Informe definitivo - Informe núm. 397, Marzo 2022

1. 40. The complaint is contained in a communication dated 31 August 2020 from the National Transport Movement (NTM).
2. 41. The Government provides its observations in a communication dated 21 January 2021.
3. 42. South Africa has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 43. In its communication dated 31 August 2020, the complainant denounces the refusal by the Government and the Passenger Rail Agency of South Africa (PRASA), a state-owned entity under the Minister of Transport (hereinafter “the company”), to comply with a settlement agreement and a court decision, granting the complainant certain organizational rights, namely access to the workplace and deduction of trade union subscriptions.
2. 44. The complainant provides the court decision, which summarizes the background to the dispute as follows: (i) in January 2016, the NTM provided the company with written notice seeking to exercise certain organizational rights and proposed a meeting to conclude a collective agreement, but the meeting did not take place; (ii) the NTM referred the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), where the dispute was first unsuccessfully conciliated and then referred to arbitration, resulting in a settlement agreement dated 21 July 2016; (iii) the parties agreed that the NTM would submit membership forms, termination forms and prove that the termination was served on the previous union and that the company would grant the complainant the rights contemplated in sections 12(1) and 13 of the Labour Relations Act (LRA) (access to the workplace and deduction of trade union subscriptions); and (iv) the complainant submitted 7,058 membership forms depicting workers’ resignation from other unions but the company argued that it could only verify that 1,314 employees were NTM members since other forms were duplicated or contained errors.
3. 45. The complainant contends that although the company agreed to grant the NTM organizational rights in terms of the settlement agreement, it was politically instructed by the Department of Transport not to comply with the agreement. Even though the union made numerous efforts to resolve the dispute, including through the local ILO Office, the company still refused to comply with the settlement agreement. The NTM therefore filed an application before the Labour Court, which, through its December 2018 decision, made the settlement agreement into a court order. The court also opined, with regard to access to the workplace, that the company granted the NTM access to the workplace through the conclusion of the settlement agreement and that the union did not need to show sufficient representativity, contrary to what was put forward by the company, since the union was not requesting to be admitted to the company’s bargaining forum. As for deduction of union subscriptions, the court considered that irrespective of the number of membership forms received and verified by the company (a dispute which did not, in the court’s view, need resolving at that point), it is obliged to make deductions, as long as the membership forms allow for such deductions. The complainant alleges that despite the court order, the company still refuses to grant it access to the workplace and to deduct trade union subscriptions and therefore flagrantly refuses to comply with the court.

B. The Government’s reply

1. 46. In its communication dated 21 January 2021, the Government informs that in January 2016, the NTM delivered a notice to the company indicating that it had recruited 54 per cent of the company’s employees nationwide and requested organizational rights. However, the company could not reconcile this claim since the NTM failed to furnish evidence in this regard and two other unions already accounted for 87 per cent of the company’s workforce. The NTM is therefore currently not recognized by the company as having collective bargaining rights or powers under the LRA. The Government states that the dispute between the company and the complainant was addressed through conciliation and arbitration at the CCMA, as a result of which the parties entered into a settlement agreement in July 2016, stipulating that the NTM would submit membership forms, termination forms and prove that the termination was served on the previous union and that the company would grant access to the workplace, as well as deductions of trade union subscriptions. The complainant made an application to the Labour Court to make the settlement agreement an order of the court, which was granted in its December 2018 judgment. The Government adds that besides its decision, the court made various obiter dicta to the effect that the complainant should be granted access to the workplace and the company should deduct trade union subscriptions, as agreed in the settlement agreement, since these rights are not dependent on proof of the union’s sufficient representativity.
2. 47. The Government further indicates that in January 2019, the union addressed a letter to the company alleging that it was in contempt of the court order for failing to allow the union access to the workplace and to deduct its members’ subscription fees. The company replied by claiming that: (i) the court did not determine whether the company should grant access to the workplace and deduct union subscription fees, since the judge’s view in relation to the nature and sanctity of the settlement agreement is obiter dictum, not binding on the company; and (ii) in terms of the settlement agreement, the complainant must first submit itself to a membership scoping exercise before it can be granted access to the workplace and be entitled to the deduction of subscriptions. In April 2019, the union filed a contempt of court application against the company, which is yet to be determined.
3. 48. The Government also elaborates on the exchanges between the parties, indicating that between January and March 2019, the complainant submitted certain membership and termination forms to the company for the purpose of processing and deducting subscription fees and the parties convened a meeting to discuss their respective obligations arising from the settlement agreement. However, when considering the membership and termination forms, the company noted discrepancies and initiated verification proceedings before the CCMA, to which the NTM objected, pointing out that the CCMA lacked jurisdiction to overrule itself, as it had already settled the matter and that the settlement agreement had been made an order of the court. Between October 2019 and July 2020, further discussions took place between the complainant and the company to conduct a verification process, without any significant results. The company asserts that the process has not yet been concluded due to the union’s non-cooperation and its numerous contempt of court applications.

