23 rd Annual Labour Law Conference 11

23 rd Annual Labour Law Conference 11 – 13 August 2010 Johannesburg Striking a Chord in the Quest for Organisational Rights…. . The SACCAWU / Woolworths Dispute Kaizer Thibedi & Jeremy Daphne The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 1

Striking a Chord in the Quest for Organisational Rights…. . In this presentation the chord that was struck in SACCAWU’s quest for organisational rights at Woolworths (Pty) Ltd is examined & discussed The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 2

Striking a Chord in the Quest for Organisational Rights…. . In order to carry this out, the early history involving SACCAWU & Woolworths is first explored The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 3

Striking a Chord in the Quest for Organisational Rights…. . More recent developments are then contextualised within this history The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 4

Striking a Chord in the Quest for Organisational Rights…. . We aim to project a number of messages in exploring the SACCAWU / Woolworths dispute & raise questions around the key issues involved The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 5

Striking a Chord in the Quest for Organisational Rights…. . This is not only about organisational rights but also about the very nature of a new industrial relations order in South Africa, along with the associated vision The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 6

Striking a Chord in the Quest for Organisational Rights…. . Flowing from this is also the future of collective bargaining The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 7

Striking a Chord in the Quest for Organisational Rights…. . The questions raised & issues identified are also placed within the conference theme: Justice on the Job The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 8

Striking a Chord in the Quest for Organisational Rights…. . SACCAWU / Woolworths industrial action 17 Sept 08 – 21 Oct 08 The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 9

Striking a Chord in the Quest for Organisational Rights…. . “The Company and the Union have reached agreement to resolve their organisational rights dispute that resulted in a strike. The parties will enter a verification exercise concluded under the auspices of the CCMA. ” Extract from SACCAWU / Woolworths (Pty) Ltd Settlement Agreement regarding a joint press statement. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 10

Early History o A lengthy, complex and often turbulent history behind the previous statement! o The history goes back to the late seventies and early eighties when SACCAWU (then called CCAWUSA) first started organising union members at Woolworth’s stores. o A formal relationship was established on 10 June 1983 with the establishment of a Recognition Agreement. o The Agreement arose out of a strike in 1982, where the settlement included establishing organisational rights. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 11

Early History – Recognition Agreement established The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 12

Early History – Recognition Agreement o Extensive organisational rights were agreed. o This included stop order facilities, union access and shop steward recognition. o In 1990 agreement was reached on full-time shop stewards as part of a re-negotiation of the Recognition Agreement. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 13

Early History (cont) o The question of sufficient representivity was not a key factor at that stage. o The status quo remained in place until de-recognition of the union by the company in 1999. o Linked to this were unsuccessful legal challenges by the union regarding what constituted an employee. o Thereafter the relationship between Woolworths and SACCAWU progressively deteriorated. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 14

The 2004/5 organisational rights dispute o A referral was made by SACCAWU on 15 December 2004 to resolve a dispute regarding “an acceptable method to prove union membership” in terms of LRA s 64(1), 134. o The first conciliation meeting was held on 18 January 2005 and involved an 8 -week process, including 7 meetings. o The dispute was resolved on 14 March 2005 with a Settlement Agreement. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 15

The 2004/5 organisational rights dispute – Settlement Agreement o If sufficient representivity was established, stop-order and access provisions would be implemented. o Threshold for sufficient representivity pegged at 30%. o During 2006/07 the union submitted subscription forms to the company for verification, but sufficient representation was not established. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 16

The 2008 organisational rights dispute: conciliation process o A referral was made by SACCAWU on 26 February 2008 to resolve a dispute o - regarding trade union access and deduction of trade union subscriptions in terms of LRA s 21(4). o Conciliation was held over 3 months, culminating in the issuing of a certificate of non-resolution on 23 May 2008. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 17

The 2008 organisational rights dispute: conciliation process (cont) The main issues were as follows: o Proof of membership • paid up membership vs signed up membership for verification purposes; • the currency of stop order forms – signed within six months vs no limit on currency; • the interpretation of the SACCAWU constitution regarding requirements for members in good standing; o The threshold to establish sufficient representivity o Calculation of % representivity based on all Woolworths (Pty) Ltd staff, including management vs based on non-managerial staff The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 18

