The Labour Relations Act provides that any union who may prove sufficient or majority representation within a workplace is entitled to the rights as set out in section 12 to 16 of the Act.
Many employers have been approached by trade unions seeking organisational rights, who are not unions normally associated with the industries within which the employer operates. In terms of sections 95 and 96 of the Act, trade unions must fulfil specific requirements in order to be registered with the department of Labour. One of these requirements is that a constitution must be adopted by the trade union. In terms of the constitution a union will stipulate within which industry they aim to organise.
Although the Labour Courts have established that trade unions are entitled to specific functions, such as participating in collective bargaining, representing members at the CCMA or bargaining council and organising strikes, irrespective of the scope of application of their constitutions, the question has arisen whether a trade union is entitled to organisational rights when it attempts to organise in an industry which falls outside their scope of application as stipulated in their own constitution.
When a union refers a dispute to the CCMA regarding organisational rights in terms of section 21, the union may elect to refer the dispute to arbitration or embark on a protected strike, with sufficient notice, should the conciliation process fail and a certificate of non-resolution be issued.
Should the matter be referred to arbitration, the arbitrating commissioner will under normal circumstances consider specific elements contained in section 22 of the Act.
Where a union attempts to acquire organisational rights via arbitration in an industry which falls outside their scope as contained in their constitution, an employer may raise an in limine objection which must be dealt with by the arbitrating commissioner.
In terms of SATAWU v Telekleen-Compukleen  BALR 786 and CEPPAWU v Popsnacks  BALR 1156 the CCMA found in both instances that a trade union is bound by their constitution, and therefore are not entitled to organisational rights in industries which fall outside the scope of application of their constitutions at arbitration proceedings. In the Labour Court judgement of Bidvest Food Services v NUMSA C946/14, the court agreed with the finding of senior commissioner Vuzumsi Landu, when he ruled that had the trade union elected to refer their organisational rights dispute to arbitration at the CCMA where they attempted to organise outside their scope of application, they may have failed. This was also confirmed by Commissioner Andrew van Diemen in the matter between NUM and Heimo Schulzer Gardens under case number WECT17502-16 in the CCMA Cape Town.
It is therefore clear from the above mentioned case law that should a trade union attempt to enforce organisational rights as contained in section 12 to 16 of the Act in an industry which falls outside their scope of application as contained in their constitution, and the union elects to refer the dispute to arbitration at the CCMA/Bargaining Council, the application will fail.
Employers are therefore advised to always obtain the union’s constitution/scope of application upon receiving a request to exercise organisational rights in their workplace.
Employers are also warned that even though at arbitration proceedings a union attempting to organise outside their scope of application will fail when it comes to organisational rights, the union may still elect to not refer the dispute to arbitration and elect to rather resort to industrial action.
When you receive a notice of arbitration kindly contact your nearest CEO office for assistance.
Article by: Casper Geustyn
CEO Dispute Resolution Official – Cape Town