Organisational rights South African labour law

1 organisational rights

1.1 purpose
1.2 registration

1.2.1 prerequisite
1.2.2 procedure
1.2.3 specific rights

1.2.3.1 access workplace
1.2.3.2 deduction of union fees
1.2.3.3 election of shop stewards
1.2.3.4 time off trade-union activities
1.2.3.5 disclosure of information




1.3 different levels of representativeness unions different rights

1.3.1 majority representation
1.3.2 sufficient representation
1.3.3 workplace
1.3.4 thresholds


1.4 acquisition of organisational rights

1.4.1 through collective agreement
1.4.2 through membership of bargaining council
1.4.3 through s 21 procedure
1.4.4 through strike action


1.5 dispute resolution organisational rights

organisational rights
purpose

the lra not impose legal obligation on employers bargain collectively unions. law encourages collective bargaining; not compel it. 1 of ways seeks enabling trade unions acquire organisational rights in circumstances. granting of organisational rights trade union seen way of enabling trade union establish collective-bargaining relationship employer or employer’s organisation.

the trade union essential instrument engaging in collective bargaining. lra sets minimum rights trade unions (which may expanded upon agreement) in engagement employers. these organisational rights granted unions lra enable them function more effectively, build support @ workplace, , thereby lay foundations of collective-bargaining relationship employer.

if union, through acquisition of organisational rights, gains sufficient membership , significant presence in workplace or industry, employer or employers’ organisation may persuaded recognize union purpose of collective bargaining.

registration
prerequisite

organisational rights granted registered trade unions. lra not compel trade unions , employers’ organisations register, encourage registration. granting of rights in lra registered unions. instance, registered union may

conclude collective agreements enforceable in terms of lra;
apply establishment of bargaining or statutory council;
apply establishment of workplace forum;
authorize picket members; and
exercise organisational rights.

registration not prerequisite protected strike action.

procedure

once trade union or employers organisation has complied requirements set out in lra, registrar of labour relations must register union or organisation. in respect of unions, there 4 requirements met:

the first 3 requirements apply in case of employers’ organisation; last one, given overlap, not.

specific rights

the lra makes provision granting of 5 types of organisational rights. other organisational rights may granted not referred in lra; these must obtained through negotiation , agreement. 5 types of organisational rights made provision in lra listed , discussed below:

access workplace

the logical place contact between union representatives , members represent, prospective members whom union might recruit, in workplace. section 12 of lra states registered trade union, sufficiently representative, has right of access workplace. right allows union

to enter employer s premises, recruit members, communicate members , serve members interests;
to hold meetings employees @ workplace (but outside of working hours); and
to let members vote @ employer s premises in union elections or ballots.

the purpose of access union recruit new members, communicate existing ones , serve interests of union members in other ways.

the right of access refers access union officials, clear, not affiliated union. nor such officials not have free rein. right of access not unlimited. section 12(4) states exercise of union’s right of access workplace may subject such conditions, regards time , place, reasonable , necessary protect life , property, or prevent undue disruption of work.

in case of domestic workers, there no right of access workplace, given intimate nature of workplace.

deduction of union fees

this primary source of income unions. section 13 of lra grants unions right stop-order facilities. union fees used perform work , functions of union, hire officers , offices, , provide training. there no stipulation in lra or in related regulations how unions allowed charge, not much. amount determined constitution of trade union.

payment voluntary: member of registered , sufficiently representative union may authorize employer, in writing, deduct union subscriptions wages. done on union membership form. employer should start make deductions agreed possible, , should pay subscription on union not later fifteenth day of each month.

the employee may subsequently revoke authorization, however, on written notice of month, both employer , trade union. @ end of period, employer must stop making deduction.

when paying deductions trade union, employer must furnish union with

a list of union members wages deductions made;
details amounts deducted , paid union;
the period deductions relate; and
copies of written notices of revocation of authorization union members.

election of shop stewards

shop stewards union representatives, infantry of trade union. play important role in industrial relations, being in best position represent union in workplace , relay information workplace union. after day-to-day operation of union , protection , assistance of workers work-related problems. statutory role ensure compliance law , collective agreements.

section 14 of lra provides members of registered trade union, provided union represents majority of employees in workplace, entitled elect trade-union representatives if union has @ least ten members in workplace. nomination, election, terms of office , removal office of representatives governed union’s constitution.

the number of representatives determined according number of union members in specific workplace. example, if there between ten , fifty union members, there 2 representatives. amount increases on sliding scale. maximum number of representatives twenty.

