Giving unions greater access to organisational rights
To represent their members and operate effectively, trade unions require certain privileges, which include access to their employer's premises, access to certain information, the ability to collect union dues and appoint shop stewards.
However, given the importance of collective bargaining in the national labour relations framework, the Labour Relations Act, No 66 of 1995 (LRA), has, in certain instances, elevated the above-mentioned privileges to legal rights.
Specifically, a trade union is entitled to organisational rights if the union is sufficiently representative of the employees who are employed at a particular workplace.
If an employer declines a trade union's request for organisational rights, the union may refer a dispute to the CMMA to determine if the union is entitled to these rights.
Section 21 of the LRA sets out considerations, which a CCMA commissioner must take into account, when it resolves a dispute about organisational rights. Specifically, the commissioner must decide on how much representation in a particular workplace a union is allowed:
- Will it allow the trade union certain rights because it is sufficiently represented in the workplace?
- Will it allow the trade union other rights because it is enjoys majority represented in the workplace?*
The Department of Labour has proposed certain amendments to s21
In terms of the proposed amendments:
- A commissioner determining a dispute about organisational rights will also have to consider the general composition of the workforce at the particular organisation. This will include considering the extent to which employees are employed in non-standard forms of employment, such as through a temporary service provider or on a fixed-term contract.
- A commissioner will be given the discretion to award organisational rights, referred to in s14 and s16, in certain circumstances where a trade union is not, in fact, the majority trade union.
However, this will be subject to the following provisions:
- The trade union must already be entitled to rights in terms of s12 (access to the workplace), s13 (the deduction of union dues) and s15 (leave for trade union activities); and
- There must be no other trade union in the workplace that already has s14 or s16 rights.
Effectively, these amendments allow the CCMA to award organisational rights, that traditionally require majority membership, to minority unions who nevertheless have substantial membership.
These rights will depend on if the trade union is the most representative union in the workplace
In terms of the current LRA, s18 states that an employer and a majority union may conclude a collective agreement that establishes a threshold of representativeness required for any trade union seeking to obtain organisational rights under:
- s12 - the right to access;
- s13 - the right to collect union dues; and
- s15 - the right to take leave for union activities.
Arbitrators will be given the discretion to award organisational rights
Another proposed amendment to s21 is that arbitrators will receive the discretion to award organisational rights under s12, s13 and/or s15 where a union does not meet the threshold established by a collective agreement in terms of s18.
The threshold in the agreement may be disregarded if applying it would unfairly affect a trade union that represents a 'significant interest' or 'substantial number' of employees.
The commissioner will be required to draw a balance between the majority trade union and the trade union who seeks to enforce the rights.
What do the above amendments propose to do?
The above amendments are aimed at promoting including non-standard employees in the collective bargaining framework and expanding the application of organisational rights. This will effectively expand the employee pool in a workplace to procure organisational rights.
The amendments will create a more inclusive collective bargaining arena in the workplace and may assist smaller or less-representative trade unions to gain greater access into the workplace than what is currently permitted under the CCMA process stipulated in s21.
Hopefully, this will lessen the need by smaller unions to use industrial action as the only route to obtain organisational rights previously intended for more representative unions only. In the current climate of violent strike action, any proposal that could result in the need to use less strike actions to resolve disputes should probably be welcomed.
* Majority trade unions are entitled to elect shop stewards and have access to information.
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Faan Coetzee is a director in the employment practice at Cliffe Dekker Hofmeyr. His areas of specialisation include labour and employment law, employee benefits, defamation and media law. |
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Samantha Kelly is a candidate attorney in the employment practice at Cliffe Dekker Hofmeyr. |
