DETERMINING THE THRESHOLD FOR ORGANIZATIONAL RIGHTS: THE LEGAL QUAGMIRE FACING MINORITY UNIONS RESOLVED – South African Post Office v Commissioner Nowosenetz No (2013) 2 BLLR 216 (LC)

Résumé

The issue of organizational rights facing minority unions has been a quagmire since the advent of the Labour Relations Act 66 of 1995(hereinafter “the LRA”). This quagmire exists, notwithstanding the fact that the Constitution affords every trade union the right to engage in collective bargaining (s 23 of the Constitution, 1996). The acquisition of organizational rights by trade unions plays a crucial rolein as far as collective bargaining is concerned. It is through collective bargaining that unions are able to negotiate with employers regarding the terms and conditions of employment. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the industry level. Chapter III of the LRA regulates collective bargaining. Whereas this chapterostensibly promotes a pluralistic approach to organizational rights it is unequivocally biased towards majoritarianism. This is the case despite minority trade unions fulfilling an important role in the current labour system especially when it comes to the balance of powerin the employment arena. In light of the above, the legal quagmire faced by the minority unions in the quest for acquiring organisation rights in terms of the relevant provisions of the LRA is clearly illustrated by the decision in South African Post Office v Commissioner Nowosenetz No ((2013) 2 BLLR 216 (LC) (hereinafter “ the South African Post Office case”)).

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