Section 12 of the Labour Relations Act regulates the trade union’s access to the workplace as follows:
- Any office-bearer or official of a representative trade union is entitled to enter the employer’s premises to recruit members or communicate with members, or otherwise serve members’ interests.
- A representative trade union is entitled to hold meetings with employees outside their working hours at the employer’s premises.
- The members of a representative trade union are entitled to vote at the employer’s premises in any election or ballot contemplated in that trade union’s constitution.
- The rights conferred by this section are subject to any conditions as to time and place that are reasonable and necessary to safeguard life or property or to prevent the undue disruption of work.
Employers might feel alarmed by the idea that a trade union can access their workplace, but section 12 of the Labour Relations Act regulates how trade unions can access an employer’s workplace. The main reason for this right to access the workplace is for a trade union to bargain effectively with the employer but not without limitation.
The commissioner in SACTWU v Sheraton Textiles (Pty) Ltd  5 BLLR 662 (CCMA) imposed the following limitations on access to the workplace:
- Before entering the premises, the trade union must give the employer 48 hours’ notice in writing.
- Any meetings have to take place over lunchtime or after working hours for no longer than two hours in the canteen or such other place as is agreed upon.
- The trade union is only entitled to two meetings per month for purposes of recruitment or communicating with its members.
Access to the workplace is limited by not allowing access during working hours of employees. The production of an employer and or duties of an employee cannot be disrupted as also determined in Section 12(4) of the Labour Relations Act. It is important to note that a trade union is allowed to meet with their members on the premises of the employer however, parties can still agree in terms of a recognition agreement on the location of such meetings and provide guidelines on this. For example, an employer may indicate in the recognition agreement that the trade union may only meet on one particular site or a specifically designated area of the workplace. This however does not apply to domestic workers. Section 17(2) stipulates that a trade union is not allowed to access the premises of a home of an employer unless an employer agrees thereto.
Limitations on the right to access the workplace:
In the case where the “workplace” of the employer consists of more than one workplace, the specific workplace for purposes of meetings must be indicated to the trade union. An example of a fair limitation to the right of access to the workplace, especially in the current Covid-19 pandemic, could be for parties to agree to only allow one or two trade union officials at a time on the premises of the employer where they would also have to undergo screening before entering the premises.
Unfortunately, it might also happen that an employer refuses to work with a specific trade union official due to certain reasons. To promote collective bargaining, an employer can request a trade union to work with a different trade union official if the reasons are reasonable and justifiable. This must be done in writing to the trade union for them to respond. It must be noted that the employer’s property is still his private property and the employer can even go as far as to obtain an interdict against the specific union official to restrain the union from entering his property. In Setlogele v Setlogele 1914 AD 221 the Court held that an applicant desirous of approaching a court for a final interdict must demonstrate: (i) a clear right, (ii) an injury actually committed or reasonably apprehended; and (iii) the absence of an alternative remedy. These requirements were also reaffirmed by the Constitution Court in Pilane v Pilane & Another 2013 (4) BCLR 431 (CC).
In terms of Section 22(1) of the LRA, any party can refer a dispute to the CCMA for the interpretation of Section 12. Therefore, in this instance, an employer can also refer a dispute like this to the CCMA. If the dispute can then not be resolved during conciliation, the matter may be referred for arbitration where the commissioner will then issue a binding arbitration award.
Article by: Marteleen Lindemann
Dispute Resolution Official – Klerksdorp