The 2008 organisational rights dispute: conciliation process – mediators’ proposal o Underpinning the dispute was a significant lack of trust, with both parties questioning each other’s bona fides. o A mediators’ proposal was issued to the parties on 26 March 2008. o This included a proposal for a high level process to facilitate dialogue & rules of engagement between the parties as major role players within the Retail Sector & the broader industrial relations community in SA. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 19

The 2008 organisational rights dispute: conciliation process – mediators’ proposal o In exploring a resolution to the dispute, the overall guide should be the provisions of the LRA & in particular, sections 1 (purpose) & 3 (interpretation). The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 20

The 2008 organisational rights dispute: conciliation process (cont) o No agreement reached on the mediators’ proposal. o A certificate of non-resolution issued on 23 May 2008 that entitled the parties to opt for CCMA arbitration or to embark on strike action / lockout. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 21

The 2008 organisational rights dispute: picketing rules & industrial action o SACCAWU referred a dispute to the CCMA in respect of picketing rules on 7 August 2008, with the matter being heard on 11 August 2008. o No agreement reached & a ruling issued directing parties to make certain amendments to a draft set of picketing rules presented at the hearing. o Key finding: “the Union has failed to establish, on a balance of probabilities, that the Employer’s refusal to grant permission to picket inside its Stores was unreasonable, or that the Employer has not acted reasonably in its refusal. ” The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 22

The 2008 organisational rights dispute: picketing rules & industrial action (cont) o A further conciliation hearing was held on 8 September 2008 in an attempt to resolve the dispute. o It was not successful. o An Advisory Award issued proposing settlement of the dispute through a verification exercise facilitated by the CCMA. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 23

The 2008 organisational rights dispute: picketing rules & industrial action (cont) o The union embarked on protected industrial action on 17 September 2008, which continued until 21 October 2008. o During the course of the strike the union brought an urgent application in the Labour Court on 26 September 2008 to compel the CCMA to re-establish picketing rules. o Final outcome of picketing issue was a ruling issued on 14 October 09 making provision for a placard to be displayed at the entrances of the 7 stores in question – advising shoppers of the strike & the location of the picketers. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 24

The 2008 organisational rights dispute: final resolution o The dispute was resolved on 20 October 2008 outside of the CCMA process with a Settle Agreement. o The Agreement included check-off facilities if the union proved that it represented 25% of the Company’s employees & workplace access where the union proved 30% representivity. o ‘Employee’ was defined as “any permanent employee (including flexitimers) of the Company excluding any employee of the distribution centres (UPN) and any (fixed term) contract workers”. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 25

The 2008 organisational rights dispute: final resolution (cont) o A verification exercise provided for & scheduled to start on 27 October 2008. o The currency of stop-order forms addressed: § “the Company will accept, in respect of any properly completed & verified stop-order forms signed after 1 May 2008, that the signatory is a member in good standing of he Union; & in respect of any stop order form signed prior to 1 May 2008, the Union must prove that the signatory is a Union member in good standing, (proof of paid up membership). ” The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 26

The 2008 organisational rights dispute: final resolution (cont) o A joint statement to be placed on notice boards regarding employees who for any reason wished to withdraw their stop order forms. o Return to work scheduled from 24 October 2008. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 27

Post-settlement developments o An extensive verification exercise conducted. o The conclusion was that the union had reached 30% representivity. o On 4 February 2009 an access & stop-order agreement was concluded. o A number of disciplinary enquiries resulted from the industrial action. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 28

Lessons & learnings: Company views (December 2009) o “Woolworths’ position has always been consistent, and still remains that should any union demonstrate current, legitimate, sufficient and effective membership we will not hesitate to grant them the rights provided for in the LRA. o In terms of membership Woolworths’ position has always been: • current membership in good standing • adequate proof • union should be able to organize effectively and act in good faith • verification should be done through a credible process o When analysing the process that gave way to the access and stop order agreement, these were our guiding principles which we maintained. ” The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 29

