The Threshold Agreement

Both sides will do everything in their power to fully comply with all the provisions of the TTB Treaty. However, there are technical uncertainties in predicting the exact results of nuclear tests. These uncertainties may result in slight unintentional breaks in the 150 kiloton threshold. Therefore, both sides discussed this issue and agreed that: (1) one or two minor and unintentional infringements per year are not considered a violation of the treaty; 2. However, such infringements would be of concern and, at the request of a Party, would be the subject of consultations. First, the Court of Justice considers that the question whether SACOSWU had the right to negotiate with the employer with a view to an existing collective agreement between the employer and POPCRU was correctly answered by interpreting the provisions of the latter agreement. In other words, the decision on this important constitutional issue depended solely on the terms of the agreement between POPCRU and the employer. I have already shown that this approach is contrary to the requirements of Article 36 of the Constitution. The prohibition would only be constitutionally permissible if it were authorized by section 18 of the Act.

[94] The text of the section limits its content and scope to the right to set a threshold within the meaning of a collective agreement. Section 18 does not authorize the employer and a majority union to determine the constitutional rights that may be exercised by other unions that are not parties to the collective agreement. The section is not at all about the right to collective bargaining. Nor does it mention the freedom of association which allows each employee to found or join the trade union of his choice. [63] I disagree. As is apparent from the first judgment, the dispute between the parties focused on the parties` interpretation of Articles 18 and 20. POPCRU argued that section 18 of the LRA prevented the employer from entering into a collective agreement contrary to an existing agreement between the employer and a majority union with respect to organizational rights. For its part, SACOSWU argued that Article 18, in conjunction with Article 20 of the LRA, does not prohibit an employer, if correctly interpreted, from conducting collective bargaining and concluding a contract with a minority trade union which does not set the threshold of organisational rights set by a collective agreement between an employer and a majority trade union. The Labour Appeal Court found that the DCS had the right to enter into an agreement granted to the South African Correctional Services Union (SACOSWU), a minority union (first defendant), organisational rights within the meaning of sections 12, 13 and 15 of the Labour Relations Act (LRA). Those rights were the subject of a collective agreement under Article 18(1) setting a membership threshold for the acquisition of those rights; SACOSWU`s membership was below this threshold. This is simply not true.

ยง 20 LRA does not confer any rights. On the contrary, it is clear that in Chapter III, Part A, there is nothing to prevent the conclusion of a collective agreement governing the rights of organizations. [74] Another factor that indicates the balance in favour of the case is the manifest error of the judgment of the Court of Contracts of Employment. .



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