiently representative; • to require the holding of ballots by trade unions and employers’ organisations prior to calling a strike or lock-out; • to strengthen the status of picketing rules and agreements and to clarify the powers of the Labour Court in respect of breaches of picketing rules or agreements; • to revise the operation and composition of the essential services committee and to provide for minimum service determinations; Author and Date

3. LRA Amendment Bill - Collective Bargaining Organisation rights Atypical employees included

4. LRA Amendment Bill - Collective Bargaining (8A) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of section 22(4) grant a registered trade union that does not have as members the majority of employees employed by an employer in a workplace- (a) the rights referred to in section 14, despite any provision to the contrary in that section, if – (i) the trade union is entitled to all of the rights referred to in sections 12, 13 and 15 in that workplace; and (ii) no other trade union has been granted the rights referred to in section 14 in that workplace. Author and Date

5. LRA Amendment Bill - Collective Bargaining • A similar provision for the right to disclosure of information. • The right will lapse if the trade union is not the most representative trade union in the workplace. • Section 8(C) provides that the commissioner may grant the right to access, stop order deductions and trade union leave to a union (or unions acting together) even if they do not satisfy the threshold set by a threshold agreement if the union/s represents a significant interest or substantial number of employees in the workplace. Author and Date

6. LRA Amendment Bill - Collective Bargaining • The net effect of these provisions is to dilute the principle of majoritarianism and it will increase competition (and probably friction) between trade unions at workplaces. It is debatable whether this will lead to an improvement in industrial relations • Section 21(12) provides that any trade union may seek organisational rights at the premises of a TES or at the premises of the clients of a TES and that any reference to the employer’s premises must be read as including the client’s premises. Author and Date

7. LRA Amendment Bill - Collective Bargaining Bargaining Councils • Effective procedure in place to deal with applications for exemptions by non parties within 30 days. • No representative, office bearer or official of a trade union or employer’s organisation party to the bargaining council may be members of the appeal body.

8. LRA Amendment Bill - Collective Bargaining • Minister must invite comments before deciding to extend a bargaining council agreement that does not cover the majority of the employees in the industry. • TES employees, fixed term employees and part time employees may be taken into account by the Minister when she decides whether a bargaining council is sufficiently representative.

9. LRA Amendment Bill - Collective Bargaining • A determination by the registrar is sufficient proof of the representativeness of the council for a period of 1 year, inter alia, for the purpose of the Minister’s decision to extend a bargaining council agreement.

10. LRA Amendment Bill - Collective Bargaining Industrial action • Section 64(1)(a) requires that a ballot be conducted by a trade union or an employers’ organisation before a lock out or a strike commences and that the majority of the members of the union or organisation who voted, have voted in favour of the strike / lock out.

11. LRA Amendment Bill - Collective Bargaining • In order to reduce the risk of technical challenges to ballots, section 64(6) provides that the CCMA, a bargaining council or an accredited agency may certify that a proper ballot has been conducted and such a certificate is (probably) conclusive proof that the requirements for the conduct of a ballot have been met.

12. LRA Amendment Bill - Collective Bargaining • Section 67(8) provides that the indemnity provisions relating to protected strikes and lockouts do not apply to any act that is a material breach of a picketing agreement or a picketing rule.

13. LRA Amendment Bill - Collective Bargaining • Section 69(1) removes the right of union supporters to participate in a picket.

14. LRA Amendment Bill - Collective Bargaining • Section 69(6)(a) permits picketing in a place owned by a person other than the employer if that person had had the opportunity to make representations before the picketing rules were established.

15. LRA Amendment Bill - Collective Bargaining • Section 69(12) provides that if a party, including a third party, has referred a dispute pertaining to a picket to the CCMA, it may approach the court for urgent interim relief. The court may order any party to comply with a picketing agreement or rule, it may vary the terms of the picketing agreement or rule, it may suspend the picket or strike or suspend the right to engage replacement labour or a lock-out.

16. LRA Amendment Bill - Collective Bargaining • Section 69(13) requires 48 hours notice of an application seeking an order to direct a party to comply with a picketing rule or to vary the terms of a picketing rule; and 72 hours notice to suspend a strike or lock-out. The normal rules pertaining to a shorter notice period apply.

17. LRA Amendment Bill - Collective Bargaining Essential Services Committee (ESC) The ESC consists of 8 persons namely: • an independent chairperson; • a deputy chairperson who must be a senior commissioner of the CCMA; • 2 members nominated by each of government, labour and business.

18. LRA Amendment Bill - Collective Bargaining The powers and functions of the ESC are to: • Monitor the implementation and observance of essential service determinations, minimum service agreements and minimum service determinations; • Promote effective dispute resolution in essential services; • Develop guidelines for the negotiation of minimum service agreements;

19. LRA Amendment Bill - Collective Bargaining Powers continued • Decide, on its own initiative or at the reasonable request of any interested party, whether to institute investigations as to whether or not the whole or a part of his service is an essential service; • Manage its case load; • Appoint panels to exercise the powers set out in section 70(D)

20. LRA Amendment Bill - Collective Bargaining • A panel consists of 3 or 5 persons depending on the complexity of the issue. • It must be presided over by the chairperson or deputy chairperson or by a senior commissioner of the CCMA who must be suitably trained.

21. LRA Amendment Bill - Collective Bargaining • The powers and functions of a panel are to: • Investigate whether the whole or any part of a service is an essential service; • Determine whether to designate the whole or part of a service as an essential service; • Determine disputes as to whether the whole or any part of any service falls within the scope of a designated essential service;

22. LRA Amendment Bill - Collective Bargaining Powers continued • Determine whether or not the whole or part of any service is a maintenance service; • Ratify a collective agreement that provides for the maintenance of minimum services in a service designated as an essential service; • Determine minimum services required to be maintained in a service that is designated as an essential service.

23. LRA Amendment Bill - Collective Bargaining • The presiding member of a panel determines any question of procedure or law, including whether an issue is a question of procedure or law. • The presiding member or chairperson of the ESC may make an order extending or reducing any period prescribed by the rules of the ESC or condoning the late performance of any act contemplated by those rules.

24. LRA Amendment Bill - Collective Bargaining • All other decisions are made by way of majority. • The ESC has national jurisdiction with its seat at the CCMA’s head office. The Director of the CCMA is the accounting officer of the ESC and may appoint staff to the ESC. • The ESC is financed by monies that parliament had appropriated to the CCMA and grants, donations and bequests made to it.

25. LRA Amendment Bill - Collective Bargaining • Section 71(A) defines “Public Officials exercising authority in the name of the state” to be customs officials, immigration officers, judicial officers and officials working in the administration of justice. • These officials are deemed to be providing an essential service once a specific procedure has been completed, culminating in the determination of the minimum service required to be maintained in that service.

26. LRA Amendment Bill - Collective Bargaining • Section 72 provides that, when making a determination in terms of Section 71 that a service is an essential service, the panel may direct the parties to negotiate a minimum services agreement within a specific period. • If that agreement is not negotiated within the period either party may be permitted to refer a dispute to mediation and, if that fails, a panel determines the minimum services that are required to be maintained in that essential service.