Trade Unions

Freedom to Join and Form a Union

The Constitution and labour law provide for freedom of association and allow workers and employers to join and form unions. This right is regulated by the Workers' Trade Union Act. Certain categories of workers are prohibited from forming a trade union or federation. These include: any disciplined force, including the army, police, prisons, fire brigade and wildlife forces; National security forces; Constitutional post holders; Judges and justices; Public Attorneys and Legal Advisors; and Senior members of the diplomatic service.

An employer shall not, for reasons related to a worker's activity in the Worker's Union or Federation, dismiss, downgrade, compulsorily retire or take any other action in relation to the worker that is prejudicial to the worker. The Labour Act states that all employees have the right to establish and join trade unions of their own choosing. Furthermore, the employment contract cannot be terminated if an employee is a member of a trade union or participates in any activity of a trade union outside of working hours or with the consent of the employer within working hours. Also, the employment contract cannot be terminated where the employee is acting as a representative of other employees at the workplace of the employer.

An employer shall not: offer any worker any assistance, whether financial, educational or any other kind, for the purpose of enticing that worker to join or not to join any Union.

Source: §25 of the Constitution of South Sudan, 2011; §6 & 28 of the Workers' Trade Union Act, 2013; §9 & 73 of the Labour Act, 2017

Freedom of Collective Bargaining

Collective agreements are allowed under the Labour Act in both the public and private sectors. However, the Workers' Trade Union Act, 2013, prohibits disciplined forces (army, police, prisons, fire brigade, wildlife forces), national security forces, Constitutional post holders, judges, justices, public attorneys, legal advisors, and senior diplomats from forming trade unions or engaging in collective bargaining.

Collective bargaining covers a broad range of issues related to employment, including wages and salaries, Working Hours, Terms and Conditions of Employment, Leave Entitlements, Health and Safety at the Workplace, dispute Resolution and Other Matters of Mutual Interest.

Only registered trade unions with a legitimate mandate to represent workers can engage in collective bargaining. The collective agreement must contain a procedure for settlement for disputes resulting from interpretation and application of the collective agreement. Furthermore, where the collective agreement is for a definite period, then the initial term of the collective must be expressly stated as well as the procedure to be followed for the purpose of renewing the collective agreement upon expiry.

Every collective agreement has to be registered with the Office of the Labour Commissioner. A copy of the collective agreement has to be filed within 30 days of its conclusion. It is then registered unless the Office of the Labour Commissioner is of the view that the collective agreement does not comply with the Labour Act or has the effect of prejudicing employees’ entitlements.

The Labour Act, 2017 and Workers' Trade Union Act, 2013, encourage cooperation between government, employers, and workers, but South Sudan lacks a legislated, institutionalised tripartite council with defined roles and regular meetings as of the current date.

Sources: §88-95 of the Labour Act, 2017; §6 & of the Workers' Trade Union Act, 2013

Right to Strike

The Labour Act provides that workers have the right to strike in order to resolve a dispute concerning any matter to which they are party. However, before exercising the right to strike, workers have to take all reasonable steps to resolve the dispute in good faith, participate in conciliation and arbitration as provided under the Labour Act, and give the employer at least a 7-day notice of the intended strike. That being said, such requirements are not be necessary where the strike conforms with the collective agreement, the strike is in response to an illegal lockout, or the employer fails to obtain a certificate from the Labour Commissioner for a unilateral change to the terms and conditions of employment which has been disputed by the employee/trade union.

A person cannot participate in a strike if the collective agreement prohibits a strike in respect of the issue, the issue is required under the collective agreement to be referred to arbitration, or is engaged in an essential service.

An employer may not terminate an employment contract for the participation of an employee in a protected strike or for any conduct in contemplation or in furtherance of a protected strike.

An employer is not precluded from terminating the employment contract of an employee for reasons related to the misconduct of an employee during the strike or for reasons based on the employer's operational requirements.

The employer is prohibited from employing or otherwise engaging any person to perform the work of any employee participating in a protected strike or during a lockout. A worker may refuse to perform the work of another employee engaged in a protected strike or during a lockout.

Sources: §96-98 of the Labour Act, 2017