With the uptick seen in union negotiations in the past months, there have been disputes between employers and unions regarding the union’s access to the workplace. The Labour Relations Act sets out criteria for a union to have the right to access the employer’s premises:
- Firstly, the union should have over 30% of the employees in the workplace as its members;
- Second, the right to access the workplace should be subject to any conditions as to time and place that are reasonable and necessary to safeguard life or property or to prevent the undue disruption of work.
When these two criteria are met, the union has the right to:
- Hold meetings with employees outside their working hours at the employer’s premises;
- To vote at the employer’s premises in any election or ballot contemplated in that trade union’s constitution.
Many disputes have arisen on the specific working of this right in Section 12. The heading of this right states the union’s “right to access the workplace”, whereas, in the section’s wording itself, the section speaks of “employer’s premises”. What makes up a workplace was confirmed in the case of Chamber Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and Others v Association Of Mineworkers Of SA and Others, where the court indicated that a workplace is “where an employer’s employees work and whether the employer’s mines, if they comprise of different operations carried on by each employer. In contrast to the general rule is that an “Employer’s premises” is the place where the employer conducts its business from.
Many employers sit with the problem that their employees work at a “workplace” that is not the employer’s premises. We have to balance the Union’s right to access with the owner of that property (which is not the employer but a client of the employer) and their right to refuse entry.
The employer cannot deny the union access to that site (should the above criteria be met) based solely on the argument that the premises are not the employer’s premises. However, should the employer’s client refuse the union access, the union cannot force the employer to grant them access to that site as it is not the employer’s site. The employer does not control who is authorised to access that site. We advise that employers and unions try to arrange an alternative meeting location to avoid any unnecessary litigation.
Contact your nearest SEESA office for any advice regarding such disputes. Alternatively, please leave your name on our website for a SEESA representative to contact you.
About the Author:
Martin Engelbrecht is a Labour, Consumer Protection and POPI Legal Advisor at the SEESA Nelspruit branch. He obtained his L.L.B degree from North-West University. Martin is an admitted attorney of the High Court of South Africa with over five years’ legal experience in various legal fields, including Labour law, litigation, and Consumer Protection & POPI compliance.
Resources:
- Labour Relations Act 66 of 1995, as amended;
- Labour Relations Act 66 of 1995, as amended;
- Chamber Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and Others v Association Of Mineworkers Of SA and Others; In Re: Association Of Mineworkers And Construction Union and Others v Chamber Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and Others (J99/14) [2014] ZALCJHB 223; [2014] 9 BLLR 895 (LC); 2014 (11) BCLR 1369 (LC); (2014) 35 ILJ 3111 (LC) (23 June 2014).