the functions of union representatives set out in section 14(4) of lra:

to assist , represent employee @ request in grievance , disciplinary proceedings;
to monitor employer’s compliance lra , other applicable laws;
to report alleged contraventions of lra or collective agreements employer, representative trade union , responsible authority or agency; and
to perform other function agreed between representative trade union , employer.

shop stewards employed employer, not union. grogan describes difficult position in shop stewards find themselves, keeping 2 sets of books, or attempting serve 2 masters, employer , trade union—masters interests diametrically opposed. situation particularly difficult, writes grogan, when shop stewards occupy supervisory or managerial positions. courts have held, however, employers may not reason forbid managerial employees being elected shop stewards; can discipline them if union role prevents them performing managerial duties properly.

the distinction between union officials , union representatives (like shop stewards) important one. trade-union officials employees of trade union; perform various duties trade union in capacity. trade-union representatives, on other hand, remain employees of particular employer @ workplace, although represent union in various ways within workplace employed.

time off trade-union activities

section 14(5) of lra entitles trade-union representative reasonable time off, during working hours, without loss of pay, perform union functions , trained in subject relevant performance of functions. meaning of reasonable in relation paid time off not stated in act.

attendance @ union conferences , meetings may require office-bearer absent work. in terms of section 15(1), office-bearer of registered, sufficiently representative trade union entitled take reasonable leave during working hours purpose of performing functions of office. in terms of section 15(2), union , employer may agree on number of days’ leave, number of days’ paid leave , conditions attached leave. if union , employer unable reach agreement, dispute may determined award made in terms of section 21 of lra.

no benchmark shop stewards’ leave emerges decided cases, arbitrators have accepted ten days per annul reasonable. employers may take disciplinary action against shop stewards if exceed or abuse powers by, example, intimidating employees, including other shop stewards. employers entitled refuse deal shop stewards if have committed serious misconduct.

item 4(2) of code of practice: dismissal, seeks discourage victimization of shop stewards requiring employers inform , consult unions before taking disciplinary action against them reason. number of cases concerning dismissal of shop stewards have reached courts. approach in such cases determine

if does, dismissal ‘automatically’ unfair, , shop steward invariably reinstated.

disclosure of information

for trade union job effectively, may need access information. section 16 provides provision of information both trade-union representatives , trade unions. registered unions represent majority of employees in workplace entitled rely on section 16.

only relevant information must disclosed: say, in terms of section 16(2), relevant information allow representative trade union engage in consultation or collective bargaining must disclosed. information must relevant effective performance of functions in terms of section 14(4). there is, in other words, important link between information required , function of representative. requirement of relevance means relevance performance of specific task.

typically information in question in hands of employer. common example production plans or plans restructuring, affect or cause retrenchment.

the registered majority union has right information when employer involved in consultation or bargaining union, or when consultation or bargaining start. example, @ annual wage negotiations, employer may argue financial position, both short- , long-term, poor. trade union may dispute , demand relevant information on employer bases argument disclosed. employer have furnish, example, proof of cancellation of orders, , reasons such cancellation, existing , possible new orders, , financial statements.

the employer, however, cannot expected disclose information which

is unavailable;
is irrelevant issue or issues under discussion;
is legally privileged;
could harm employer s business interests if disclosed; or
is private personal information relating employee, unless employee has consented disclosure of such information. possible employer convey such information union without disclosing identities.

if employer regards types of information confidential, must notify union of fact.

disputes on disclosure of information referred commission conciliation, mediation , arbitration, attempt settle dispute through conciliation and, failing that, arbitration.

different levels of representativeness unions different rights

whether trade union entitled organisational rights depends on level of representativeness of trade union in workplace, can either majority representation or sufficient representation. if union represents majority of workers, have access organisational rights. if union sufficiently representative, have access organisational rights: rights of access, leave , stop-order facilities. rights elect shop stewards , disclosure of information, on other hand, reserved unions have members majority of employees in workplace.

usually, single union seeking organisational rights, 2 or more unions may act so.

majority representation

where union has majority, representing 50 per cent plus one, or more, of employees in workplace, enjoys following organisational rights:

the right of access workplace;
the right have membership fees deducted wages;
the right elect shop stewards;
the right of shop stewards leave union activities; and
the right of disclosure of information.

sufficient representation

where union sufficiently represented, represents less majority of employees in workplace. there no fixed rule sufficient representation; decided on case-by-case basis. sufficiently representative union enjoys following organisational rights:

the right of access workplace;
the right deduction of membership fees wages; and
the right leave of shop stewards trade-union activities.

if union member of bargaining council, enjoys following organisational rights:

access workplace; and
deduction of membership fees wages.

