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Labour Relations Act, 1995

Chapter III : Collective Bargaining

Part B : Collective Agreements

26. Closed shop agreements

 

 

(1) A representative trade union and an employer or employers' organisation may conclude a collective agreement, to be known as a closed shop agreement, requiring all employees covered by the agreement to be members of the trade union.

 

(2) For the purposes of this section, "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, whose members are a majority of the employees employed :
(a) by an employer in a workplace; or
(b) by the members of an employers' organisation in a sector and area in respect of which the closed shop agreement applies.

 

(3) A closed shop agreement is binding only if:
(a) a ballot has been held of the employees to be covered by the agreement;
(b) two thirds of the employees who voted have voted in favour of the agreement;
(c) there is no provision in the agreement requiring membership of the representative trade union before employment commences; and
(d) it provides that no membership subscription or levy deducted may be:
(i) paid to a political party as an affiliation fee;
(ii) contributed in cash or kind to a political party or a person standing for election to any political office; or
(iii) used for any expenditure that does not advance or protect the Socio-economic interests of employees.

 

(4) Despite subsection (3)(b), a closed shop agreement contemplated in subsection (2)(b) may be concluded between a registered trade union and a registered employers' organisation in respect of a sector and area to become binding in every workplace in which:
(a) a ballot has been held of the employees to be covered by the agreement; and
(b) two thirds of the employees who voted have voted in favour of the agreement.

 

(5) No trade union that is party to a closed shop agreement may refuse an employee membership or expel an employee from the trade union unless :
(a) the refusal or expulsion is in accordance with the trade union's constitution; and
(b) the reason for the refusal or expulsion is fair, including, but not limited to, conduct that undermines the trade union's collective exercise of its rights.

 

(6) It is not unfair to dismiss an employee:
(a) for refusing to join a trade union party to a closed shop agreement;
(b) who is refused membership of a trade union party to a closed shop agreement if the refusal is in accordance with the provisions of subsection (5); or
(c) who is expelled from a trade union party to a closed shop agreement if the expulsion is in accordance with the provisions of subsection (5).

 

(7) Despite subsection (6):
(a) the employees at the time a closed shop agreement takes effect may not be dismissed for refusing to join a trade union party to the agreement; and
(b) employees may not be dismissed for refusing to join a trade union party to the agreement on grounds of conscientious objection.

 

(8) The employees referred to in subsection (7) may be required by the closed shop agreement to pay an agreed agency fee, in which case the provisions of section 25(3)(b), (c) and (d) and (4) to (7) apply.

 

(9) If the Labour Court decides that a dismissal is unfair because the refusal of membership of or the expulsion from a trade union party to a closed shop agreement was unfair, the provisions of Chapter VIII apply, except that any order of compensation in terms of that Chapter must be made against the trade union.

 

(10) A registered trade union that represents a significant interest in, or a substantial number of, the employees covered by a closed shop agreement may notify the parties to the agreement of its intention to apply to become a party to the agreement and, within 30 days of the notice, the employer must convene a meeting of the parties and the registered trade union in order to consider the application.

 

(11) If the parties to a closed shop agreement do not admit the registered trade union as a party, the trade union may refer the dispute in writing to the Commission.

 

(12) The registered trade union must satisfy the Commission that a copy of the referral has been served on all the parties to the closed shop agreement.

 

(13) The Commission must attempt to resolve the dispute through conciliation.

 

(14) If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

 

(15) The representative trade union must conduct a ballot of the employees covered by the closed shop agreement to determine whether the agreement should be terminated if :
(a) one third of the employees covered by the agreement sign a petition calling for the termination of the agreement; and
(b) three years have elapsed since the date on which the agreement commenced or the last ballot was conducted in terms of this section.

 

(16) If a majority of the employees who voted, have voted to terminate the closed shop agreement, the agreement will terminate.

 

(17) Unless a collective agreement provides otherwise, the ballot referred to in subsections (3)(a) and (15) must be conducted in accordance with the guidelines published by the Commission.