Employers and organisational rights generally present themselves like oil and water, a relationship born out of opposing views, with each party trying to obtain the best scenario to suit their relevant constituents, while never really homogenising. While these organisational rights and consequent relationships between the parties may come about born out of the inherent juxtaposition of the party’s interests, the Labour Relations Act (LRA) specifically provides for and allows trade unions to obtain certain rights within a workplace subject to a few prescripts.
Organisational rights can present either in terms of Sections 12 to 16 of the LRA, with both Sections 12 and 13 rights being conferred when a trade union has sufficient representation, generally around the 30% mark, while Sections 14 to 16 rights are usually conferred when a trade union enjoys majority representation in the workplace, that is at least 50%+1.
What often happens in practice is that a single trade union, trade union A, may enjoy representivity in a particular workplace, but that the level of representivity falls below the requisite threshold, thereby making them ineligible to obtain rights in terms of the LRA. There may be another trade union in the same workplace, trade union B, that also enjoys a certain level of representivity, which, while may be better than A, is still not sufficient to entitle union B to rights as per the LRA. The question then arises, can these two unions jointly act to obtain organisational rights in the workplace? The answer is yes. Section 11 of the LRA provides that “…unless otherwise stated, “representative trade union” means a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace.”
From the above Section, the LRA specifically provides for a mechanism whereby two or more unions acting jointly can obtain organisational rights within a workplace. While Section 11 provides for such a scenario, it is important for employers to keep in mind that in order for a trade union or two or more unions acting jointly to obtain organisational rights, the relevant prescripts of the LRA need to be followed, such as addressing correspondence to the employer indicating their intention to obtain the relevant rights as well as submitting proof of their respective registration and verification of membership in that particular workplace. Failure to do so may give rise to a jurisdictional point being raised at the CCMA should the matter proceed to such a forum.
In closing, while employers may inherently be resistant to trade unions obtaining organisational rights in the workplace, should the union meet the relevant threshold(s) in terms of the LRA, it is better for an employer to rather embrace the trade union and foster good working relationships from the start to ensure a mutually beneficial relationship for both parties.
Article by Daniel van der Merwe
National Collective Bargaining Coordinator