Acquisition of organisational rights South African labour law

1 acquisition of organisational rights

1.1 through collective agreement
1.2 through membership of bargaining council
1.3 through s 21 procedure
1.4 through strike action

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.