Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - South Africa (Ratification: 1996)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee takes note of the observations of the International Trade Union Confederation (ITUC), received on 1 September 2022, alleging the refusal of a university to recognise the National Union of Public Service and Allied Workers (NUPSAW) on the account that the NUPSAW was not representative enough, whilst, according to the ITUC, the national legislation does not subject the possibility to negotiate a collective agreement on organizational rights to a prescribed level of representativity. The Committee requests the Government to provide its comments in this respect.

Article 1 of the Convention. Adequate protection of casual workers against anti-union discrimination. In its previous comment, the Committee requested the Government to continue providing information on the cases of anti-union discrimination referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) that may involve workers employed by labour brokers. The Committee takes due note of the information provided by the Government, which highlights the cases before the CCMA pertaining to organizational rights and anti-union discrimination in general. Whilst acknowledging the challenge that may involve the identification of cases brought before the CCMA that concern workers employed by labour brokers, the Committee invites the Government to provide information on any decision or measures taken to ensure the effective protection against anti-union discrimination of this category of workers.

Article 4. Promotion of collective bargaining. Sectors of activity characterized by a high proportion of workers engaged in non-standard forms of employment. The Committee previously requested the Government to continue providing information on the application and impact of the section 21 of the Labour Relations Act, as amended by the Labour Relations Amendment Act, particularly on the coverage of non-standard workers by collective agreements. Regretting the absence of information in this respect, the Committee reiterates its request. The Committee further requests the Government to provide information on the number of collective agreements signed and in force in the country, the sectors concerned as well as the number of workers covered.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 1 of the Convention. Adequate protection of casual workers against anti-union discrimination. In its previous comment, the Committee requested the Government to provide information about the effects of the provisions of the Labour Relations Amendment Act, adopted in August 2014, aimed at better protecting the rights of workers employed by labour brokers. The Committee notes the Government’s information concerning the scope of the protection introduced by the Labour Relations Amendment Act, adopted in 2014. It also notes that the Government indicates that to date, no cases have been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) that deal specifically with anti-union discrimination where casual workers or employees in non-standard work are affected. Recalling that, in its previous comments, it noted the International Trade Union Confederation (ITUC) allegations concerning the difficulties faced by casual workers, especially those employed by labour brokers, joining trade unions because of the fear of not having their fixed-term contracts of employment renewed in case of affiliation, the Committee requests the Government to continue providing information on the cases of anti-union discrimination referred to the CCMA that may involve workers employed by labour brokers.

Article 4. Promotion of collective bargaining. Sectors of activity characterized by a high proportion of workers engaged in non-standard forms of employment. The Committee noted previously that section 21 of the Labour Relations Act, as amended by the Labour Relations Amendment Act adopted in 2014, provides that in case of a dispute about a trade union’s level of representativeness, the decision taken by the commissioner must, in addition to the factors already provided for in the law, also consider the extent to which there are workers engaged in non-standard forms of employment in the corresponding bargaining unit (temporary employment services (labour brokers) employees, employees with fixed-term contracts, part-time employees, or employees in other categories of non-standard employment). The Committee therefore requested the Government to provide information on the application and impact of the mentioned section, especially on the coverage of non-standard workers by collective agreements. The Committee notes the Government’s indication that to date no cases have been reported by the CCMA on the exercise of section 21 rights. It further notes the Government’s statement that the application of section 21 is to be monitored in the future and, in the meantime, a number of bargaining councils have started providing information on the composition of the workforce in their sector, identifying the number of employees assigned to work by temporary employment services. The Government points out that, among these bargaining councils, three (the Building Industry Bargaining Council in the Cape of Good Hope, the Motor Industry Bargaining Council (National), and the Bargaining Council for the Restaurant, Catering and Allied Trades in Gauteng Province) have identified temporary workers within their scope of operation and have collective agreements that cover such workers. The Committee requests the Government to continue providing information on the application and impact of section 21 of the Labour Relations Act, as amended by the Labour Relations Amendment Act, particularly on the coverage of non-standard workers by collective agreements.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2015.

