The question often arises from employers is whether the employer has any rights in terms of the Labour Relations Act (LRA), to deny a registered trade union access to the workplace?
Before looking at what rights the employer has, we need to look at the definition of ‘workplace’. The general rule is that all places where employees of an employer work constitute a single workplace. Only when an operator operates independently of the others does it constitute a separate workplace.
In South African Clothing and Textile Workers’ Union obo Members / Adcorp BLU, a division of Workforce Solutions (Pty) Ltd and another [2018] 12 BALR 1352 (CCMA), the union demanded access to the workplace and deduction of union subscriptions after having 53 members amongst 123 employees. Pepkor, a national company, refused to grant those rights and conceded that the 123 workers were deemed its employees by virtue of section 198A(3) of the LRA.
The evidence indicated that the Pepkor logistics operation consisted of 12 hubs. All 12 hubs are controlled by a central office. Therefore it constituted a single workplace. Viewed in this way, the union represented only about 5% of the logistic division’s workforce.
The mere fact that union recruits members do not mean that it is automatically entitled to organisational rights. The union had to prove that it was “sufficiently representative” in the workplace to qualify for the rights concerned. The norm is that the union requires 33% representation to enjoy ‘sufficient representation’.
The union was, accordingly, not entitled to exercise the organisational rights it sought.
The application was dismissed.
At the same token, employers must take cognisance of Section 21(8A). It allows the minority trade union the right to shop stewards in terms of Section 14 of the LRA. This right is not automatic and is only acquired through arbitration at the CCMA or Bargaining Council. It is, however, subject to two conditions:
- The trade union must at least be sufficiently represented (Section 12, 13 and 15)
- There must be no other trade union in the workplace that already has Section 14 rights.
Section 16 (right to access to information) will only be acquired once majority representation is reached.
Employers are urged to contact their nearest SEESA office should they have any queries or concerns regarding organisational rights in the workplace.
ABOUT THE AUTHOR
Ebrahim Moosa obtained an LLB degree from the University of South Africa. After completion of his degree, Ebrahim joined a firm of attorneys as a clerk and thereafter as a practising attorney. His speciality lies in Civil Litigation, Labour Law and various other areas of law. He joined SEESA in 2017 as a legal advisor, having vast knowledge from private practice.