In previous articles on the topic of organisational rights, we have mentioned that when it comes to the establishment of organisational rights at a plant level, the approach that is normally used is to observe section 21 of the Labour Relations Act. However, when it comes to collective bargaining on an industry level, it should be noted that the bargaining council should be in possession of a certificate of representation in terms of section 49 (4), which confirms the relevant representativity levels of both organised labour as well as employer organisations who are party to that specific council.

Thereafter, upon conclusion of the negotiations regarding the collective agreement by the relevant parties to the council, and for the collective agreement to be extended to non-parties, the parties to the council need to comply with section 32 of the Labour Relation Act in order to have the agreement(s) extended to non-parties. It is very important that due process needs to be followed in that the Minister of Employment and Labour will need to be satisfied that either organised labour or employer organisations represent the majority of the members within the industry. When the collective agreement is extended to non-parties, that is the only time the relevant trade unions who are a signatory to the collective agreement will automatically be entitled to sections 12 and 13 rights in terms of the Labour Relation Act.

In such an event and before the employer can make any deductions and/or grant the trade union access to the workplace, the onus would still be on the relevant trade union to prove active membership of the said employees affiliated with the trade union. It further needs to be noted that, with regards to section 12 of the Labour Relation Act, the trade union would still need to notify the employer timeously regarding access to the workplace pertaining to recruitment purposes. This, however, is still predicated on the condition that the employer falls within the registered scope of the bargaining council; that is the only time the trade union will be automatically entitled to those organisational rights.

Where it may happen that a collective agreement is concluded in a bargaining council but is not extended to non-parties, employers who are members of the relevant employer’s organisations that are signatories to the relevant agreement would then be obligated to grant signatory trade unions the rights as indicated above. Where, however, an employer is not a party, by virtue of not belonging to a signatory employer organisation, to a collective agreement, the trade union would not enjoy sections 12 and 13 rights and would need to go about obtaining same in accordance with section 21 of the Labour Relations Act.

Article by Ernest Masupye

Senior Collective Bargaining Co-Ordinator