National Tertiary Education Union ('NTEU') v Tshwane University of Technology and Another - (23 Mar 2017)

Right of a union to engage in collective bargaining is not an incident of right of freedom of association

Labour and Industrial

Applicant in instant matter, an academic and staff union (‘NTEU’), applied for urgent interim relief suspending Clause 5 of collective agreement between Tshwane University of Technology (‘TUT’) and NEHAWU (‘the substantive agreement’), pending conclusion of a recognition agreement between NTEU and TUT which recognises its organisational rights, re-admission of NTEU to TUT Bargaining Forum (‘TBF’) and negotiation and consideration of Applicant’s submissions at a meeting of TBF. Failing successful conclusion of such negotiations, NTEU seeks suspension of Clause 5 of collective agreement pending finalisation of a dispute concerning interpretation and application of Clause 5 of collective agreement.

Clause 5 of substantive agreement relates Post Retirement Medical Aid Benefits. Parties acknowledge the financial burden that this benefit places on University and agreed to terminate benefit in 30 days from signing for employees who fall within bargaining unit. University would initiate appropriate processes with an intention of terminating benefit of other beneficiaries not falling within bargaining unit and ensure that such processes are completed within 90 days of date of signing of this agreement.

NTEU launched its application the day after TUT refused to admit it to forum, giving TUT two days to file an answering affidavit. Union claims the matter is urgent because members’ post-retirement medical benefit was due to terminate on 13 February 2017. It claimed its members who stood to lose post-retirement medical benefits would suffer irreparable harm, if new substantive agreement is implemented in circumstances where it has been deprived of opportunity to represent its members’ interests on issue in substantive negotiations.

NTEU only could have known of imminent harm posed to its members’ post-retirement medical benefits on 16th January, 2017. Contention by TUT that, union could have foreseen this because NEHAWU had tabled such a demand in August, 2016, is absurd. Mere tabling of a demand does not mean that, demand will necessarily form part of a concluded agreement. It was only on 23rd January, 2017 that TUT responded to NTEU’s demand to suspend implementation of clause 5. NTEU should have launched application within a week of receiving this response to beat deadline of 13th February, 2017, when cessation of medical benefits was due to take effect.

Right of employees to freedom of association is not same as right of unions to engage in collective bargaining. Organisational rights which inter alia promote exercise of right to freedom of association are: right to have access to workplace, which includes communication with members and holding of meetings with employees; right to deduction of membership fees from wages, and right to be represented in disciplinary and grievance proceedings by a shop steward. Rights of employees to participate in union activities are expressly protected by Section 4 of Labour Relations Act 66 of 1995 (LRA) and reinforced by prohibitions against victimisation in Section 5.

However, right of a union to engage in collective bargaining is not an incident of right of freedom of association even if latter right is a necessary pre-condition for genuine collective bargaining. LRA provides support for institution of collective bargaining and avails unions of right to strike to allow them to bring economic power to bear on bargaining process, but LRA does not bestow a legal entitlement on a union, to a seat at bargaining table unless, it has attained bargaining rights by agreement with the employer or unless it is entitled to be granted such rights in terms of an existing collective agreement, which affords collective bargaining rights to any union satisfying stipulated membership thresholds.

Difficulty NTEU faces is that, at time the prejudicial substantive agreement was concluded, it was not entitled to exercise collective bargaining rights, it had formerly attained under the TBF, because it fell below thresholds for bargaining representation which it had accepted. Fact that it subsequently recovered its membership status and would now appear to be eligible to re-join TBF does not mean the Court can rewind negotiations so that they can recommence. What matters was NTEU’s collective bargaining status at the time the agreement was concluded. NTEU has not demonstrated a prima facie right to interim relief. In absence of NTEU being able to demonstrate existence of a prima facie right, application failed and consequently it is not necessary to decide if any other pre-conditions for urgent relief have been met.

Tags : COLLECTIVE BARGAINING RIGHT PARTICIPATION