What should an employer look out for when they receive a letter from the Union seeking organisational rights in the workplace in terms of  Section 21 of the LRA?

The employer must first establish if the notification by the Union complies with the provisions of section 21.

Section 21(2) provides as follows:
“(2) The notice referred to in subsection (1) must be accompanied by a certified copy of the trade union’s certificate of registration and 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 he is a representative trade union, and
(c)  the rights that the trade union seeks to exercise and the manner in which it seeks to exercise those rights.”

If these conditions are not met, a jurisdictional point can be raised that the CCMA cannot entertain the dispute due to the Union’s non-compliance with the provisions of section 21(2) of the LRA.

This argument was successfully raised in a recent CCMA case where the Union did not describe the workplace as required in terms of Section 21(2)(a) of the LRA. The Union further failed to disclose the representativeness of the Union in an undisclosed workplace. It was merely submitted that the Union is sufficiently represented, but failed to disclose any numbers, percentage or specific reason why it is believed that the particular Union enjoys sufficient representation. The Union attached a copy of its registration certificate indicating that the Union was registered. Section 21(2), however, requires that the copy provided must be certified. In this matter, the certificate was not certified.

Section 21(2) further provides that the particular Union must specify the workplace and its representativeness in the particular workplace. In this particular matter, the Union did not deal with the issue of representation. There was no indication or description of the particular workplace that the Union had in mind regarding the rights to be exercised and the extent of the Union’s representativeness in the particular workplace. Attached to the CCMA referral was a handwritten list of names, which was assumed to be the Union’s members. However, the list of names did not indicate the Union’s representativeness in the particular workplace. In terms of its letter, the Union also demanded organisational rights as envisaged in terms of Section 14 and 16. This created the impression that the Union believed itself to be a majority union in the workplace. There was, however, no indication in the notice of its actual representativeness.

It is required of the CCMA to decide on the existence of jurisdictional preconditions for the exercise of statutory powers by the CCMA. These preconditions must then be adhered to before the CCMA can validly exercise its functions (see SACCAWU v Speciality Stores Ltd (1998) 19 ILJ 557 (LAC)). The LAC also held that Section 21(2) was a precondition to the acquisition of organisational rights and that the Commission cannot validly exercise the functions of Section 21 if the preconditions have not been complied with. A referral, therefore not in compliance with subsection (2), is null and void.

In Health and Hygiene Services V Seedat NO and others [1999], 11 BLLR 1153 (LC), the Court held that a Commissioner would exceed their powers if the Commissioner proceeds with arbitration proceedings in respect of organisational rights when the requirements of Section 21(3) of the LRA have not been complied with.

It is therefore of utmost importance that an employer ensures that when they receive a section 21 letter from the Union, that it complies with all its requirements outlined in this section.

Article by: Anesta Kruger
Dispute Resolution Official – Durban