It often occurs that an employer receives the dreaded email that his employees have joined a union. The union will inform the employer that his employees have joined their union together with a list of demands and/ or requests. This then leads to the employer asking, “what now?”
It is important that the employer must remember that the right of an employee to join a union is embedded in Section 18 of the Constitution of South Africa.
Although the employee has the right to freedom of association in order to belong to a union, the Labour Relations Act regulates these rights.
Before any rights are given to the union, the employer has the right to first request the following documents from the said union:
• Registered trade union certificate- only registered trade unions have the right to trade in the workplace. Should the union not be in possession of a registered trade union certificate, the employer has the right to refuse the union in the workplace.
Registered scope of the union*- the union is only allowed to trade within their registered scope. Should the employer’s business not form part of the scope, the employer is allowed to refuse the union in the workplace. This was also confirmed in the recent Labour Appeal Court Case of Lufil Packaging (ISITHEBE) v the CCMA, NUMSA and others DA8/2019, where it clearly stipulates that no union is allowed to trade outside their registered scope.
*The registered scope of a union is the specific trade and/or industry that the union is registered to trade in.
Should the union be registered, and should the union’s scope of application allow them to recruit members in the employer’s industry and/or sector of work, a verification meeting must be held with the union.
The purpose of this Verification meeting is for the following:
• For the union to introduce themselves to the employer;
• For the union’s membership to be verified;
• To grant certain union = rights, depending on the number of employees they have as their members.
Once the union has introduced themselves, their membership must be verified. Union membership is verified by scrutinising the membership forms that the union submitted. This is done in order to verify that the employees of the business did indeed join the union.
The total number of employees who have joined the union will then be compared with the total number of employees in the workplace. This comparison will determine which rights the union will be entitled to in terms of the Labour Relations Act.
Directors and management will form part of the workforce and, therefore, will be taken into consideration during the verifying of the total amount of workforce.
The employer must have a list of the total workforce available should the union request confirmation of the number of the total workforce.
The verified union membership will be calculated as a percentage of the total workforce.
In terms of the percentage of membership, will the union be entitled to the following rights:
• 50% or less.
The union will be regarded as sufficient representation, and the following rights will be afforded to the union:
• Access to the workplace.
The employees may only meet with the union outside business hours, and the union must inform the employer in writing of any intention to meet with the employees and/or the employer.
• Deduction of the union monthly fees – the employer will deduct the union subscription fees from the employees’ salaries and pay such over to the union.
The employer can negotiate an admin fee for the above. Please also note that in terms of the Labour Relations Act amendments that even a union with less than 50% membership in a workplace may approach the CCMA to be granted majority status as per the below.
• 50% plus 1
The union will be entitled to a majority representation, and the following rights will then be afforded to the union:
• Access to the workplace;
• Deduction of the union’s monthly fees;
• The union are allowed to have union representatives, called shop stewards, in the workplace. The union will be entitled to following number of Shop Stewards based on their membership:
One shop steward if the union has ten employees as their members;
Two Shop Stewards if the union has more than ten employees as their members;
If there are more than fifty employees in the workplace, the union will be afforded two shop stewards for the first fifty employees and thereafter one shop steward for every additional fifty employees up to a maximum of seven shop stewards;
If there are more than 300 members of the trade union employed in the workplace, seven trade union representatives for the first 300 members, plus one additional trade union representative for every 100 additional members up to a maximum of 10 trade union representatives;
If there are more than 600 members of the trade union employed in the workplace, ten trade union representatives for the first 600 members, plus one additional trade union representative for every 200 additional members up to a maximum of twelve trade union representatives; and if
There are more than 1000 members of the trade union employed in the workplace, 12 trade union representatives for the first 1000 members, plus one additional trade union representative for every 500 additional members up to a maximum of 20 trade union representatives;
• Shop stewards (union representatives) will be afforded paid leave for trade union activities. This is additional to their annual paid leave. The number of additional days will be negotiated with the union.
Request the union to inform the employer in writing who the elected shop steward and/or Shop steward are. (The employer must remember that once the employer intends to have a disciplinary hearing against a shop steward, a shop stewards consultation meeting must be conducted.)
It is also important that the employer and the union draft a recognition agreement containing the rights afforded to the union. This will then intern guide the relationship between the parties in the future.
The above is the most common rights a union will be entitled to, the union is entitled to more specific rights in the Labour Relations Act. These rights will, however, not be addressed herein.
Should the union enjoy the majority in the workplace and the employer notice that their membership number has dropped in such an instance that the union is no longer the majority, the employer must inform the union in writing and give the union 30 days’ notice to rectify their representation. If the representation is not rectified after the 30 day notice period has been given, the employer may adjust the union’s right accordingly.
Even though the joining of your employees at a union always seems like a daunting experience, once the above is followed the daunting will turn into an amicable relationship with the union in the future.
Contact your Labour Legal advisor to assist your business with unions in the workplace, alternatively leave your contact details on our website.
About The Author:
Alicia Oberholzer started her career at SEESA in 2018 as a Legal Advisor. She obtained her LLB Degree in 2016 at the University of the Free State. She was admitted as an attorney in the Free State High Court in 2018.
References:
Labour Relations Act No. 66 of 1995 as amended
Lufil Packaging (ISITHEBE) v the CCMA, NUMSA and others DA8/2019