Ask the Doctor – Wed 21 Jan – The Workplace – Do Trade Union have an automatic right to dictate Basic Conditions of Employment ?

Pieter Schoeman writes : I have a small business employing 14 people. Recently a Trade Union was recognized as representing more than 50% of my workforce and have now presented me with a series of demands to change working hours and terms of employment including benefits. Do I have an obligation to give in to them? Can I also ask if I can reward staff who have refused to join a Trade Union with extra benefits, bonuses and privileges?

Pieter, the answer is absolutely not. It is your business and staff are employed on your terms not theirs. As long as you are in-line with the dictates of both the Basic Conditions of Employment Act and also the Labour Relations Act, and if necessary also any Bargaining Council Agreement, which may apply to your Industry you can officially tell the Union to take a hike.

They have a right, within the enabling environment you have created with consistent policy and practice, to represent your workforce but beyond that right they have no automatic right either to be a partner in participatively managing your workplace with you, nor to determine conditions of employment in any shape or form.

On the other hand if your HR practices are out of keeping with any of the pertaining legislation or Bargaining Council Agreement then you have automatically “gifted” your workforce the right to claims against you of unfair labour practices and hence the right to change the way you do things.

If there is a Bargaining Council operating in your Industry, join it now. I can assure you that on-average, a properly functioning workplace offers better salaries and conditions of employment than the averages dictated by any agreement unless your Industries Business Representatives to your Bargaining Council have been asleep, negligent and possibly collusive with the Trade Unions. (Unfortunately this is often true of Business Representatives in many sectors of South Africa’s economy).

Once you are a member of your Bargaining Council you can tell the Union that you subject yourself to and comply with the “Agreement” and that they can go and suck eggs if they think you are going to agree to any terms or conditions over-and-above the dictates of that agreement. You do not need to be civil to them. They are after all leeches who are otherwise unemployable in civil society, and get paid for the amount of trouble they manage to cause in each workplace they have the right to appear in. Their pay is proportionate to the amount of time they spend out of the workplace and on the Industrial Action picket line.

As to your second question Pieter, there is no hard-and-fast rule here. You cannot punish people for joining a Trade Union but what you can do is refuse to deal with all your staff as if there is a closed shop whereby the Trade Union represents all of the workers automatically including those who have not joined it.

So, what I would suggest is that if you want to transparently reward loyalty amongst those who have refused to hunt in packs, ensure that those who are members of a Trade Union are paid and benefitted according to the prevailing codes contained in the prevailing Bargaining Council agreements where they exist and for the balance implement an additional reward system based on merit. It may be that at some stage you are approached by the Trade Union to negotiate for parity amongst the workforce but you are not obliged to give in and agree to that demand.

It is more trcky where a Bargaining Council does not operate in your Industry. In this instance distinguishing between Unionists and Non-Unionists may not allow you to carry that distinction forward to pay and conditions of employment.

However, and again I reiterate, before you take an adversarial approach to Trade Unionists, make sure that you are on the right side both of Labour Law and traditional practices in your Industry. Anything else and you will deserve the wrath that Trade Unionists will manage to ensure rains down on your business.