It is common knowledge that trade unions are recognised within the 1996 Constitution of South Africa, which provides for the right to join trade unions and for unions to bargain collectively and have the right to embark on strikes (industrial action). These Constitutionals rights are further entrenched and expanded upon in the Labour Relations Act. While these fundamental rights may seem guaranteed, there is a limitation to them, which brings us to the important question, can a trade union make demands without having any organisational rights in the workplace? The answer is no.

In terms of section 21 of the Labour Relation Act, before an employer can start engaging with any trade union regarding their demands, an employer needs to be satisfied in terms of the Act that:

(1) The registered trade union notified an employer in writing that it seeks to exercise one or more of the rights.

  • (2) Furthermore, the notice referred to in subsection (1) above, must be accompanied by a certified copy of the trade unions certificate of registration and that the notice must specify:

(a) The workplace in respect of which the trade union seeks to exercise the rights.

  • (b) The representativeness of the trade union in that workplace, and the facts relied upon to demonstrate that it is a representative trade union and a majority trade union
  • (c) The notice must specify the rights they seek, to exercise and the way it seeks to exercise those rights.

Upon the employer’s satisfaction that the trade union has complied with the requirements of section 21 of the LRA, we always advise employers to request the trade union’s constitution to confirm if it does cover the scope of the employer’s main operation of the business. Following that, the employer may proceed to request the membership forms of the said employees whom the trade union alleged that have joined them to confirm the membership status.

Employers need to note that before we can deal with the trade union’s demands, a verification process needs to be conducted, to confirm the trade union’s representivity and that they do indeed represent the employees they claim to represent. Following the verification exercise, an employer will be able to determine if the trade union is a majority union or is only sufficiently represented; this will assist the employer to determine which organisational rights the trade union will be entitled to.

In an instance whereby the trade union has majority status in the workplace, which is 50%+1, only then the said trade union may submit their demands in writing, and the negotiations can take place on a plant level. Hence, it is important for employers, before engaging with the trade union, to confirm if the constitution of the trade union covers the scope of the operation of the business, the registration certificate is recognised by the Department of Employment and Labour, and they are a majority trade union.

Article by Ernest Masupye

Senior Collective Bargaining Co-Ordinator at Consolidated Employers’ Organisation