Trade Unions (TUs) need not be associated with the phrase Trouble United. If they are treated with the necessary respect in the workplace and are allowed fair negotiations as per the relevant legislation, they could be beneficial to your business.
Effective negotiations have helped shape the history of the world and in the same way it can shape the future of a business. A Trade Union’s principal purpose is to regulate relations between employees and employers and negotiations with them are aimed at reaching a mutual beneficial agreement.
Knowing a legitimate Trade Union
Trade Unions were introduced in order to protect the rights of employees in the workplace. Before you recognise a Trade Union, they first have to comply with Section 21 of the Labour Relations Act (LRA). This section stipulates that they have to provide the employer with a certificate of registration, inform the employer in writing which rights they wish to exercise and identify the workplace in which they wish to operate. After this, the employer will have to establish the representatives of the union. If the Trade Union does not comply with all the requirements of Section 21, the employer has no obligation to meet or bargain with them and if a union is not registered, they have no rights in the workplace.
The Scope of Application
The constitution of the Trade Union will set out a scope of application, setting out sectors in which they can operate in. If their scope does not permit them to operate in your sector, there is no obligation on the employer to recognise the union. The union can, however, still refer this to the CCMA or relevant Bargaining Council.
Which organisational rights the employer will grant the Trade Union depends on their representation in the workplace. They can either be sufficiently represented (20% – 50%) or they can be represented by the majority of the workforce (50% plus 1). Another way that a union can gain organisational rights in the workplace is by being a party to the Bargaining Council under which the company operates.
Once a Trade Union has complied with all the requirements as stipulated above, the employer has to meet with them within 30 days and at this meeting the employer and employees will conclude a recognition agreement stipulating all the rights that has been conferred on the Trade Union.
Sufficient Representation and Organisational Rights
When a Trade Union is sufficiently represented in the workplace, the employer will grant them the following organisational rights:
Access to the workplace which will include to recruit, communicate and serve members. Important to note is that meetings with their members must take place during non-working hours.
The deduction of trade union subscription fees after employees have given written permission. The employee can give 1 months’ notice if he/she wishes to stop this deduction.
The leave for trade union officials. It should be noted that this is not a shop steward, but in fact an employee who is also an office bearer with the union and represent the interests of workers from a particular industry or occupation in discussions, negotiations or disputes with employers. They work to maintain and improve wages, working conditions and workplace safety. In order to be granted this leave they will have to give reasons for leave and have to provide proof of the leave – be sure to stipulate this in the recognition agreement.
Majority Representation and Organisational Rights
It is important to consider all employees when establishing whether a Trade Union has majority representation. Once a Trade Union has proved that they have majority representation in the workplace they will be granted the following rights by the employer:
Electing shop stewards if they have at least 10 members in the workplace. Members are restricted with regards to the amount of shop stewards that they may elect and it will depend on the number of members in the specific workplace. The union will also have access to relevant information which will assist them in their duties and in the collective bargaining process. Relevant information will exclude legally privileged documentation, documents in contravention of a prohibition (court order/law), confidential information and the personal information of an employee, unless the employee consents to this information being given to the union. If a dispute arises about disclosure of documentation either party can refer the matter to the CCMA for conciliation.
In the recognition agreement you have to stipulate what will happen once the union drops below the threshold. It should clearly state that the union has 30 days upon being requested to establish their status and that failure will result in the rights being withdrawn.
ABOUT THE AUTHOR
Cornel Wessels obtained her LLB degree from the University of Stellenbosch in 2006. After her studies she lived in the United Kingdom for 4 years where she worked as a Legal Assistant for Breytenbach Solicitors. She returned to South Africa in 2011 and commenced her articles with A Batchelor and Associates in January 2011. She was admitted as an Attorney of the High Court in September 2013 after which she started with SEESA Labour as legal advisor.