The effect of the amendments to the #Labour Relations Act on a union’s right to organise in the workplace
Employers have long been able to protect themselves against the union’s rights to acquiring majority rights in their workplace by the way in which section 11 to 16 of the Labour Relations Act have been drafted with regards to majority representation.
Traditionally, a minority or representative trade union had to have one third or 33% representation, before they would only be afforded section 12 (access to the workplace), Section 13 (membership-fee deductions) and Section 15 (leave for trade union office bearers) rights. Therefore, unless a trade union could prove at least 50%+1 representation in the workplace, they were not entitled to Section 14 (shop stewards) and Section 16 (disclosure of information) rights, the so—called majority and more intrusive rights.
Unfortunately, in terms of the new amendment to section 21, and specifically subsection 8A, a minority union now has the ability to acquire the same rights that was previously only afforded to a majority trade union. It has allowed for the so called “most representative” trade union to acquire majority rights, even though their representation falls far short of the required minimum.
The amendments allow a minority trade union to approach the CCMA or Bargaining Council through a referral for arbitration for organisational rights. At arbitration, the commissioner may award the union section 14 rights (shop stewards) even though the union does not have the 50%+1 majority previously required. The commissioner may however only award this right as long as:
- The union is entitled to section 12, 13 and 15 rights
- No other trade union has been afforded the right to shop stewards (section 14) by the employer or a commissioner in the workplace
The above mentioned would mean that as long as the union is sufficiently represented (33%), they may approach the CCMA to further extend their rights. It is however important to remember that the union does not automatically acquire section 14 rights through the new amendments based on their representativeness alone and will only acquire this right if it is granted at arbitration and they comply with all the requirements as mentioned above. Furthermore the amendments do not convey section 16 rights as well. This will be acquired only once majority is reached as per the old regime.
For advice on how to circumvent the implications of the above amendments, please contact your nearest CEO branch.