Informe definitivo - Informe núm. 381, Marzo 2017

Caso núm. 3186 (Sudáfrica) - Fecha de presentación de la queja:: 29-ENE-16 - Cerrado

Allegations: The complainant organization alleges that the rail company refuses to grant the NTM certain trade union rights, as well as collective bargaining rights, notwithstanding the fact that it represents the majority of their employees

1. 76. The complaint is contained in communications from the National Transport Movement (NTM) dated 29 January and 10 February 2016.
2. 77. The Government forwarded its response to the allegations in a communication dated 31 August 2016.
3. 78. South Africa has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 79. In a communication dated 29 January 2016, the complainant organization, the NTM, denounces that the Passenger Rail Agency of South Africa (PRASA), a state-owned company, and the Government, severely trampled on the rights to freedom of association and the rights to collective bargaining of the NTM and its members and flagrantly violated ILO Conventions Nos 87 and 98 by refusing to grant the NTM both organizational rights and collective bargaining rights, notwithstanding the fact that it represents the majority of the employees.
2. 80. The complainant indicates that it had submitted the notice for intention to exercise organizational rights along with 7,058 completed membership forms to management, which received and acknowledged the membership forms in writing. The 7,058 members of the NTM allegedly constitute 54 per cent of the 13,000 employees employed by the company who fall under the bargaining unit. The NTM, like any other registered trade union seeking organizational rights and collective bargaining rights, was required to meet a 19 per cent threshold as set out in the rail company’s Bargaining Forum Constitution.
3. 81. According to the NTM, it made numerous efforts to engage and resolve the aforementioned complaints with the company and the Department of Labour, but to no avail. To this end, memoranda of demands were submitted. The NTM wrote to management on 26 October 2015, but to date has received no response and/or acknowledgement thereof (letter attached to the complaint referring to proof of submission of several NTM stop orders/membership forms acknowledged by management).
4. 82. The complainant adds that, notwithstanding the fact that section 13 of the Labour Relations Act (LRA) provides that the employers are obliged to effect trade union subscription fees deductions upon receipt of the membership forms from a sufficiently representative trade union, the company received the NTM membership forms and opted not to effect trade union subscription fees deductions as allegedly ordered by government officials.
5. 83. The complainant denounces that the former head of the company boasted to the NTM about having been instructed by the Government not to recognize the NTM, having high-level political support in this regard, and told the NTM office bearers that he would advise the Minister of Labour to deregister the NTM as a punishment for the complaints lodged at the Office of the Public Protector, which subsequently found him guilty of the complaints thereof.
6. 84. The complainant alleges that, conversely: (i) the company colluded with the South African Transport and Allied Workers Union (SATAWU) by continuing to deduct subscription fees in favour of SATAWU in the process disregarding and/or refusing to process the resignations which NTM members submitted; and (ii) the company continues to recognize the trade unions that represent a minority of employees such as SATAWU, which has an alliance with the ruling party through the Congress of South African Trade Unions (COSATU) as well as the United National Transport Union (UNTU).
7. 85. The complainant concludes that the refusal to grant the NTM organizational and collective bargaining rights is a baseless and flagrant contravention of both the national and the international labour framework and/or legislation, as the said refusal is based on political considerations. The complainant consequently contends that the company is bound by national labour legislation (section 21 of the LRA), as well as the Constitution of South Africa (article 23) and the ILO Conventions to grant the NTM both organizational and collective bargaining rights. The abuse of powers by the enterprise and the Government is informed by the fact that the State invested over 123 billion South African rand (ZAR) in respect of the renewal of the rolling stock as well as sour grapes deriving from the exposure of corruption in the company.
8. 86. In a communication dated 10 February 2016, the complainant states that the complaint has not been referred to any court of law in South Africa as the Government frustrated and thwarted all efforts on the part of the NTM to resolve the matter.
9. 87. According to the complainant, the company and the Government disregarded the Commission for Conciliation Mediation and Arbitration (CCMA) settlement agreement, under the terms of which the NTM was to be granted organizational rights. Following the Government’s intervention or orders, the company refused to comply with the aforesaid settlement agreement, let alone to recognize the NTM, thereby disregarding the fact that the NTM had submitted 7,058 membership forms to the company, which the complainant states were received and acknowledged in writing.
10. 88. The complainant further alleges that, on 3 February 2016, security officials of the enterprise assaulted Mr John Makaleng, union official of the NTM, for simply performing lawful trade union activities next to the company premises. The said security officials are yet to be arrested notwithstanding the fact that Mr Makaleng opened a criminal case against them.

