In our article last week, we referred to various forms and processes regarding centralised bargaining. This week we will delve headfirst into Recognition Agreements as one of the most common plant-level forms of collective bargaining and the potential processes involved therein.
A recognition agreement is the outcome of successful union recognition talks in the workplace, whereby an employer recognises a certain union(s) who is afforded right(s) called organisational rights as contemplated in Chapter 3, Part A and B (sections 11 to 26) of the Labour Relations Act (LRA). This enables the union(s) to represent and negotiate on behalf of employees in the workplace by affording the union(s) controlled access to the workplace. These mutual interests may include, but not be limited to, wages, benefits and working conditions of workers in the workplace. A recognition agreement ought to regulate whether the union(s) have sole negotiating rights for a bargaining group, or whether the employer recognises two or more unions jointly.
ORGANISATIONAL RIGHTS DISPUTES RELATING TO RECOGNITION AGREEMENTS
The term ‘recognition agreement’ usually features at some point in disputes regarding organisational rights, sought by the union in the employer’s workplace. The following needs to be established as good practice in terms of the LRA, before such a dispute proceeds, in considering recognition agreements: (this may be requested by any party that the CCMA Commissioner provides such a directive / ruling, binding the parties thereto)
- It must be established if the union complies with section 21 of the LRA, as amended. This entails that the union must have submitted its registration certificate and registered constitution (to establish its scope of application), both of which should be signed by the Registrar of Labour Relations at the Department of Employment and Labour (DEL), as well as positive proof of membership in the form of fully completed and signed membership forms of current member employees;
- It must be determined whether, legally, there is actually a dispute or not (i.e., such as previous unsuccessful meetings were held between the parties whereby, they could not come to consensus and whereby the union referred a dispute to the CCMA). A CCMA referral alone is not necessarily proof that a dispute does in fact exist. If no dispute exist parties should consider at the CCMA to settle the matter to meet to discuss a recognition agreement or be withdrawn by the union in its entirety.
- The legal definition of ‘workplace’ has to be determined on a case-by-case basis, based on the merits thereof (preferably agreed upon in a pre-arbitration meeting which has to be minuted and signed by all parties), this in turn may affect the union’s representation;
- If the dispute goes to arbitration, parties must conduct a pre-arbitration that is to be minuted and filed with the CCMA as per the CCMA directive dated 08 May 2020;
- Parties must consider conducting a verification exercise as good practice. This entails a plant level and minuted meeting to ensure accurate and updated union membership is confirmed. This in turn may be used as evidence whether the union is indeed sufficiently represented and/or having a significant interest. Other recognised unions in the workplace do have a vested interest and should be added to such a dispute.
- At this stage, subject to the findings above, parties may consider entering into a Recognition Agreement in order to avoid the dispute to proceed to either industrial action (with picketing rules in mind) or arbitration (this is the choice of the referring party being dominus litis, or in charge of the dispute – the union.
The classic argument regarding majoritarianism of 50%+1 union membership representation has shifted to the argument regarding principles of ‘sufficiently represented’ and ‘significant interest’ for the benefit of unions. These terms entail a much softer and broader application on a case-by-case basis.
In the matter of National Union of Metalworkers of South Africa v Tshwane University of Technology 2020 (11) BLLR 1141 (LC) the employer terminated a recognition agreement on the grounds that the union is not entitled to organisational rights due to the union not being sufficiently representative. The termination was found to be lawful. Initially the trade union was granted organisational rights (controlled access to the work place and stop order facilities for the union) by the employer falling in the sector in which the union was actually not entitled to organise by its own constitution. Therefore this led to the union organising outside of its own constitution.
The employer herein also relied on the judgment of National Union of Metalworkers of SA v Lufil Packaging (Isithebe) and Others 2020 (7) BLLR 645 (CC), in which the highest court had held that NUMSA’s constitution confined the union to the metal and related sectors and ruled that the union could not operate in the packaging industry until its constitution was amended. Furthermore, the union should be sufficiently represented and / or having a significant interest, which is to be determined on a case-by-case basis based on the merits of the matter.
NUMSA contended that it was entitled to an interim order confirming that it could continue exercising its organisational rights pending the outcome of a review of the employer’s decision to cancel the agreement. Having accepted that it had jurisdiction to entertain the matter as long as NUMSA relied on the provisions of the LRA, as opposed to wider constitutional rights, the Court noted that the employer had contended that it had cancelled the recognition agreement because the Lufil judgment had rendered it void. NUMSA contended the cancellation of the agreement amounted to unlawful administrative action because the employer was an organ of state (which the court found not to be). This submission of NUMSA was misguided because the cancellation of the agreement was an employment issue of relevance only to NUMSA and the employer. The parties were bound by the Lufil judgment unless and until NUMSA amended its constitution to permit it to organise in the tertiary education sector. The application was dismissed with costs.
Therefore, in closing it is important to note that Recognition Agreements should not be avoided at all costs, but indeed considered, as it provides surety and security for parties in regulating the relationship between parties; however making an informed decision before doing so.
The form of recognition agreements namely Closed Shop Agreement and Agency Shop Agreement will be discussed in the upcoming article next week.
Article by: Johann Preiss
National Collective Bargaining Coordinator