if minority union, may enforce rights through collective bargaining , industrial action. 2 or more trade unions may act jointly acquire rights.

the lra not define sufficient representation, give guidelines. factors taken account include nature of workplace , industry involved, presence or absence of other unions membership in workplace. approximate figure thirty per cent.

in upusa v komming knitting, commissioner extended right access workplace, right deductions of union subscriptions, union which, @ time of award, represented 7 employees out of 31. commissioner made decision on basis

that union union organising , recruiting @ workplace;
that had been present in workplace since shortly after employer’s inception; and
that current low level of representation due high labour turnover.

the commissioner held union seemed capable of recruiting majority of workers @ workplace.

in sactwu v marley, commission conciliation, mediation , arbitration refused organisational rights union 42 per cent representivity, on basis union represented 56 per cent of employees in workplace, , because employer had long association other union, included agency-shop agreement.

in numsa v feltex foam, question whether differing degrees of sufficient representativeness set different organisational rights: higher degree gaining access workplace, example, stop-order facilities. commission conciliation, mediation , arbitration held there have special circumstances allow him distinguish between such rights. if arbitrator prepared grant 1 of these rights, in other words, there have special circumstances justify refusal grant of others.

in organisation of labour affairs v old mutual life assurance, commissioner prepared order employer grant access workplace , stop-order facilities union level of representivity not ordinarily have permitted granting of these rights, on basis rights had been granted other unions lower representivity. similar approach adopted in group 4 falck v duswo.

the effect of these decisions that, when employer grants organisational rights union with, example, ten per cent representivity, employer cannot argue union seeking organisation rights must have @ least thirty per cent.

section 18 allows employer , majority union in workplace, parties bargaining council, establish collective agreement level of representativeness required purposes of gaining access, deductions , leave @ particular workplace.

the limit agreed threshold must applied equally unions seeking exercise any, or all, of these rights.

workplace

the workplace defined in section 213 of lra. there distinction drawn, in regard, between public service , private sector.

in public sector, workplace national department, provincial administration, provincial department or organisational component contemplated in public service act.
in private sector, workplace place employees of employer work.

if private employer has 2 businesses, independent of each other reason of size or function or organisation, place employees work in connection each independent operation constitutes workplace operation. foresees possibility geographically distinct operations may constitute 1 workplace. commission conciliation, mediation , arbitration commissioners been unwilling accept geographically distinct places of work constitute separate workplaces.

in speciality stores v saccawu, labour court loath find, in absence of proof trade union, different stores of retailer constituted different workplaces. court made clear onus rests on union prove 2 operations 2 different workplaces.

thresholds

employers , majority unions permitted conclude collective agreements set thresholds acquisition of rights under sections 12 (union access workplace), 13 (stop-orders) , 15 (time off). right conferred section 18 ( right establish thresholds of representativeness ), reads follows:

(1) employer , registered trade union members majority of employees employed employer in workplace, or parties bargaining council, may conclude collective agreement establishing threshold of representativeness required in respect of 1 or more of organisational rights referred in sections 12, 13 , 15.

(2) collective agreement concluded in terms of subsection (1) not binding unless thresholds of representativeness in collective agreement applied equally registered trade union seeking of organisational rights referred in subsection.

a threshold agreement, then, agreement restrict rights unions percentage of representation. idea prevent union fragmentation, , make bargaining genuinely collective.

acquisition of organisational rights

trade unions may acquire organisational rights in following ways:

through collective agreement;
through membership of bargaining council;
through strike action; or
through section-21 procedure.

through collective agreement

the lra makes provision in section 20 registered trade union , employer or employers organisation conclude collective agreement regulates organisational rights. means that, if trade union not representative, have organisational rights on parties agreed.

this route begins approach union employer, , request grant union organisational rights. section 20 not prescribe representivity requirements before employer entitled grant such rights in collective agreement. union small degree of representivity, therefore, may obtain organisational rights.

through membership of bargaining council

in terms of section 19 of lra, registered trade union, if party bargaining council, automatically acquires right of access premises, right have trade union subscriptions deducted stop orders, in respect of workplaces falling within jurisdiction of bargaining council. again, not matter, purposes of route, how representative union in specific workplace. union acquires these rights irrespective of whether sufficiently representative or not.

through s 21 procedure

briefly, section-21 procedure involves notice union employer of intention seek organisational rights, consultation between union , employer in attempt reach collective agreement, , referral union of dispute, if any, ccma, attempt settle matter through conciliation, failing arbitrate dispute , issue binding award. union in case must registered, , must enjoy level of representation in workplace.

