An ill contractual wind blowing collective good? Collective representation in non-statutory bargaining and the limits of union authority

Abstract

Induction:In the statutory arena one facet at least, the interaction between union and employer parties at industrial council level, is defined by the Labour Relations Act 28 of 1956 (LRA). The other crucial nexus, that between the union and its constituents, is not expressly defined but can be construed in the context of the statutory process. This may be one reason why the issue has given rise to relatively little litigation or debate. No comparable framework exists within which to situate non-statutory bargaining. Case law on the subject, though on the increase, is still meagre. Three such cases are reviewed below. All three turn on the question whether agreements (purportedly) entered into by union officials had in fact been authorized by members of the union and, hence, whether the agreements were valid. In all three cases the agreements were upheld though with little in the way of a common rationale to underpin future legal development. This article will argue that the key to the development of a coherent approach lies in a more consistent application of the principle of majoritarianism.