A lot of companies have a serious scare, they get a phone call and the voice on the other side says, "We are so-and-so Union and we have representation at your workplace, we want, we want we want". Management, unless they have had previous dealings with a union; go into a panic. There is no need, just remember, the Labour Relations Act governs the essential nature of the relationship between the trade union and the employer.
Prior to the promulgation of the LRA, in order for a trade union to exercise certain rights in the workplace, it was necessary for the employer to formally recognise the trade union in question. This formal recognition occurred when the employer and the trade union entered into a collective agreement. However, owing to the reluctance of many employers to enter into these recognition agreements, the LRA now has a so-to-speak in-built recognition agreement. In other words, if a trade union is sufficiently representative, it automatically, in terms of the LRA acquires certain organisational rights in the employer's workplace. If the Trade Union is a majority union it too, automatically acquires organisational rights in the employer's workplace. Naturally majority Trade Unions enjoy additional organisational rights to Trade Unions which are Sufficiently Representative. In essence, the granting of organisational rights to Trade Unions who can show adequate representivity in a workplace is no longer at the whim of the employer.
In practice, many employers still chose to conclude formal recognition agreements with Trade Unions. In these formal recognition agreements, some employers agree to grant additional organisational rights to Trade Unions, which the Trade Union would not automatically be entitled to in terms of the LRA. Obviously this concession is given in return for the Trade Union giving the employer another form of "benefit"/latitude. Recognition agreements not only deal with issues of organisational rights, but other issues too. A recognition agreement is a species of what in the LRA is called a collective agreement. Collective agreements are, broadly speaking agreements concluded between a Trade Union/s and an employer/s. Collective agreements/ Recognition agreements not only deal with organisational rights in the workplace. They may also cover Agency shops, Closed shops, dispute resolution, issues over which the Trade Union agrees not to strike, issues of Trade Union representation in disciplinary and grievance issues, terms and conditions of employment etc. Section 23, of the LRA, deals with the legal effect of collective agreements. Familiarise yourself with this section before signing any such agreement. Remember it is an agreement and is therefore a legally binding document.
Here is a brief overview of some of the pertinent provisions of the LRA with regard to the process of recognising trade unions in the workplace
Section 21 Labour Relations Act 66 of 1995 - the Recognition Process
The registered Trade Union MUST inform the company in writing that it wishes to exercise its rights in the workplace. This Notice must include the following:
- A certified copy of the Trade Unions certificate of registration. This is vital; as it serves that the union is registered with all the relevant government departments as a registered trade union. This certificate must be up to date.
- It must state where they wish to exercise their rights, i.e. the physical address where they seek to represent.
- They must prove the amount representation they have, this must be in the form of copies and a list of the member applications, and the form that agrees to the fact that they agree to pay the union the monthly fees.
- Lastly they need to inform you how they want to exercise these rights; this will usually take the form of a recognition agreement.
Within 30 days of this event, it is law that there is a meeting between the registered Trade Union and Management of the company, to conclude all the issues that have arisen in the initial contact.
When is a Trade Union "Representative"?
A Union is "representative" if it has approximately 22% (see paragraph below in this regard) representation while it is a majority if it has 50 + 1% representation. The rights Trade Unions enjoy in the workplace, depending on their representivity in the workplace concerned differs.
Please note that the question of whether or not a Union is "representative" is a question which must be answered in relation to each workplace. The law regrettably does not provide us with a definitive percentage/quantum. When a dispute between a Trade Union and an employer arises, as to whether a trade union is sufficiently representative in the workplace or not, a CCMA commissioner, in determining the dispute should:
- Seek to minimise the proliferation of trade union representation in a single workplace;
- Seek to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered union;
- Have regard to the nature of the workplace;
- The nature of the organisational rights that the Union seeks to exercise;
- The nature of the sector in which the workplace is situated; and
- The organisational history at the workplace or any other workplace of the employer.
The above seems to suggest that in a workplace with no history of trade unionism a lower threshold will be sufficient for organisational rights to accrue.
What organisational rights accrue to Trade unions that can prove representivity?
Sufficiently representative Trade Unions enjoy the following organisational rights in the workplace:
• Access to the Employer's premises
• The right to stop order facilities
• Leave for office-bearers of the Trade Union.
In addition to the organisational rights listed above, a Majority Trade Union is entitled to:
• The appointment of trade Union representatives in the workplace (i.e. shop-stewards);
• Disclosure of information that will enable the Trade Union to effectively perform its functions.
More information on the above organisational rights can be found in sections 12-16 of the LRA. Also we recommend the publication "Collective Bargaining Law" by Chris Todd as essential reading for any employer dealing with Trade Unions in their workplace.
We would like to thank Vanessa Henry for this article. Should you have any questions, please contact us.