Lessons & learnings: Company update o Membership figures; Highest August 09 at 28%, currently 25%. o In support of sound ER relationships the implications of the drop in membership numbers as per agreement have not yet been formally raised by the company. o Amendments to the agreement have been negotiated to redefine the salary formula upon which deductions are based from “Gross remuneration” to “Base pay”, improve administration processes between the parties, and lower notice period for access from 7 to 4 days. o Status of the relationship - stable, continued discussion to resolve administration differences, access provisions working well. Meet with officials on a needs driven basis. o Is an example of the legislations intended notion of appropriate rights at appropriate levels of membership. o Disciplinary processes from the strike concluded in the CCMA early 2010. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 30

Lessons & learnings: Union views (December 2009) o Relations between SACCAWU & Woolworths remain poor. o Implementation of the 2 organisational rights has been problematic. An example was an issue regarding the subscription amount deducted. o Picketing Rules issued by the CCMA undermine the right to picket & protected strikes. o Why are organisational rights still an issue in 2009? o Representivity cannot be seen in the same light now due to the informalisation process. Determining thresholds that are not practically possible to achieve is problematic & can result in the union resorting to industrial action instead. o Balloting to determine representivity should be utilised rather than a strike being resorted to. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 31

Analysis of key legal issues 1. Industrial action v arbitration when referring in terms of LRA s 21(4)? o Prior to issuing a certificate of outcome on 23 May 2008 the mediators consulted widely on the above question. o Two main views prevailed: • S 21(7) needs to be read in conjunction with s 65(2)(c). Therefore the applicant may elect to follow the strike or arbitration route, even though referred in terms of s 21. • If the matter is referred in terms of s 21, the matter must go to arbitration in terms of s 21(7). S 65(2)(c) only applies if the matter is referred in terms of s 64. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 32

Analysis of key legal issues Industrial action v arbitration when referring in terms of LRA s 21(4)? (cont) o The outcome of the mediators’ enquiry was to issue a certificate of outcome with both the ‘CCMA Arbitration’ & ‘Strike / Lockout’ blocks of the certificate marked, giving the union the choice involved. o The NUMSA v Bader Bop CC case was also cited on the certificate. o In NUMSA v Bader Bop (Pty) Ltd & Another [2003] 2 BLLR 103 (CC) settled the question whether minority unions are entitled to strike in support of rights conferred by the LRA on majority unions. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 33

Analysis of key legal issues Industrial action v arbitration when referring in terms of LRA s 21(4)? (cont) o The CC held that nothing in part A of Chapter lll of the LRA prevents a minority union to use the ordinary process of collective bargaining & industrial action tp persuade employers to grant organisational rights. o S 21 should be read with s 65(2)(a) in determining a union’s right to opt for strike action instead of arbitration. o S 65(1)(c) provides that a strike is not allowed if the issue in dispute is one that can be referred to arbitration. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 34

Analysis of key legal issues Industrial action v arbitration when referring in terms of LRA s 21(4)? (cont) o S 65(2)(a) provided that – ‘despite section 65(1)(c), a person may take part in a strike or lock-out…. if the issue in dispute is about any matter dealt with in sections 12 to 15’. o A union may thus refer a matter in terms of s 21 despite the fact that post conciliation, they may wish to opt for industrial action. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 35

Analysis of key legal issues 2. Establishing sufficient representivity within current labour market conditions – is a change of approach needed? Trade unions, that are sufficiently representative, are entitled to the following rights: o Trade union access to a workplace [s 12] o Deduction of trade union subscriptions or levies [s 13] o Leave for trade union activities [s 15] The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 36

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) Sufficiently representative is not defined in the LRA. However, the LRA does give some guidance to commissioners in section 21(8), which sets out guidelines for commissioners when considering this question. A commissioner must seek to minimise: o The proliferation of trade union representation in a single workplace, and where possible encourage a system of a representative trade union in a workplace; o The financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 37

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) According to s 21(8)(b) the Commissioner must also consider: o The nature of the workplace; o The nature of the sector in which a workplace is situated; o The nature of the particular organisational rights/s which the trade union is seeking to exercise; and o The organisational history at the workplace or any other workplace of the employer. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 38

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) o Bearing in mind the changing nature of work and the workplace, including the informalisation process, o does this mean that approaches towards the question of sufficient representivity need to be reviewed? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 39

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) o S 21(8)(b)(i) in particular provides for ‘the nature of the workplace’ to be considered when addressing the question of representivity. o Does the application of this provision need to be revisited as part of ‘justice on the job’? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 40

