Ratified treaties;¹ Work of international supervisory bodies²

Members of the negotiating team/ Freedom of association/ Collective bargaining/ Use of international law as a guide for interpreting domestic law 

CHODAWU was a registered trade union exercising its collective rights at the Hotel Mkonge. Following the signing by both parties of a recognition agreement, CHODAWU was recognized as a majority trade union and exclusive representative of the workers in collective bargaining processes. The trade union then issued the hotel with a list featuring the names of the people that would form part of its negotiating team, including regional members of the union. The hotel objected to the inclusion of regional officials, stating that only members of the trade union who were employees of the hotel could form part of the negotiating team. The trade union did not agree with this objection and applied to the Supreme Court to resolve the issue. 

The Court had to decide whether or not the fact that the employer chooses the composition of a trade union’s negotiating team was in line with the purpose of the Employment and Labour Relations Act (ELRA) 6/2004. In this regard, the Court pointed out that: 

“Having reviewed the Law on Employment and Labour Relations along with the Code of Good Practices, it seems that neither contains a direct answer [...] But in the knowledge that the purpose of the aforementioned Law is to give effect to the ratified ILO Conventions (Section 3(g)) it is appropriate to seek guidance in the principles and practices adhered to by the supervisory bodies of the ILO when interpreting Conventions Nos. 87 and 98, which are generally reviewed in accordance with Convention No. 154. 

Once of the main purposes of the aforementioned Conventions is to allow employers and workers to enjoy equal conditions and have equal voice during negotiations concerning matters affecting employment conditions [...] In this sense, it is clear that the selection by the employer of the composition of the trade union negotiating team with whom the employer will negotiate would affect the philosophy behind these Conventions.”³ 

The Court then cited the work of the ILO Committee of Experts on the Application of Conventions and Recommendations, and of the ILO Committee on Freedom of Association, highlighting that: 

“[The Committee on Freedom of Association in its Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO establishes that:]

‘985. Excessively strict prescriptions on such matters as the composition of the representatives of the parties in the process of collective bargaining may limit its effectiveness and this is a matter which should be determined by the parties themselves.’

[…] Further, the Committee of Experts commenting on the ambit of Article 4 of Convention 98, noted that ‘…collective bargaining must be free and voluntary and respect the principle of autonomy of the parties’. […] By extrapolation, for collective bargaining to be free and voluntary, each party in the process must be free to choose composition of its bargaining team, without limitation or hindrance form the other party or public authorities”.⁴ 

The Court, making use of ILO Conventions Nos. 87, 98 and 154, along with the work of the Committee on Freedom of Association and the ILO Committee of Experts, decided that each party in the collective bargaining process has the right to form its own negotiating teams according to their own constitution and organization without the interference of the other party, and ordered the hotel to continue the collective bargaining process with the trade union.