A registered trade union who seeks organisational rights at the workplace needs to comply with Section 21 of the Labour Relations Act (LRA).
Section 21(1) states that any registered trade union may inform an employer in writing should he or she wish to exercise one or more rights conferred by this part in the workplace.
The notice referred to in subsection(1) must be accompanied by a certified copy of the trade union’s certificate of registration and must specify:
- the workplace in respect of which the trade union seeks to exercise the rights
- the representativeness of the trade union in the workplace and the facts relied upon to demonstrate that it is a representative trade union;
- the rights that the trade union seeks to exercise that the manner in which it seeks to exercise these rights.
- Within 30 days of receiving the notice, the employee must meet with the registered trade union and endeavour to conclude a collective agreement to the manner in which the trade union will exercise the rights in respect of that workplace.
When the LRA was negotiated, the major players could not agree on a percentage threshold that would entitle a registered trade union to seek some of the five organisational rights. The norm is that the union needs to enjoy at least 30% representation in order to be sufficiently represented in the workplace, but it can also be left to the CCMA or Bargaining Council to decide. If a registered trade union enjoys a 50% plus 1 at the workplace, it is deemed to be a majority union at the workplace.
When a registered trade union is sufficiently represented they enjoy two organisational rights:
- Section 12: Trade union access to the workplace
- Section 13: Deduction of trade union levies
In terms of Section 12, the trade union official or office bearer is entitled to enter the employer’s premises to communicate with his members or serve their interests. The trade union can hold meetings outside working hours at the employer’s premises.
Section 13 authorises an employer to deduct levies from an employee who belongs to a trade union provided that such authorisation has been given in writing.
The employer has to remit the authorised deduction by no later than the 15th day of the month.
Section 19 of the LRA states that, should a trade union be a party to a council, they automatically have rights in terms of Section 12 and 13 regardless of the representativeness in any particular workplace. In order to establish a trade union’s representativity at the workplace, one needs to look at the total number of employees who belong to the trade union and divide it by the total number of employees at the workplace to establish the threshold figure.
Organisational rights may also be acquired by means of a collective agreement concluded between the employer and the trade union. The agreement between the parties should state the organisational rights which may be exercised by the trade union, the manner in which it may be exercised and the limitations that exercising these rights may be subject to.
Minority unions may be granted sufficient representation by the Commissioner at the CCMA or the Bargaining Council in certain instances however this is dependent on particular facts.
In Organizational Labour Affairs (OLA) vs Old Mutual Life Assurance Co (2003), OLA represented approximately 2% of the workforce. However, the Commissioner held that it was sufficiently representative on the basis that Old Mutual had previously granted organisational rights to members with fewer rights.
More recent arbitration confirmed the guidelines on the 30% representativity.
Section 14 of the LRA stipulates that in order for a representative trade union to have trade union representatives at the workplace the representative trade union must enjoy majority representation and have at least ten members who belong to the representative trade union. The number of trade union representatives will be dependent on the number of employees who belong to the trade unions.
Section 15 of the LRA stipulates the leave for trade union activities.
The employer and the trade union may agree on the number of days paid leave that the shop steward may take to perform trade union activities and to be trained.
Section 16 of the LRA stipulates the disclosure information.
An employer must disclose all relevant information to the trade union representative to allow the trade union to effectively perform their functions. An employer is not at liberty to disclose legally privileged and confidential information.
Organisational rights pertaining to Section 14, 15 and 16 are only applicable if a representative trade union enjoys a majority representation at the workplace.
ABOUT THE AUTHOR
Trishan Bisnath has been employed at SEESA Labour as a Legal Advisor since 2007. He obtained his Bachelor of Criminology in 2003 and LLB degree in 2006 from the University of KwaZulu-Natal.