Trade unions and organisational rightssuzette
We are often contacted by clients in a panic due to the fact that a union has gained membership within their workplace. Although the prospects of having a union in the workplace may be daunting, the reality does not have to be. The Labour Relations Act 66 of 1995 regulates the relationship between the employer and the union, specifically pertaining to which rights should be afforded to a union. It is thus advisable to first inspect the Act before agreeing to the union’s demands.
A union’s rights in the workplace are known as organisational rights. Unions can obtain these rights through operation of the law based on the union’s representative status or through agreement between the union and employer. An employer and a union may enter into a recognition agreement in terms of which they determine which rights the union will be granted and how these rights are to be exercised. There is nothing that prohibits an employer from granting a union rights even though the union does not meet the required threshold. However, there is no obligation on an employer to do so either.
Statutory rights of unions:
The Labour Relations Act grants a union four operational rights upon the union reaching a certain level of representation. These rights are:
1. Access to the employer’s premises. (Section 12)
A sufficiently representative trade union is entitled to access to the employer’s premises for purposes of recruiting or communicating with its members. The exercise of this right will be subject to conditions set by the employer in terms of time and place of communication with employees as to prevent undue interruption of work.
2. Deduction of trade union subscription or levies. (Section 13)
A sufficiently representative trade union is entitled to deduction of union fees from consenting members’ wages. The employer will make the authorized deductions as soon as possible and must pay the deductions over to the trade union by no later than the 15th day of the month following the date of payment.
3. Election of trade union representatives. (Section 14)
In the event of a trade union representing a majority of the employees in the workplace, the members are entitled to elect one or more shop steward(s) in accordance with the thresholds set out in section 14. A shop steward will be entitled to reasonable leave during working hours for purposes of performing his/her shop steward duties. What constitutes reasonable time off will be negotiated between the union and employer.
4. Disclosure of information (Section 16)
Where a trade union has as its members the majority of the employees in the workplace, the employer must disclose certain information to the trade union and/or its representatives upon request.
Thresholds of representation required:
The section 12 and 13 rights require that the union be “sufficiently representative”. There is however no definition provided by the Labour Relations Act for what constitutes “sufficiently representative”. This will depend on the circumstances and should be agreed between parties. A union with 3 members out of 20 employees would ultimately not qualify. Should the union and employer fail to agree on what constitutes sufficient representation, the matter may be referred to the CCMA where ultimately agreement can be reached or an Arbitrator may determine whether the union qualifies for sufficient representation.
The rights to elect shop stewards and obtain access to information are granted to unions which have as members more than half (50% + 1) of the employees in the workplace. This is an objective basis on which levels of representation can be determined.
It is advisable that the employer meet with the union upon them entering the workplace. The employer should then request that the union provide the relevant membership forms. Once the degree of representation has been established, the union and employer should enter into a recognition agreement to establish how, when and whether the relevant rights may be exercised. Such an agreement is binding and protects both the employer and the union. The agreement should provide for levels of representation required to exercise certain rights and procedures to be followed should the union no longer have the required level of representation.