the onus rests on union notify employer, in writing, intends seek organisational rights conferred act. notice must contain following information:

the workplace in union seeks exercise rights;
the representivity of trade union in workplace;
the rights trade union wishes exercise; and
the manner in trade union wishes exercise rights.

the notice must accompanied certified copy of trade union registration certificate.

within thirty days of receiving notice, employer must meet union. parties must try conclude collective agreement regulating manner in organisational rights exercised. employer may refuse grant union rights on grounds there dispute constitutes workplace, or because employer argues union not enjoy required degree of representativeness.

if parties fail conclude collective agreement, either of parties may refer dispute, in writing, commission conciliation, mediation , arbitration conciliation. if conciliation fails, either party may request dispute arbitrated. ccma has jurisdiction arbitrate if union has complied provisions of section 21, peremptory. failure union comply them mean commission conciliation, mediation , arbitration may not deal dispute.

the ccma commissioner called upon decide whether or not union representative. section 21 authorizes him make inquiries, conduct ballot , take other relevant information account.

once actual number of members has been established, section 21(8) provides commissioner

must seek minimize proliferation of trade union representation in single workplace and, possible, encourage system of representative trade union in workplace; and
must seek minimize financial , administrative burden of requiring employer grant organisational rights more 1 registered union.

here lra gives clear legislative support principle of majoritarianism.

in regard, commissioner must consider

the nature of workplace;
the nature of 1 or more organisational rights registered trade union seeks exercise;
the nature of sector in workplace situated; and
the organisational history @ workplace or other workplace of employer.

if employer of opinion union no longer representative, may refer matter commission conciliation, mediation , arbitration, requesting withdraw organisational rights. commissioner may withdraw of organisational rights once conferred exercised other registered trade union in respect of workplace, if other union has ceased representative union.

in order determine membership or support of registered trade union, commissioner may

make necessary inquiries;
where appropriate, conduct ballot of relevant employees; and
take account other relevant information.

the employer must co-operate commissioner , make available information , facilities reasonably necessary purpose. employer alleges union no longer representative trade union may apply ccma withdraw of organisational rights granted.

in summary, section 21 procedure runs follows:

the union notifies employer in writing intends exercise organisational rights.
within thirty days of notice, employer , union meet in attempt conclude collective agreement.
if collective agreement concluded, need go no further section 21; if not, either party refers dispute in writing commission conciliation, mediation , arbitration conciliation.
if matter not conciliated, there 2 options:

either party may request arbitration, after commissioner may determine representativeness of union , manner in rights exercised. commissioner may consider application withdrawal of rights, , relevancy , confidentiality of information. arbitration award binding on parties.
the union may strike, or employer may lock out:

if union gives notice of intention strike, may not refer dispute arbitration period of twelve months date of notice.
the same condition applies employer giving notice of lock-out.

the lra amendment bill before parliament proposes amend section 21. section 8a of proposed amendment allow non-majority trade union bring shop stewards workplace.

through strike action

the lra prohibit strike in support of demand employer grant or organisational rights union, because such dispute may referred arbitration in terms of section 21. section 65(2)(a) permits union otherwise have right refer dispute organisational rights arbitration in terms of section 21 embark on strike action in attempt force employer grant these rights.

a trade union, including minority union, may therefore strike in support of demand organisational rights if not meet statutory threshold acquiring such rights. except right information, in fact, organisational rights rights conferred lra on strikes permitted.

this consequence of numsa v bader bop, numsa, although not majority union, sought acquire right elect shop stewards striking. lower courts divided. divided labour appeal court held minority unions not strike such right because,

this judgment overturned constitutional court, however, held minority unions may strike in support of demands organisational rights not entitled under lra.

the constitutional court found nothing in section 20 of lra precludes collective agreement granting collective-bargaining rights, if qualification representativity not met. court s interpretation of that, if minority union asks for, not succeed in acquiring, organisational rights in question, , if conciliation subsequently fails, dispute-resolution mechanism strike it.

this judgment has been severely criticized.

if union utilizes strike remedy, unsuccessful in forcing employer grant rights, union loses right utilize section-21 procedure 1 year date on notice given of intention go on strike.

dispute resolution organisational rights

if there dispute interpretation of organisational rights, party may refer dispute in writing commission conciliation, mediation , arbitration conciliation and, if conciliation fails, arbitration.

disputes disclosure of information follow same route. in determining dispute, commissioner must strike balance between employer’s right privacy , interests of sound collective bargaining. commissioner has wide discretion make suitable award achieve this.