The Labour Relations Act (LRA) provides certain organizational rights on trade unions which are aimed at assisting trade unions in establishing a foothold within the workplace. Although there is no duty to recognize a trade union within the workplace the CCMA can compel an employer to grant these organizational rights.
These rights include limited access to the employer’s workplace for the purpose of holding meetings with employees, the deduction of trade union subscriptions from the employees’ wages and paying the amounts to the union, the election of workplace shop stewards (union representatives) and the disclosure of information in specific circumstances.
Should the union wish to exercise any of these rights they must inform the employer, in writing, of their intention. The notice must be accompanied by a certified copy of the union’s certificate of registration, the workplace in which the union seeks to exercise the rights, the representativeness of the trade union within the workplace (percentage of employees who have joined the union) including the stop order forms and the rights that the union seeks to exercise within the workplace (Section 21 (1) & (2) of the LRA).
The employer must meet with the trade union within 30 days and endeavor to conclude a collective agreement which will regulate the manner in which the union will exercise the rights. Should the parties fail to conclude a collective agreement either party may refer a dispute to the CCMA.
The CCMA must attempt to resolve the matter through conciliation. It should be noted that a referral in terms of section 21(4) will always be set down for the conciliation process and never a con/arb process. Should the conciliation remain unresolved the matter may be referred to arbitration (in terms on section 21(7) or the union may serve notice of intention to embark on industrial action (strike). Should the union elect the strike option, it is precluded from referring the same dispute to arbitration for a period of 12 months from the date of notice to strike.
Should the union elect to refer the matter to arbitration, the arbitrator will consider various factors when decided whether to grant organizational rights to the union, including: the nature of the workplace, the organizational rights the union seeks to exercise, the nature of the sector in which the workplace is situated and whether there was any organizational history within the workplace.
Article by: Stephen Kirsten
CEO Regional Manager – Cape Town