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Do collective agreements with majority trade unions bind minority trade unions?

When a majority union enters into a collective agreement with an employer which clearly identifies and binds non-parties to the agreement it will be binding on minority unions. In the recent case of POPCRU v Ledwaba NO & others (JR 636/2012) [2013] ZALCJHB 244 (5 September 2013), the court said that majority unions and employers can legitimately curtail and regulate the rights of minority unions to be granted organisational rights within the workplace.

Facts of the case

• The Police and Prisons Civil Rights Union (POPCRU) was the majority union representing the department of correctional services (DCS) employees.
• POPCRU had concluded a threshold agreement with the DCS in which it agreed to what the minimum number of POPCRU members had to be in the DCS so they could obtain organisational rights.
• POPCRU is a member of the Safety and Security Sectoral Bargaining Council (SSSBC).
• The South African Correctional Services Workers' Union (SACOSWU), a minority trade union, approached the DCS asking for basic organisational rights. As SACOSWU didn’t have enough members, it wanted to acquire these rights through a collective agreement. Remarkably, the DCS entered into a collective agreement with them. 
• POPCRU in turn challenged the legitimacy the DCS’ decision alleging that in doing what it did the department undermined the collective agreement they had with the union. 
• The arbitrator, before the General Public Service Sectoral Bargaining Council, found in SACOSWU’s favour. POPCRU took the decision on review to the Labour Court (LC). 
• The LC found in POPCRU’s favour and made the following important findings:

- What was being disputed was the issue of balancing the freedom of association and the sanctity of collective agreements,
- By granting organisational rights, the Labour Relations Act (LRA) facilitates the right to bargain and conclude collective agreements and the terms of collective agreements can replace the provisions of the LRA in certain instances,
- The structure of the LRA indicates that preference is given to majority unions and where a majority union entered into a collective agreement with an employer that regulates organisational rights and prescribes minimum thresholds for organisational rights which are binding on non-parties then the minority union is not allowed to enter into a collective agreement with the employer,
- The minority union must comply with the provisions of the majority trade union’s threshold agreement if it wants to get organisational rights, and
- When there are two conflicting incompatible collective agreements in place, the majority trade union’s collective agreement will take preference.

Jacques van Wyk is the director: labour and employment law at Werksmans Attorneys. He has a BA (LLB) from the University of Cape Town. He practises labour and employment law, as well as business crime and forensics law. Jacques was named as a recommended lawyer in Labour & Employment by the Legal500 (2010 - 2012) and he co-authored Labour Law in Action – A Handbook on the new Labour Relations Act – 1997 with Frances Anderson.