Repetition

Article 1 of the Convention. Adequate protection of casual workers against anti-union discrimination. In its previous comments, the Committee had noted the International Trade Union Confederation (ITUC) allegations concerning the difficulties faced by casual workers, especially those employed by labour brokers, to join trade unions because of the fear of not having their fixed-term contracts of employment renewed in case of affiliation. Noting that the Labour Relations Amendment Act adopted in August 2014 contains provisions aiming at better protecting the rights of workers employed by labour brokers, the Committee requests the Government to provide information about the effects of such provisions on the effective protection of casual workers against acts of anti-union discrimination.

Article 4. Promotion of collective bargaining. Sectors of activity characterized by a high proportion of workers engaged in non-standard forms of employment. The Committee observes that section 21 of the Labour Relations Act, as amended by the Labour Relations Amendment Act adopted in August 2014, provides that, in case of a dispute about a trade union’s level of representativeness, the decision taken by the commissioner must, in addition to the factors already provided for in the law, also consider the extent to which there are workers engaged in non-standard forms of employment in the corresponding bargaining unit (temporary employment services (labour broker) employees, employees with fixed-term contracts, part-time employees, or employees in other categories of non-standard employment). The Committee observes that this provision is aimed at facilitating the capacity of unions to be considered representative, and therefore to engage in collective bargaining, in sectors employing a high proportion of non-standard workers, on the understanding that unions face additional difficulties to recruit these categories of workers. The Committee welcomes this new provision and requests the Government to provide information on its application and impact, especially on the coverage of non-standard workers by collective agreements.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 1 of the Convention. Adequate protection of casual workers against anti-union discrimination. In its previous comments, the Committee had noted the International Trade Union Confederation (ITUC) allegations concerning the difficulties faced by casual workers, especially those employed by labour brokers, to join trade unions because of the fear of not having their fixed-term contracts of employment renewed in case of affiliation. Noting that the Labour Relations Amendment Act adopted in August 2014 contains provisions aiming at better protecting the rights of workers employed by labour brokers, the Committee requests the Government to provide information about the effects of such provisions on the effective protection of casual workers against acts of anti-union discrimination.

Article 4. Promotion of collective bargaining. Sectors of activity characterized by a high proportion of workers engaged in non-standard forms of employment. The Committee observes that section 21 of the Labour Relations Act, as amended by the Labour Relations Amendment Act adopted in August 2014, provides that, in case of a dispute about a trade union’s level of representativeness, the decision taken by the commissioner must, in addition to the factors already provided for in the law, also consider the extent to which there are workers engaged in non-standard forms of employment in the corresponding bargaining unit (temporary employment services (labour broker) employees, employees with fixed-term contracts, part-time employees, or employees in other categories of non-standard employment). The Committee observes that this provision is aimed at facilitating the capacity of unions to be considered representative, and therefore to engage in collective bargaining, in sectors employing a high proportion of non-standard workers, on the understanding that unions face additional difficulties to recruit these categories of workers. The Committee welcomes this new provision and requests the Government to provide information on its application and impact, especially on the coverage of non-standard workers by collective agreements.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the Government’s report and its response to the International Trade Union Confederation’s (ITUC) 2010 comments.

The Committee notes the ITUC’s communications of 4 August 2011 and 31 July 2012. The Committee requests the Government to send its observations on these comments. The Committee notes that a study on identifying obstacles faced by trade unions organizing in farms has been commissioned by the Government, and that another study on facilitating unionization of farm workers has been conducted by the ILO. The Government hopes that these studies will help improve collective bargaining in the agricultural sector. The Committee welcomes this information and requests to provide information on developments in this regard.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee takes note of the Government’s report. The Committee also notes the communication dated 24 August 2010 from the International Trade Union Confederation (ITUC) concerning anti-union discrimination acts and obstacles to collective bargaining. The Committee requests the Government to provide its observations on the matters raised by the ITUC.

