By Herman Van der Merwe
East Rand Branch
Both parties are governed by the same rules and regulations as set out in the Labour Relations Act, 66 of 1995. The question then arises, should we as employers just sign the agreement or negotiate the agreement? When will a trade union be entitled to organisational rights, and what rights are they entitled to?
A trade union will be entitled to acquire organisational rights when an employer recognises a trade union as the bargaining agent for its employees in a particular bargaining unit. A recognition agreement will accordingly be drafted to regulate this relationship. The agreement will define the structures through which bargaining takes place at plant, company or sectoral level and accords the parties specific rights, and usually provides procedures for the resolution of disputes.
The Labour Relations Act, 66 of 1995 makes provision for unions that enjoy either sufficient or majority representativity, the right to obtain various organisational rights.
Employers are not under any obligation to provide any union with organisational rights on demand of such a union. It is important to note that the unions must be registered before it can claim a legal entitlement to organisational rights. Secondly, the union must be a sufficient representative of a number of workers on the staff of the employer.
The LRA does not define the concept of "sufficiently representative". Section 39 of the LRA, which deals with the criteria for the establishment of a bargaining council, defines "representative trade union" as a registered trade union or two unions acting jointly, that represents at least 30% of the employees in the sector or area. Some guidance may thus be obtained from this definition.
Another source of guidance is the CCMA awards handed down after arbitration had taken place in terms of section 21.
In Organisation of Labour Affairs (OLA) v Old Mutual Life Assurance Co (SA) (2003) 9 BALR 1052 (CCMA) OLA represented approximately 2% of the workforce. The Commissioner however held that it was sufficiently representative on the basis that Old Mutual had previously granted organisational rights to unions with fewer members.
In BIFAWU v Land Securities Management (Pty) Ltd (an arbitration award handed down on 27 October 2003 under case number GA 40128-02) the Commissioner considered the argument that s39 may be used as a guideline to what is considered sufficiently representative, and proceeded to state that:
"Before making comparisons between the two sections, that is s11 and s39, one must bear in mind the different purposes served by these sections. "Sufficient" must be read into the purpose for which it is required.The rights, duties and functions conferred to a sufficiently representative statutory Council far exceed rights conferred to a sufficiently representative union. A sufficiently representative union enjoys no right to be involved in participative management. It has no influence in the running of the affairs of the employer's business. It is not part of decision making, and therefore has no effect of influence on the course of the events in the employer's business. The comparison is not fair."
The Commissioner held that a figure of between 19% and 20% can be regarded as sufficiently representative.
In P.T.W.U. obo Members v Broubart Security (an award handed down on 18 February 2004 under case number ECP 2410-03) the Commissioner again considered whether s39 should be considered as a guideline and stated that:
'The only indicia are to be found in connection with Bargaining Councils, which acknowledges a 30% representation as sufficient. I am of the view that these criteria are also applicable in as far as the private sector is concerned. More recent arbitration rulings confirmed the above guideline of 30%."
The Commissioner further found that 14.8% representivity is not sufficiently representative, and this decision was also recorded.
In Speciality Stores v SACCAWU & Another [1997] 8 BLLR 1099 (LC) the Labour Court was unwilling, in the absence of proof by the trade union, to find that different stores of a retailer constituted different workplaces. The Labour Court also made it clear that the onus rests on the trade union to prove whether two operations are different workplaces. A similar view was accepted in SA Commercial Catering & Allied Workers Union v The Hub (1999) 20 ILJ479 (CCMA) . In OCGAWU v Total SA (CCMA WE 15487) all the employer's 38 distribution depots were held to constitute one workplace.
It is clear from the aforementioned that arbitration awards tend to be based on their own particular facts and are of little use insofar as a general rule is concerned.
The threshold with regards to organisational rights is the following:
- Access to the employer's premises
Officials of sufficiently representative registered trade unions are entitled to enter the employer's premises in order to recruit members or communicate with members or for voting purposes, or otherwise serve member's interests.
- Payment of union fees
An employee who is a member of a sufficiently representative trade union may authorise the employer in writing to deduct subscriptions payable to that trade union for the employee's wages.
- Trade union representatives
For a registered trade union to acquire this right, the union must have majority support. In order for a trade union to be considered a majority union in a workplace it should have a representativity figure of 50% plus one additional member in such a workplace.
- Disclosure of information
Trade unions that are registered and have as members a majority of employees in a workplace are entitled to disclosure by the employer of relevant information.
- Leave for trade union activities
Employee representatives of trade unions that are sufficiently representative are entitled to reasonable paid leave during working hours to perform the functions attached to their offices. The union and the employer may agree to the number of days of leave, the number of days of paid leave and the conditions attached to any leave.
How does a trade union acquire organisational rights?
Section 21 of the Labour Relations Act, 66 of 1995, sets out the following procedures to be followed by a union wishing to acquire organisational rights in a workplace.
Step one
A registered union can write to an employer requesting some or all of the organisational rights listed in the Act. The notice to the employer must specify:
- the workplace at which the rights are requested;
- the extent to which the union is representative of employees in that workplace;
- the evidence relied on to demonstrate that support
The union must attach a certified copy of its registration certificate with the request.
Within 30 days of receiving the request, the employer must meet the union and attempt to conclude an agreement on how the union will exercise the rights it has requested. If an agreement is concluded the process stops here.
Step two
If no agreement is reached, the union or employer may refer the matter to the CCMA in writing and send a copy to the other party. A CCMA commissioner then attempts to resolve the dispute through conciliation.
Step three
If conciliation is unsuccessful, either party can ask for the dispute to be settled by arbitration. Often the dispute concerning organisational rights is about how much support the union has among employees at the workplace. To resolve this dispute, the arbitrator may conduct a ballot or make other investigations.
If the commissioner is satisfied that the union is sufficiently representative to enjoy certain organisational rights, he or she can make an award requiring the employer to grant the union those rights and specify how those rights are to be exercised.
Take note that a union can choose to strike rather than to follow the route of arbitration, except for disclosure of information disputes. If the union embarks on strike action, it has to wait one year before it can turn to the CCMA to obtain organisational rights.
In other words, the union has a choice of using the CCMA procedure or the route of industrial action (after following the correct procedures for protected strike action). However, it must live with the consequences of its choice for at least a year if it chooses strike action.
In the event you receive communication from a union demanding organisational rights Labourent can assist you. If you are a client your consultant will assist you in arranging a meeting with the union to discuss organistional rights, the consultant should be notified and a meeting set up to discuss the representativity of the union. Your consultant will further assist with drafting the recognition agreement, drafting of correspondence between the employer and union. Further services that we offer is assisting the employer in, after and before the meetings/negotiations with the union and evaluating and review of the agreement in place between you and the union.Contact your LabourNet consultant directly or the LabourNet Helpdesk on 0861 522 638 for assistance.
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Disclaimer
The information published in this article or newsletter is of general nature and should not be used without obtaining specific advise as to its application in your business or under your specific circumstances. Labournet will accept no liability if the information is used without first obtaining specific advise from one of our consultants