The effect of the principle of majoritarianism on the rights of minority trade unions to organise and engage in collective bargaining

Abstract

The main feature of the LRA is that it promotes the principle of majoritarianism and confers clear advantages on majority unions. The majoritarian principle enables a trade union with a majority in the workplace to prevail over minority unions and their members as well as non-unionised employees and to limit some of the minority’s rights, including the right to obtain organisational rights and to strike. Section 18 of the LRA allows a majority union and the employer to put a numerical figure to the concept of ‘sufficient representativity’, which provides certainty to both employers and unions on what defines a sufficiently representative union. Secondly, section 23(1)(d) read in conjunction with section 65(3) of the LRA, imposes severe restrictions on minority trade unions. It prohibits striking by anyone bound by a collective agreement regulating the issue in dispute by means of limiting the right to strike of employees who are not members of the union party to the collective agreement.

The LRA has been criticized for favouring trade unions with majority membership and granting special benefits to unions with majority support at the establishment or industry level. It is within this context that the study examines the effect of the principle of majoritarianism on the constitutionally entrenched right of every trade union to strike, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. Moreover, this study explores the justifiability of the impact of sections 18 and 23(1)(d) of the LRA on minority trade unions in terms of the Constitution of the Republic of South Africa, 1996 and labour standards.