C. The Committee’s conclusions

1. 49. The Committee recalls that the present case concerns allegations of the refusal by the Government and the state-owned railway company to comply with a settlement agreement and a subsequent court order, granting the complainant access to the workplace and deduction of trade union membership fees. It further recalls that these concerns are being raised in sequence to the dispute between the complainant and the company in which the union sought full organizational and collective bargaining rights, previously examined by the Committee in Case No. 3186 [see 381st Report, March 2017, paras 76–98]. The Committee observes that, in that case, it had welcomed the conclusion of the 2016 settlement agreement, as well as the subsequent progressive engagements of the complainant and the company, which the Government indicated had overtaken events leading to the complaint.
2. 50. The Committee observes that while it welcomed the 2016 settlement agreement in its previous examination, it was not called upon to consider the issues raised therein as they were not called into question by the company. The Committee observes that the current complaint before it alleges the non-implementation of the provisions of that agreement, despite the Labour Court declaring it a court order, and its impact on the basic organizational rights of the complainant organization. While noting that the facts leading to the case are not disputed by the parties, the Committee observes that they have differing opinions on the actual interpretation to be given to the content of the settlement agreement and on whether these basic organizational rights should be granted to the complainant, and if so, under which conditions. While the complainant alleges that the company had agreed to grant it access to the workplace and deduction of trade union subscriptions through the conclusion of the 2016 settlement agreement but failed to comply with it, as well as with the 2018 court order confirming the complainant’s interpretation, the Government and the company refute this allegation and maintain that, in terms of the settlement agreement, the union is first required to prove that it is sufficiently representative and until it has done so and its membership is verified (a process in which, according to the company, the union fails to cooperate), the company is under no obligation to grant the requested union rights. The Committee observes the Labour Court’s reasoning in this regard (considered by the Government and the company as non-binding obiter dictum) that the parties had negotiated and concluded a settlement agreement granting the union the right to access the workplace and to have union subscription fees deducted, and that since it did not appear that the NTM was requesting to be admitted to the bargaining forum at the company, the union did not otherwise need to show sufficient representativity, contrary to what the company put forward. The Committee further notes that, as a result of the company’s alleged non-compliance with the 2018 court order, the union-initiated contempt of court proceedings which are currently ongoing and observes from the information submitted by the Government that even though the parties attempted to engage in discussions with regard to the verification of the union’s membership on several occasions, these engagements did not lead to any significant results.
3. 51. The Committee understands from the above that the dispute in the present case ultimately revolves around the question of trade union facilities, in particular access to the workplace and deduction of trade union membership fees, and the refusal by the company to grant these facilities to the complainant. In this respect, the Committee recalls that Governments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization. Workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation function [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1590 and 1591]. Furthermore, with regard to check-off facilities, the Committee wishes to underline that workers should have the possibility of opting for deductions from their wages under the check-off system to be paid to trade union organizations of their choice, even if they are not the most representative [see Compilation, para. 695].
4. 52. In line with the above, the Committee urges the Government to ensure that the complainant is given reasonable access to the workplace where its affiliates are employed, while ensuring that such access is exercised without detriment to the efficient functioning of the company, and will facilitate discussions between the parties so that they can determine the modalities of such access, as well as the utilization of check-off facilities where the worker members have so requested. In this regard, the Committee invites the complainant to provide all the necessary forms to the company. The Committee further encourages the Government to bring the parties together to resolve any pending issues related to the above modalities so as to ensure that the complainant may exercise its basic organizational rights without delay.
5. 53. The Committee considers that this case does not call for further examination and is closed.