Duty to Bargain
Minister of Defence v SANDU and others 2007 (4) BCLR 398 (SCA)
The Supreme Court of Appeal had to decide whether there was a legal enforceable duty on the South African National Defence Force as the employer to bargain collectively with the military trade union and if there was such a duty and the employer unfairly refused to bargain, whether the military trade union was entitled to interdict to prevent restructuring of the defence force pending decision by the Military Arbitration Board.
The expression ‘right to engage in collective bargaining’ in section 23 subsection (5) of the bill of rights is open to more than one interpretation.
It may mean that the contemplated national legislation to regulate collective bargaining must provide for an employer or a union called upon to bargain to comply with the demand on pain of being ordered to do so.
On the other hand it may mean that the envisaged national legislation must provide the framework within which employers, employers’ organisations and employees may bargain; or it may mean no more than that no legislative or other governmental act may effectively prohibit collective bargaining.
SANDU v Minister of Defence 2006 11 BLLR 1043 (SCA)) in the SANDU case (par 55): [I]t should be noted that were section 23(5) to establish a justiciable duty to bargain, enforceable by either employers or unions outside of a legislative framework to regulate that duty, Courts may be drawn into a range of controversial industrial relations issues.
In NEWU v Leonard Dingler (Pty) Ltd 2011 7 BLLR 706 (LC):
The Labour Court expressly held that an employer is not obliged to bargain with a union.
Parties therefore remain free to make use of industrial action in order to enforce their demands in this regard (that is in respect of, for example, a refusal to recognise a trade union or to agree to the establishment of a bargaining council, the withdrawal of recognition of a collective bargaining agent, resignation from a bargaining council, and disputes about appropriate bargaining units, bargaining levels, or bargaining subjects).
However, the LRA does impose a procedural constraint in the event of such a dispute: a party may only give notice of industrial action once an advisory arbitration award has been obtained (see s 64(2) LRA).
By Ubuntu Resource Management