Agency shop and closed shop agreements

Introduction

The aim of an agency shop is to ensure that non-union employees, who

nevertheless benefit from the unions bargaining efforts, make a contribution
towards those efforts.

Closed shop agreements have a similar aim to agency shop agreements, but
compel non-union members to join the union or face dismissal.

The right of employees to join trade unions of their choice is an integral part of
the general right to freedom of association. These rights are guaranteed in the
South African Constitution and Labour Relations Act of 1995 (as amended).

Majority unions are now vigorously applying these agreements (especially

agency shop) to apply to members of minority unions who may be sufficiently
representative. Minority unions are thus prejudiced to the extent that their
existence in certain workplaces or sectors is being threatened.

Of greater concern is the setting of alarmingly high thresholds which affects

many unions.

Core principles

Only a majority union (or unions which jointly have a majority of employees as
members) in a workplace or sector can establish an agency shop agreement with
an employer or employers organisation.

A ballot must be conducted whereby two thirds of the employees at the

workplace who vote, must support the establishment of a closed shop
agreement. Practically speaking, this means that members of minority unions
who are not parties to such agreements must choose either to pay subscriptions
both to their minority union and the majority one, or have sole membership of
the latter.

Section 18(1) of the Labour Relations Act empowers an employer and a majority
union, or the parties to a bargaining council, to conclude a collective agreement
establishing their own threshold.

Section 23(1)(d) of the LRA allows employers and majority unions to extend
collective agreements entered into by them to employees who are not members
of the majority union (which could obviously include members of a minority
union), provided only that those employees are expressly identified in the
agreement and that it is expressly made binding on them. This has significant
implications for minority unions.

Procedures
CONSAWU shall:

challenge the legality of such agreements; OR

encourage affiliated unions in the same sector or workplace to fight back and
jointly form agency shop or closed shop agreements; OR

encourage affiliated unions in the same sectors to act together to meet the
relevant thresholds.

Closed shop agreements

A closed shop agreement makes it obligatory for all employees covered by the scope of

the agreement to belong to a majority trade union. CONSAWU should challenge this on
the basis of the following:

It contravenes freedom of choice and association.

It contradicts the principle of democratic participation.

It promotes monopoly, which is a capitalist tendency.

It diminishes the chances of survival of smaller unions.

CONSAWU should not enforce closed shop agreements, even where it has the capacity
to do so in any particular economic sector, since this will lead to contradiction of a
principle.
Agency shop agreements
Agency shop agreements are different from closed shop agreements in the sense that
they do not directly compel workers to join a particular trade union. CONSAWU believes
it is unfair for workers who do not belong to trade unions to continue to enjoy the
benefits derived from the work of trade unions and their members.
CONSAWU should support agency shop agreements on conditions that:

thresholds are not set at unnecessarily high levels;

fees for such agency shops are not set too high;

effective monitoring mechanisms are put in place to ensure full compliance with
the guidelines set out in the LRA in terms of utilisation of such fees.

CONSAWU encourages its affiliates operating in the same sector to merge or act
together for the purposes of meeting the thresholds, as well as for various other
purposes.
Members of a trade union must not be made to pay dual fees for union and agency
shop fees.