In order for a union to be granted organisational rights, it needs the prescribed percentage membership in the workplace as set out by the Labour Relations Act 66 of 1995.
The Labour Relations Act defines the workplace as “the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the places where employees work in connection with each independent operation, constitutes the workplace for that operation”.
The definition of a workplace plays a pivotal role in determining whether or not a union has enough members to enjoy one or more of the respective organisational rights.
This is especially true of site based operations or where operations take place on the premises of the client, an example thereof being the security industry.
The question that then needs to be answered is whether each individual site, constitutes a separate workplace or forms part of one single workplace?
In Chamber of Mines of South Africa obo Harmony Gold Mining Company Ltd and Others v Association of Mineworkers of South Africa and Others it was held that the following factors will suggest a single workplace: all operational decisions are subject to approval by a central board, that all operating procedures are standardised across an employer’s branches and are determined by a central board and that the production planning and financial management of the business is centralised.
It was further held in the above case that “[w]hat is required is an application of the definition of ‘workplace’ to the facts and a determination of the place or places where an employer’s employees work and whether the employer’s mines, to the extent that they comprise of different operations carried on by each employer, can be said to be independent of one another by reason of their size, function or organisation”
The point of departue would therefore be, in line with the definition, that all places where the employees of an employer work will constitute a single workplace unless two or more operations of the employer are independent of one another by reason of size, function or organisation. These operations will then constitute separate workplaces.
Employers should be proactive in determining, whether their operations constitute a single workplace or separate workplaces, specifically employers with more than one operation or where their operations are site based.
Employers need to be vigilant when union approaches the workplace claiming they are entitled to organisational rights. These rights should not be granted if the union does not have the prescribed membership percentages.
Members are urged to contact their nearest CEO office should they have any queries or concerns regarding organisational rights in the workplace.
Article by: Ilze Erasmus
CEO Dispute Resolution Official – Port Elizabeth