Statutory rights of unions
The LRA confers four statutory rights on ‘sufficiently representative’ unions. These are the rights of access to employers’ premises, to the deduction and payment of union fees, to elect, utilise and train trade union representatives (shop stewards), and to information.
Access to the employer’s premises
The right of access is granted to all registered trade unions that are ‘sufficiently representative’, which in respect of access rights does not mean that it must be a majority union. The legislature accords a right to any office-bearer or officials of a representative trade ‘to enter the workplace in order to recruit members or communicate with members, or otherwise serve members’ interests, and to hold meetings with employees outside their working hours at the employer’s premises.
Collection and payment of union fees
Fees are the lifeblood of any union, for without adequate finances it could not pay officials, hire offices, offer training, or provide any of the many services a union is expected to afford its members. Without written authorisation, any deductions by the employer would be unlawful. Authority to make deductions may be revoked by giving a month’s written notice. However, the employer must continue making and paying over the deductions until the expiry of the notice period. With each monthly remittance the employer must furnish the union with a list of names of the members from whom the deductions have been made, details of the amounts deducted and remitted and the period to which the deductions relate; and copies of any notices of revocation.
Shop stewards (designated in the LRA as ‘union representatives’) are the infantry of the trade union. These elected officials perform the day to day function of looking after their members’ interests in particular workplaces. Their functions include ensuring that the employer complies with collective agreements and legislation, representing employees in disciplinary proceedings, airing employees’ grievances, and generally acting as a conduit between management and the workforce, and between the workforce and the union itself. No provision is made for shop stewards in workplaces with fewer than ten union members.
Trade unions need information which may be in the possession and fall within the exclusive knowledge of employers not only to bargain effectively. In the first place, a right to the disclosure of information is restricted to majority unions. Secondly, the information an employer is required to disclose must be relevant. Thirdly, employers are not required to disclose legally privileged information, or information which cannot be disclosed by law, or information that is confidential and, ‘if disclosed, may cause substantial harm to an employee or the employer’, or private personal information relating to an employee without the employee’s consent. To justify a refusal to disclose information requested by a union, an employer must prove that it is likely that harm will follow disclosure, and the harm will be ‘substantial’.
The right of access, to stop-order facilities, to elect shop stewards, to obtain leave for office-bearers and to information is accorded only to registered unions. In addition, only registered unions that are sufficiently representative qualify for these rights. The term ‘sufficiently representative’ is not defined in the LRA. In absence of a collective agreement stipulating a threshold, there is no rule of thumb regarding the proportion of members a union should have in the workforce before if should be accorded access and stop-order facilities.
Acquisition of organisational rights
The aspirant union must first notify the employer in writing that it seeks to exercise one or more of the rights conferred by the Act. The notice must be accompanied by a copy of the union’s certificate of registration and must specify the workplace in respect of which trade union seeks to exercise the rights, the membership of the trade union in that workplace, and the facts relied upon to demonstrate that the union is sufficiently representative. The notice must also specify the rights the union hopes to exercise and ‘the manner in which it seeks to exercise those rights’. The notice is a mandatory requirement, and may be disregarded by the employer if it is incomplete. Once a proper notice is received, the employer is bound to meet the union and ‘endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that workplace’. While the employer is bound to meet the union, it is not obliged to conclude an agreement. The following stage provides the inducement: If a collective agreement is not concluded, either the registered trade union or the employer may refer the dispute in writing to the CCMA, which is empowered to assist the parties by conciliation, failing which it may arbitrate. Any union seeking to acquire organisational rights must follow the procedure prescribed by section 21 of the LRA. The references in section 21 to ‘representative unions’ are to those unions which meet the particular thresholds set for the various organisational rights described in
section 12 (access to the workplace), 13 (stop-order facilities), 14 (shop stewards), 15 (paid leave for union officials) and 16 (disclosure of information). To qualify for rights of access and stop order facilities, a union must be at least ‘sufficiently representative’. To qualify for the right to have its shop stewards recognised by the employer, and for the right to information, a union or two or more unions combined must have as members a majority of workers employed in the workplace concerned. On the face of section 21, therefore, the only way unions can acquire organisational rights is through a collective agreement as contemplated in section 21(3) or, failing such agreement, through arbitration.
The employer and the employee must ‘endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that workplace’. The collective agreement referred to here is generally known as a recognition agreement, which provides the foundation of most bargaining relationships in the workplace.
Withdrawal of organisational rights
Employers and unions may still conclude recognition agreements privately. And even if the union has decided to follow the section 21 route, there is no need for arbitration if the parties voluntarily conclude a collective agreement under section 21 (3). Most recognition agreements contain termination clauses, which normally provide that the agreement may be terminated on notice by the employer if the trade union’s membership in the particular workplace drops below a certain level.
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