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) Determining whether a trade union is sufficiently representative entails more than just counting the number of trade union members. In SACTWU v Sheraton Textiles (Pty) Ltd, [1997] 5 BLLR 662 (CCMA) the commissioner ruled that a trade union is sufficiently representative if “it can influence negotiations; the financial interests of those engaged in the industry; or peace and stability within the industry or any section of the industry”. A commissioner must have regard to the interests represented by the trade union and not just numerical representativeness of workers. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 41

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) SACCAWU resorted to industrial action in its quest to achieve access & stop order facilities. In retrospect, could an alternative approach by the parties have resolved the matter in a less conflictual manner? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 42

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) In terms of section 19 of the LRA, a registered trade union that is party to a Bargaining Council automatically has the rights of access to all workplaces within the registered scope of the Council (section 12) & are entitled to stop order facilities (section 13). These rights are acquired by being members of a Council that has jurisdiction over the sector and industry and may be exercised regardless of the representivity of the trade union in a particular workplace. Sufficient representivity is required for a Council to be established. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 43

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) What are the implications of the current scenario with regard to the realisation of the primary objects of the LRA and in particular, s 1(c) and (d)? S 1(c) refers to the provision of “a framework within which employees and their trade unions, employers and employers’ organisations” collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest. What are the implications of the current scenario regarding sufficient representivety for the establishment and maintenance of this framework? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 44

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) What are the implications for the realisation of s 1(d): to promote orderly collective bargaining, collective bargaining at sectoral level, employee participation in decision-making in the workplace and the effective resolution of labour disputes? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 45

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) The circumstances of each particular case need to be taken into account & all relevant factors taken into account. Bearing in mind the changing nature of work and the workplace, are there new factors that need to be taken into account when determining sufficient representivity? In retrospect, are there useful learnings that can be drawn from the SACCAWU / Woolworths case? Are there factors to be taken into account from the external labour market environment & the respective roles of the parties? Bearing in mind the primary objects of the LRA, is the question of how to go about recruiting union membership a legitimate factor, along with the associated facilitation or non-facilitation of this? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 46

Analysis of key legal issues Establishing sufficient representivity within current labour market conditions – is a change of approach needed? (cont) What are the implications for ‘justice on the job’ in the determination of sufficient representivity? What does ‘justice on the job’ mean in this context? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 47

Analysis of key legal issues 3. What constitutes proof of membership? o Does the answer to this question purely hinge on the union’s constitutional provisions? o Is it reasonable to require proof of paid up membership in the context of a verification exercise to establish a stop-order facility (where no facility prevails and the implications of this)? o Is currency of the signed stop-order form a factor to reasonably consider? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 48

Analysis of key legal issues What constitutes proof of membership? (cont) o Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union & Others (2009) 30 ILJ 1997 (LAC): regard should be had to the union’s constitution to establish whether the application for membership had been complied with & whether the employee is indeed a member of the union. o What are the implications for ‘justice on the job’? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 49

Analysis of key legal issues 4. Process to determine membership? o S 21(9) refers to determining membership of a registered trade union or support of the registered trade union. o In so doing the commissioner may make any necessary enquiries; where appropriate, conduct a ballot of the relevant employees; & take into account any other relevant information. o What are the most appropriate methods of determining union membership & support? o What impact does this have on ‘justice on the job’? The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 50

Striking a Chord in the Quest for Organisational Rights…. . some suggested conclusions o In determining & deciding on organisational rights, a purposive approach needs to be given emphasis, informed by the constitutional project & the primary objects of the LRA. o The changing nature of work & the workplace needs to be taken fully into account. o All factors need to be taken into account , including the broader environment The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 51

Striking a Chord in the Quest for Organisational Rights…. . some suggested conclusions o This issue stands to materially impact on the broader industrial relations scenario & the direction being pursued in a new IR order. o This includes the exercising of the right to freedom of association & the future of collective bargaining. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 52

Striking a Chord in the Quest for Organisational Rights…. . some suggested conclusions o The s 1(c) framework “within which employees and their trade unions, employers and employers’ organisations collectively bargain” stands to be significantly affected. o The implications for ‘justice on the job’ are significant. The Quest for Organisational Rights. . The SACCAWU/Woolworths Dispute -Aug 2010 53