In Hospersa and Zuid- Afrikaanse Hospital 7 (unreported CCMA award, 3 February 1997) cited in Du Toit et al (2015) 250 and Van Niekerk et al (2015) 373 the power play between Employer and Employees is described as:
“Organisational rights which make it possible for a trade union to build up, consolidate and maintain a power-base of sufficient strength among the employers’ employees”.
Section 213 of the Labour Relations Act (hereinafter “LRA”) describes organisational rights as a trade unions’ formal request made in writing, to represent employees in a workplace on a variety of selective rights. Many articles have been published on the topic of organisational rights, however, we find that many employers are still not fully aware of the duties, obligations as well as consequences of granting such organisational rights in the workplace.
Section 18(1) of the LRA emphasises that an employer and a majority trade union in the workplace may conclude a collective agreement to establish thresholds of representativeness to facilitate the exercise of the organisational rights set out in section 12, 13 and 15 of the LRA. In the Constitutional Court judgment of Police and Prisons Civil Rights Union v South African Correctional Services Workers’ Union and Others  ZACC 24 the court had to determine whether a collective agreement, concluded in terms of section 18 of the LRA, prevents the employer from granting organisational rights to trade unions who do not meet the threshold requirements set out in that collective agreement. The majority decision in this matter held that section 18 of the LRA does not prohibit collective bargaining between an employer and a minority trade union where there is a Section 18 collective agreement. In light of the fact that organisational rights may be granted to minority trade unions’ little has been highlighted on scenarios of when organisational rights are practiced in a workplace whereby several minority unions represent the workforce, or in the case whereby an employer has granted organisational rights to many minority trade unions.
Organisational rights in terms of Section 12 -16 of the LRA include: trade union access to the workplace, deductions of trade union subscriptions or levies, the appointment of trade union representatives, leave for trade union activities as well as disclosure of information. The LRA is silent in terms of the interpretation of the rights, for example, does access to the workplace mean entry to the workplace premises only, or does access to the workplace mean that a boardroom or office be provided to the trade union. How will access to the workplace be determined if the employer has more than one workplace or a separate head office? Can an employer deduct a fee for administrating a trade union’s subscription levy and will leave for trade union activities, be classified as paid or unpaid leave?
In our upcoming articles will delve into the details and effects for employers, when granting organisational rights for trade unions. This will include the consequences of granting organisational rights to minority trade unions, as in the case of Organisation of Labour Affairs v Old Mutual Life Assurance Company  9 BALR 1052 (CCMA) whereby organisational rights were granted to a trade union with only 2% representation of the workforce and what the possible implications of granting rights to minimal representation may give rise to.
Article by: Tammy Barnard
Senior Dispute Resolution Official – Pretoria