B. The Government’s reply

1. 89. In a communication dated 31 August 2016, the Government states that article 23(4) of the Constitution of the Republic of South Africa protects the rights of trade unions to determine their own administration, and to form and join a federation. Section 8 of the LRA fits into this framework by specifically providing for the autonomy of trade unions in respect of their organizations, structure and administration. Only a registered trade union can exercise organizational rights in terms of the LRA. The LRA does not compel trade unions to register, but it encourages these coalitions to register. It does this by granting most of the rights set out in the LRA only to registered unions.
2. 90. Organizational rights provide methods by which the trade union can make its influence in the workplace felt, by which the union can recruit members or represent the interest of members. Organizational rights are also important in making it possible for a trade union to establish collective bargaining relations with an employer. To recruit members and to represent their interests, a trade union may need to have access to the employer’s premises to keep in contact with its members (or potential members). The union may also want the employer to deduct trade union subscription directly from the revenue paid to employees, and it may also want to nominate and elect certain employees to represent union interests in the workplace. Another important aspect is that of information: in order to be able to bargain with the employer, the union will need certain types of information.
3. 91. The Government indicates that there are three ways in which a trade union can acquire organizational rights: (i) the union may conclude a collective agreement with the employer in this regard; (ii) a trade union may also obtain organizational rights in respect of an employer’s undertaking because it is a member of a bargaining council or a statutory council; and (iii) organizational rights may also be obtained by using the procedure set out in section 21 of the LRA. According to the Government, the NTM had submitted a notice of intention to exercise organizational rights to the company, which was refused. According to the LRA, if a union requests organizational rights from an employer and the employer refuses to grant all or some of these rights (or agreement cannot be reached on the terms on which the rights will be granted), such union may refer a dispute to the CCMA which will first attempt to obtain the settlement of the dispute through conciliation. If this fails, the CCMA will arbitrate the dispute and issue a binding award.
4. 92. The Government announces that, through the Department’s intervention in this matter, the NTM and the company have subsequently signed a settlement agreement dated 21 July 2016 (attached to the Government’s reply) on the organizational rights. The enterprise has further verified stop order forms submitted by the trade union for deduction of trade union subscriptions and indicated that the granting of organizational rights will further be expedited on the application of establishing a bargaining council that they are currently engaged in. The Government concludes that the complaint to the ILO by the trade union has therefore been overtaken by progressive engagements between the company and the NTM.

C. The Committee’s conclusions

1. 93. The Committee notes that, in the present case, the complainant, the NTM, denounces that the company refuses to grant the NTM certain trade union rights, as well as collective bargaining rights, notwithstanding the fact that it represents the majority of its employees.
2. 94. The Committee notes in particular the complainant’s allegations that: (i) despite representing 54 per cent of the 13,000 employees (7,058 membership forms received and acknowledged in writing by the company) and thus by far meeting the threshold of 19 per cent set out in the rail company’s Bargaining Forum Constitution, the NTM was denied collective bargaining and organizational rights including the right to deduction of union dues, contrary to the LRA; (ii) the numerous efforts made by the NTM to resolve the matter with the company and the Government were to no avail, and the settlement agreement reached by the CCMA through conciliation, under the terms of which the NTM was to be granted organizational rights, was not complied with; (iii) to the contrary, the company colluded with SATAWU, which represents a minority of employees and has an alliance with the ruling party, by continuing to deduct subscription fees in favour of SATAWU disregarding or refusing to process the resignations which NTM members submitted; and (iv) on 3 February 2016, security officials of the company assaulted Mr John Makaleng, an NTM union official, for performing lawful trade union activities next to the enterprise premises, and have not yet been arrested, notwithstanding the fact that Mr Makaleng opened a criminal case.
3. 95. Furthermore, the Committee notes that, without contesting the allegations, the Government indicates that, through its intervention in this matter, the NTM and the company have recently signed a new settlement agreement concerning the organizational rights of the NTM. The Committee observes in this regard that, pursuant to the settlement agreement referred to by the Government, which was reached before the CCMA through arbitration and signed on 21 July 2016, the NTM and its members are to be granted the rights to access to the workplace and to deduction of union dues, following submission by the NTM of membership forms, termination forms and proof of termination served on the previous union. The Committee also notes the Government’s statement that: (i) the company has further verified stop order forms submitted by the NTM for deduction of trade union subscriptions; (ii) the granting of organizational rights will further be expedited on the application of establishing a bargaining council that the parties are currently engaged in; and (iii) the complaint has therefore been overtaken by progressive engagements between the company and the NTM.
4. 96. The Committee recalls that employers, including governmental authorities in the capacity of employers, should recognize, for collective bargaining purposes, the organizations representative of the workers employed by them [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 952]. The Committee further emphasizes that both the government authorities and employers should refrain from any discrimination between trade union organizations, especially as regards recognition of unions who seek to perform legitimate trade union activities. In light of the above, the Committee welcomes the recent positive developments. It trusts that the methodology and outcome of the verification process triggered by the CCMA settlement agreement of 21 July 2016 will allow for the resolution of all pending issues in this case. The Committee expects that, should the relevant representativity threshold be met, the NTM will effectively be granted without delay the corresponding full organizational and collective bargaining rights.
5. 97. Moreover, noting that the Government makes no reference to the alleged assault of an NTM union official on 3 February 2016 by security officials of the company, the Committee expects that the criminal case will conclude rapidly, so as to bring the perpetrators to justice.

The Committee’s recommendations

1. 98. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Welcoming the recent positive developments, the Committee trusts that the methodology and outcome of the verification process triggered by the CCMA settlement agreement of 21 July 2016 will allow for the resolution of all pending issues in this case.
   • (b) The Committee expects that, should the relevant representativity threshold be met, the NTM will effectively be granted without delay the corresponding full organizational and collective bargaining rights at the rail company.
   • (c) The Committee expects that the criminal case concerning the alleged assault of an NTM union official on 3 February 2016 by security officials of the company, will conclude rapidly, so as to bring the perpetrators to justice.