In its previous comments, the Committee requested the Government to provide more specific information on the level of trade union membership in the agricultural sector, as well as the number of collective agreements concluded in that sector and their coverage. The Government states that according to the Statistics South Africa Quarterly Labour Force Survey of 2009, there are 710,000 employees in the agricultural sector. However, it is one of the less organized sectors due to the difficulty experienced by trade unions in accessing members and potential members, and due to the number of small trade unions that try to operate. As a result, there are 106,500 unionized employees in the agricultural sector, which gives a 15 per cent trade union membership. The Government adds that there is no information available on existing collective agreements in the agricultural sector since it is most likely that agreements are negotiated at company and farm level. Finally, the Government refers to the fact that in order to protect vulnerable workers in the sector, minimum wages and conditions of employment are set on an annual basis under the framework of the Basic Conditions of Employment Act (Act No. 5 of 1997). The Committee takes note of this information and encourages the Government to promote collective bargaining in the agricultural sector and to endeavour to collect data on collective agreements in the sector and the number of workers covered.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

In its previous comments, the Committee requested the Government to send its observations on the comments made by the International Trade Union Confederation (ITUC), with regard to difficulties in organizing in the agricultural sector. The Committee notes that the Government’s report contains information on the provisions of the Labour Relations Act which confer upon trade union representatives a number of facilities including the entitlement to enter the employers’ premises in order to recruit members or communicate with them. The Government also refers to the mechanism for dispute resolution emanating from the application of this right, as well as, more generally, the national provisions concerning the application of the Convention (protection against anti-union discrimination and interference, promotion of collective bargaining). The Committee requests the Government to indicate in its next report more specific information on trade union membership density in the agricultural sector as well as the number of collective agreements concluded in that sector and their coverage.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the comments made by the International Confederation of Free Trade Unions (ICFTU), in a communication dated 10 August 2006, which concerns the difficulty in organizing in the agricultural sector and the fact that workers who try to form or join trade unions are faced with intimidation, violence and dismissal. The Committee requests the Government to send its observations on these comments.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee takes note of the information provided on the Public Service Coordinating Bargaining Council newly established under section 36 of the Labour Relations Act, 1995 (No. 66 of 1995). It notes that this Council has designated three sectors of the Public Service in which bargaining councils shall be established.

The Committee asks the Government to provide information on the number of collective agreements concluded in the Public Service, and the number of workers covered. The Committee also requests the Government to furnish information regarding the dispute resolution system and the number and the type of cases dealt with.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee takes note of the information provided on the Public Service Coordinating Bargaining Council newly established under section 36 of the Labour Relations Act, 1995 (No. 66 of 1995). It notes that this Council has designated three sectors of the Public Service in which bargaining councils shall be established.

The Committee asks the Government to provide information on the number of collective agreements concluded in the Public Service, and the number of workers covered. The Committee also requests the Government to furnish information regarding the dispute resolution system and the number and the type of cases dealt with.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the first report supplied by the Government and, in particular, the extensive legislative changes.

The Committee notes that the Labour Relations Act, 1995 establishes, inter alia, a Public Service Coordinating Bargaining Council. The Committee requests the Government to provide, in the next report, information on the application in practice of the provisions concerning the bargaining councils in the public service.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's first report, as well as the Constitution of the Republic of South Africa (Act No. 108 of 1996), and the Labour Relations Act (Act No. 66 of 1995) attached thereto. The Committee notes with satisfaction that further to the recommendations made by the Fact-finding and Conciliation Commission on Freedom of Association (see Prelude to change: Industrial relations reform in South Africa, Official Bulletin, Special Supplement, 1992), the Labour Relations Act, 1995, constitutes a considerable improvement over the previous legislation. In particular, the Committee welcomes the fact that the Labour Relations Act, 1995, has broad coverage, including civil servants and rural workers within its scope. The Act does not contemplate the possibility for the authorities to modify the contents of freely concluded agreements, nor for them to exclude certain areas or classes of work from the agreements; and contains a number of guarantees and facilities for the voluntary collective bargaining process.