Employer ABC (Pty) Ltd employs 100 workers.  The union, CHEESE, recruited 30 of the 100 employees as members.  ABC (Pty) Ltd recognises CHEESE as a sufficiently representative union and affords CHEESE section 12 (access to workplace) and 13 (deduction of union fees) rights in the workplace in January 2015.

In January 2016 ABC (Pty) Ltd realises that 20 of the 30 CHEESE member employees have resigned as members of CHEESE and only 10 employees are still registered.  ABC (Pty) Ltd would like to stop deductions of union fees and union official’s access to the workplace seeing as CHEESE only has 10% members left in 2016 compared to 30% in 2015.

In terms of Section 12 to 16 of the Labour Relations Act 66 of 1995 (herein after referred to as the LRA) a union may acquire either sufficiently representative or majority rights in a workplace based on the percentage of members they recruited out of the total workforce employed in a workplace.

It is common practice that the union and the employer may agree upon terms and conditions of the new relationship by entering into a collective agreement after a union has been recognised in a workplace.

This agreement would usually include a clause which states that when a union’s membership percentage decreases to such an extent that they are no longer entitled to certain organisational rights the employer may ‘put the union on terms’ as per the collective agreement. Failing which, would result in a change to the rights they were entitled to when the collective agreement was signed.

The question then remains whether an employer, in the absence of a collective agreement may inform a union of the withdrawal of specific organisational rights as a result of the decrease in membership in the workplace.

Section 21(11) of the LRA provides employers with the answer and reads as follows:

“An employer who alleges that a trade union is no longer a representative trade union may apply to the Commission to withdraw any of the organisational rights conferred by this Part, in which case the provisions of subsections (5) to (10) apply, read with the changes required by the context”

Section 21(11) of the LRA is very clear in that an employer cannot by way of a written notice inform a union that, as a result of a change in the number of union members, the union will no longer enjoy majority rights but that they are only entitled to the rights afforded to sufficiently representative unions.

It is thus advisable that employers should first notify the applicable union in writing of their decline in membership and provide the union with a 30-day period in which to increase their membership.

Should there be no response thereto; the employer may then refer the matter to the Commission by way of completing and submitting a 7.11 referral form, in order to withdraw any of the organisational rights previously conferred to the applicable union.

An employer’s referral to the CCMA will be dealt with in a similar manner as referrals received by an aggrieved employee.

The CCMA will notify both parties of the date on which conciliation will take place.  If the parties cannot resolve the matter, the employer may refer the matter to be resolved through Arbitration.

It is very important to note that the mere fact that the union’s membership has declined does not automatically imply that all of their rights in the workplace will be withdrawn by the Commission.

Amendments to the LRA have shown that sufficiently representative and majority union rights can no longer stand or fall based purely on a numbers-game.

In determining which/whether rights will be withdrawn or which rights may be conferred the Commissioner:

  1. Must seek:
    1. to minimise the proliferation of trade union representation in a single workplace;
    2. to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one trade union.
  2. Must consider:
    1. the nature of the workplace;
    2. the nature of the organisational rights that the employer seeks to withdraw;
    3. the nature of the sector in which the workplace is situated;
    4. the organisational history at the workplace; and
    5. the composition of the work-force in the workplace.

If an employer finds himself in a similar situation where the status quo is in limbo, the employer cannot unilaterally disregard the rights which were initially granted to the union before following the above mentioned steps.

Article by: Meghan Laubscher

CEO Dispute Resolution Official – Bloemfontein