A trade union will be successful in gaining recognition at your workplace if it can prove to you or to the CCMA that it has sufficient representation amongst your employees. Having proven sufficient representation the union will be entitled to the following organisational rights:
- Access to the workplace by a union official to meet with its members and to conduct elections
- Deduction and pay over of union subscriptions
- Election of trade union representatives (i.e. shop stewards)
- Leave for trade union activities
- Disclosure of information.
Where union representation is low it might only win the right to access to the workplace, deduction of union subscriptions and leave for union activities. The idea behind this concept appears to be to allow a union – which does not have a majority, but which may have significant representation – to get a foothold into the workplace for purposes of trying to increase its representivity.
The law neither defines the meaning of sufficient representation nor sets a threshold for determining it. The Labour Relations Act merely gives CCMA arbitrators some broad guidelines for deciding whether a trade union has sufficient membership to merit organisational rights. These guidelines are so broad that they are not very helpful. The law requires that:
- ln order to qualify even to be considered for sufficient representation the union must be registered with the Department of Labour.
Arbitrators who are attempting to establish whether a union qualifies for being sufficiently representative must, in terms of the LRA, consider:
- The need to avoid excessive numbers of trade unions in a workplace.
- The need to minimise the financial and administrative burden on the employer that could result from having to deal with numerous unions.
- The nature of the workplace. While the Act fails to explain this guideline it appears that unions in a workplace where poor employment conditions could necessitate union intervention might be granted recognition more easily than one that has members in a workplace with a healthy environment.
- The nature of the rights sought.
- The nature of the sector (industry) into which the workplace falls.
- The organisational history of the workplace or any other workplace of the employer.
Where a union approaches an employer for organisational rights the parties are required to meet in order to try to conclude a collective agreement. Where such meeting(s) fails to result in an agreement, the union is required to refer the dispute to the CCMA for purposes of conciliation. That is, in the first instance, the CCMA must be given a chance to assist the employer and union to reach an agreement on the disputed issue of the granting of organisational rights. Should the conciliator succeed in resolving the issue then that is the end of the dispute.
It is where conciliation fails to resolve the dispute that the matter becomes complicated. This is because the LRA (via two of its sections which fall into two totally different chapters) allows the union two totally opposite choices as how to proceed further with the dispute:
Firstly, section 21 (7) allows either party to refer the matter to the CCMA for arbitration where the commissioner is required, for example, to apply the guidelines listed above for determining sufficient representivity. Secondly, instead of referring the matter to arbitration, the union is entitled to go on strike after following the prescribed procedures.
It is therefore, crucial for employers to be able to assess at the outset whether the trade union concerned is sufficiently representative or not. This is because, if the answer is ‘yes’ there is no point in refusing recognition. On the other hand, if recognition is not warranted you need to know that it is safe to refuse it.
Article by Ivan Israelstam, Chief Executive of Labour Law Management Consulting.