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Labour Unions

By Ojasw singh | Views 8221

Introduction

A number of ILO instruments recognise the need of upholding freedom of association.
E.g is the Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention No.87)
Right to associate has been a concern of international organizations and is seen as a basic right of workers in a democratic society.
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Art.2 of Convention No. 87 provides that;
- Workers without distinction shall have the right to establish and, subject only to the rules of the organization concerned, to join organisations of their own choosing without previous authorization
The preamble to the ILO Constitution records that the principle of freedom of association is among the means of improving the conditions of workers and ensuring peace.
Generally Convention No. 87 provides for following principles:
- Everyone is entitled to freedom of association
- The absence of the need for previous authorization to establish organization
- Freedom of choice with regard to the membership of such organizations
- The right to participate in the lawful Activities of the organisation subject only to its own rules.
Freedom of association is also a subject of a number of other international human rights instruments.
- For instance, Art.20(1) of the Universal Declaration of Human Rights, 1948 states that each individual has the right to freedom of peaceful assembly and association.
Our Constitution has incorporated this right under Art. 20
So it can simply be said that this right is constitutionally guaranteed.
Reflection in Labour Law
Freedom of Association is provided for under ss. 9 to 11 of the ELRA.
S. 9 provides for the right of the employees to form and join trade union as well as participating in lawful activities of the trade union
S. 10 provides that every employer shall have the right to form and join as well as participating in lawful activities of the Employers' Association.
The two provisions prohibits discrimination on either the employee or the employer on the basis that such an employee or employer has exercises the right provided for under sections 9 and 10
Section 11 of the ELRA provides for the rights of the trade union and employers association which includes the right to:
- determine its own constitution
- plan and organise its administration and lawful acts
- Join and form a federation
- Participate in the lawful acts of the federation
- Affiliate with, and participate in the affairs of any international workers' organisation or international employers' organisation or the International Labour Organisation, and to contribute to, or receive financial assistance from those organisations
Trade Unions
The term Trade Union is defined under section 4 of the Act to mean:
- Any number of employees associated together for the purpose, whether by itself or with other purposes, of regulating relations between employees and their employers or the employers' associations to which the employees belong.
As per s.9(2) there are limitations relating to membership in Trade Unions to some of employees like:
- Magistrates
- Prosecutors
- Senior management employees
The Act prohibits discrimination against an employee on the grounds relating to his participation or past participation in affairs of Trade Union-see s.9(3) & (4)
A Trade Union has to be registered within 6months of its establishment-s.45(1) of ELRA.
- It is an offence for a trade union to operate without being registered six months after its establishment.
Requirements for registration of a trade union are:
- It is a bonafide trade union;
- It is an association not for gain;
- It is independent of any employer or employer's association;
- It has been established at a meeting of at least 20employees;
- It has adopted a constitution and rules that comply with provisions of s.47
- It has adopted a name that does not resemble the name of another union so as to mislead or create confusion; and
- It has an address in the URT.
The requirements for registration of a federation are almost the same to those of a trade union except that:
- The meeting of its establishment should have at least five registered organizations; and
- That it should comprise of only registered organizations
S.47 sets out necessary matters to be included in the Constitution of any trade union, employers' association or federation.
There are limitation as to contents of the Constitution of a registered organization that:
- Should not conflict with the rights and duties set out in The CURT, 1977;
- Should not conflict with the ELRA or any other written law; or
- Evade any obligation imposed by any law
Regardless of the registration to a federation as per s.45(2) of ELRA, a Trade Union may also apply for registration to the Registrar-s.48(1) of ELRA.
S.4 of ELRA defines the Registrar to mean the Registrar appointed under s.43(2) of the LIA, 2004
- The Registrar is responsible for the regulation of trade unions, employer organizations and federations.
Effect of registration
An organisation or federation, upon registration, shall be a body corporate:
- With perpetual succession and a common seal;'
- With the capacity to sue or being sued, enter into a contract, etc-see s.49
- No one shall be liable because of his/her obligations in the trade union or organization
The functions of the Trade Union are stipulated under s.62(4) of ELRA
Employers' Associations
Just like employees, employers have a right to freedom of association.
By virtue of s.45(1) employers may also establish their own association and register it with the employers' federation and the Registrar of organizations.
Requirements for registration of employers' association are provided for under s.46(2)
- There should be at least a minimum number of four employers in a meeting establishing employers' association.
Organizational rights
In order to enjoy or exercise the rights provided under PART V of the ELRA a trade union should be registered.
A registered trade union enjoys the following organizational rights:
- Right to get access to the workplace/employer's premises-s.60'
- Right to receive deductions or trade union's subscriptions or levies-s.61
- Right to have representatives of the employees interests-s.62
