Different levels of representativeness by unions for different rights South African labour law




1 different levels of representativeness unions different rights

1.1 majority representation
1.2 sufficient representation
1.3 workplace
1.4 thresholds





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.








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