Organisational rights are the umbrella term for several rights conferred by trade unions. These rights can include the right to hold meetings, the right to deduct union levies and the right to have access to the employer’s premises, to name a few. These rights can be found in sections 12 to 16 of the Labour Relations Act 66 of 1995 (hereinafter the “LRA”). It is important to note that these rights are not automatically bestowed to a trade union. A trade union must be a registered trade union and have acquired sufficient or majority employee representation to apply for such rights in the employer’s workplace.
Once the trade union has acquired these rights, the question that arises is whether the employer can withdraw these rights and, if so, how to go about doing it? For example: If a trade union in one year had 350 members out of 1000 workers (35% representation) and were granted organisational rights and the following year their member total dropped to 250 (25% representation), the employer may not unilaterally revoke the union’s organisational rights unless the reasonable steps as set out in a collective agreement or section 21 and 24 of the Labour Relations Act has been followed.
If a collective agreement were concluded granting the union organisational rights, the collective agreement would, in general, make provision for the reduction of union representation in the workplace, which would allow the employer to place the union on terms and if these terms are not met within a specified time frame, the organisational rights may be withdrawn. Suppose a collective agreement was not concluded, and the employer wishes to withdraw the organisational rights. In that case, the employer may refer the dispute in writing to the CCMA in terms of section 21 of the Labour Relations Act.
Section 21(11) of the LRA states-
“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.”
Before a dispute is referred to the CCMA, the employer should provide the trade union sufficient time to rectify or restore their membership. A period of 30 days should be sufficient, whereafter the dispute can be referred to the CCMA. The CCMA will first set the matter down for conciliation. If the dispute remains unsolved, the referring party may refer the dispute to arbitration, where a Commissioner will determine the outcome of the organisational rights dispute. When considering whether to withdraw organisational rights, the Commissioner will consider the following factors:
(i) to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and
(ii) to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union;
(b) must consider (The Commissioner)-
(i) the nature of the workplace; (ii) the nature of the one or more organisational rights that the registered trade union seeks to exercise;
(iii) the nature of the sector in which the workplace is situated; and
(iv) the organisational history at the workplace or any other workplace of the employer; and
(c) may withdraw any of the organisational rights conferred by this Part and which are exercised by any other registered trade union in respect of that workplace if that other trade union has ceased to be representative.
Therefore, even if the union’s membership representation has decreased to such an extent, they do not automatically forfeit their organisational rights. The employer must follow a process as set out in a collective agreement or the LRA before considering withdrawing the union’s organisational rights.
Article by: Dirk Hamman
Dispute Resolution Official – Klerksdorp