Trade Union representatives have the functions provided under s.62(4) of ELRA.
- Right to be granted paid leave to attend various affairs of the trade union-s.63
- Right to ask/request the employer to disclose certain information in order to facilitate effective carrying of trade union's duties-s.70
In case of any breach of the terms and conditions of exercising organizational rights, employer may pursue the remedies provided for under s.65 of the ELRA.
Acquisition of Organizational rights
A registered trade union can acquire any of the organizational rights provided in the law by:
- Notifying the employer on the need to exercise any of the right;
- Concluding a collective agreement with the employer on the manner of exercising such right;
- If the employer fails to meet such demands, refer the dispute to CCMA for mediation
- If the mediation fails, refer the matter to Labour Court
Termination of Organizational Rights
Where there is a material breach of the terms and conditions of exercising organizational rights, the employer may:
- Refer the matter to CMA
- If mediation fails, may apply to the Labour Court
Powers of the Labour court in respect of this application are set under s.65(2) of ELRA
Collective Bargaining
Collective bargaining has been described as:
- A process in which workers and employers make claims upon each other and resolve them through a process of negotiation leading to collective agreements that are mutually beneficial.
- In the process different interests are reconciled. For workers, joining together allows them to have a more balance relationship with their employer.
- It also provides a mechanism for negotiating a fair share of the results of their work, with due respect for the position of the enterprise or public service in which they are employed.
- For employers, free association enables firms to ensure that competition is constructive, fair and based on a collaborative effort to raise productivity and conditions of work.
This meaning is according to the ILO Report on Social Justice (2004)
The Supreme Court of Canada in Health Services & Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 SCR 391 stated that
- Right to collective bargaining concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment.
S.4 of the ELRA defines collective agreement to mean a written agreement concluded by a registered trade union and an employer or registered employers' association on any labour matter.
PART VI of the ELRA provides for provisions relating to collective bargaining process in Tanzania.
Bargaining process
Bargaining process involves a registered trade union which has acquired recognition by the employer by virtue of s.67 of ELRA and the employer or registered employers' association.
Trade unions may act jointly in bargaining process if the interests of their employees are common.
If the employer refuses to recognize a registered trade union which has majority of the employees as an exclusive bargaining agent, the trade union may;
- Refer the matter to the CCMA for mediation
- If the mediation fails, then refer the dispute to the Labour Court for decision.
Procedures of Acquiring Recognition
A registered trade union having majority of employees is entitled to be recognised by the employer as an exclusive bargaining agent
Procedures for a trade union to be recognised as an exclusive bargaining agent are provided under s. 67 of ELRA read together with Rule 51 of its Code of Good practice.
Rule 50(2) of the ELRA Code of Good Practice states the purposes of having a recognised trade union
Refusal of recognition
The employer may refuse to recognize a trade union as an exclusive bargaining agent if:
- The union does not represent a majority of the employees
- No agreement between the two on the appropriate bargaining unit
- The Labour Court has authorised withdrawal of recognition-s.69 of ELRA
- The employees are members of the senior management-Read Rule 51(5) of the Code.
A dispute over recognition can be referred to the CMA and if it fails, the matter can be referred to the Labour Court-s.67 read together with Rule 51 of the ELRA Code of Good Practice.
The Labour Court may order for:
- An opportunity to get more employees to become representative;
- Altering bargaining unit;
- Suspending recognition for a period of time;
- Withdrawing recognition;
Duty to bargain in good faith
There is a general duty upon both employer or employers association and registered trade union to bargain in good faith.
This duty is provided for under s.68 of the ELRA and Rule 54 of the ELRA Code of Good Practice.
This duty entails that the parties to the bargaining process should strive to achieve the best to their interests by trying to reconcile their different interests without jeopardizing genuine interests one another.
In order to be consistent with duty to bargain in good faith a conduct has:
- To be respecting representative of the parties
- Preparation, in advance, for negotiations
- To be consistent in negotiation process
- Attending meetings timely
- Motivating proposals made
- Considering proposals made by the other party or give reasons for refusal-see Rule 54(2) of the ELRA Code of Good Practice.
The legal effects of a Collective agreement
A collective agreement shall be in writing and signed by the parties to it-s.71(1) of ELRA
The agreement shall be binding upon;
- Parties to the agreement
- Their members
- Any other employee if the trade union is recognised as an exclusive bargaining agent
Agency and Closed shop agreements
The law in Tanzania does not enforce closed shop agreements-s.72 of ELRA.
An agency shop agreement is such an agreement by which members are not compelled to become members of the trade union even though an agency fee is deducted from their wages.
A closed shop agreement is such an agreement for which all employees who are covered by the collective agreement must be or must become members of the trade union.
Disputes concerning Collective Bargaining
Any dispute relating to application, interpretation, or implementation of a collective agreement shall be referred to the Commission for mediation
- In event the mediation fails, any party to the dispute may refer the matter to the Labour Court for decision.
- Read s.74 of ELRA.