- The aim of an agency shop is to ensure that non-union employees, who nevertheless benefit from the union’s bargaining efforts, make a contribution towards those efforts.
- Closed shop agreements have a similar aim to agency shop agreements, but compel non-union members to join the union or face dismissal.
- The right of employees to join trade unions of their choice is an integral part of the general right to freedom of association. These rights are guaranteed in the South African Constitution and Labour Relations Act of 1995 (as amended).
- Majority unions are now vigorously applying these agreements (especially agency shop) to apply to members of minority unions who may be sufficiently representative. Minority unions are thus prejudiced to the extent that their existence in certain workplaces or sectors is being threatened.
- Of greater concern is the setting of alarmingly high thresholds which affects many unions.
- Only a majority union (or unions which jointly have a majority of employees as members) in a workplace or sector can establish an agency shop agreement with an employer or employer’s organisation.
- A ballot must be conducted whereby two thirds of the employees at the workplace who vote, must support the establishment of a closed shop agreement. Practically speaking, this means that members of minority unions who are not parties to such agreements must choose either to pay subscriptions both to their minority union and the majority one, or have sole membership of the latter.
- Section 18(1) of the Labour Relations Act empowers an employer and a majority union, or the parties to a bargaining council, to conclude a collective agreement establishing their own threshold.
- Section 23(1)(d) of the LRA allows employers and majority unions to extend collective agreements entered into by them to employees who are not members of the majority union (which could obviously include members of a minority union), provided only that those employees are expressly identified in the agreement and that it is expressly made binding on them. This has significant implications for minority unions.
- challenge the legality of such agreements; OR
- encourage affiliated unions in the same sector or workplace to “fight back” and jointly form agency shop or closed shop agreements; OR
- encourage affiliated unions in the same sectors to act together to meet the relevant thresholds.
Closed shop agreements
A closed shop agreement makes it obligatory for all employees covered by the scope of the agreement to belong to a majority trade union. CONSAWU should challenge this on the basis of the following:
- It contravenes freedom of choice and association.
- It contradicts the principle of democratic participation.
- It promotes monopoly, which is a capitalist tendency.
- It diminishes the chances of survival of smaller unions.
CONSAWU should not enforce closed shop agreements, even where it has the capacity to do so in any particular economic sector, since this will lead to contradiction of a principle.
Agency shop agreements
Agency shop agreements are different from closed shop agreements in the sense that they do not directly compel workers to join a particular trade union. CONSAWU believes it is unfair for workers who do not belong to trade unions to continue to enjoy the benefits derived from the work of trade unions and their members.
CONSAWU should support agency shop agreements on conditions that:
- thresholds are not set at unnecessarily high levels;
- fees for such agency shops are not set too high;
- effective monitoring mechanisms are put in place to ensure full compliance with the guidelines set out in the LRA in terms of utilisation of such fees.
CONSAWU encourages its affiliates operating in the same sector to merge or act together for the purposes of meeting the thresholds, as well as for various other purposes.
Members of a trade union must not be made to pay dual fees for union and agency shop fees.