What are organisational rights?
What to do when a union wants to organise in your business
Organisational rights are rights that a registered trade union may exercise in a workplace. The purpose of organisational rights is to enable unions to organise and represent workers at their workplaces.
The Constitution of the Republic of South Africa, 1996 gives every worker the right to form and join a trade union and to participate in its activities. Organisational rights support a system of collective bargaining which is where a union (or unions) engage or negotiate with the employer (or employers) over terms and conditions of employment and other matters of mutual interest.
What are the different organisational rights?
The Labour Relations Act 66 of 1995 (LRA) identifies the following five organisational rights that may be agreed or granted under different circumstances:
- Trade union access to the workplace (section 12)
An office-bearer or official has the right to enter the employer’s premises in order to recruit members and serve their interests, and for members to vote at the employer’s premises in any election or ballot.
- Deduction of trade union subscriptions or levies (section 13)
The union may require an employer to make authorised deductions of union subscription or levies from employees’ wages and pay them over to the trade union. This is sometimes known as ‘union stop orders’.
- Trade union representatives (section 14)
Members of a registered trade union may elect representatives (shop stewards) at the workplace, and those elected may:
- represent employees in grievance and disciplinary hearings;
- monitor employer compliance with employment law and collective agreements and report any contraventions; and
- take reasonable time off, with pay, to perform or to be trained in their functions.
Note, a trade union representative or shop steward is an employee of the employer. The right to elect trade union representatives only applies to a registered trade union, or two or more unions acting jointly, that have as members the majority of employees employed by the employer in the workplace (known as ‘majority rights’).
- Leave for trade union activities (section 15)
An employee who is an office-bearer of the union, has the right to take reasonable leave during working hours in order to perform the functions of that office.
- Disclosure of information (section 16)
This is an example of a ‘majority right’ as discussed above. The union may require the employer to disclose all relevant information for the union to engage effectively with the employer in consultation or collective bargaining.
What is required for trade union representativeness?
Representativeness is the degree of representation a union has in a workplace. The Labour Relations Act identifies:
- Majority representativeness is easy to define: it is where the union has 50 plus 1 per cent of the employees in the workplace as members. Majority representativeness is needed for exercise of the right to elect trade union representatives and the right to seek disclosure of information.
- Sufficient representativeness is harder to identify. The number of members is relevant and the union must have sufficient presence in the workplace to warrant the granting of organisational rights. Sufficient representativeness is needed for access, stop order deductions and leave for trade union activities.
The LRA does not define the term “sufficient representivity”, but lists a number of factors that are taken into account to determine whether a union is sufficiently representative. These factors are:
- the nature of the workplace;
- the nature of the organisational rights that the union seeks to exercise;
- the nature of the sector in which the workplace operates;
- the organisational history at the workplace; and
- the composition of the workplace taking into account the extent to which there are employees assigned to temporary employment services, employees employed on fixed term contracts, part time employees or employees in other categories of non-standard employment.
Most representative: a commissioner in arbitration proceedings may grant a registered trade union that does not have majority representation at the workplace, similar rights conferred to a majority union, provided that it is sufficiently representative and that certain rights (in respect of trade union representatives and to disclosure of information) have not been granted to any other union in that workplace.
Significant interest: a commissioner in arbitration proceedings may grant a registered trade union or two or more registered trade unions acting jointly, who do not have the required number of members as set out in a collective agreement the same rights as a sufficiently representative union, irrespective of the threshold requirements of a collective agreement, provided they represent a significant interest (e.g. rock drillers in a mining company or pilots working for an airline) or a substantial number of employees in the workplace and the commissioner has applied his/her mind to the legal provisions concerning the granting of organisational rights.
How does a union get organisational rights?
Often, employees employed by large employers are unionised. However, it is not unusual for a smaller business to be approached by a union demanding union or organisational rights.
The procedure to get organisational rights requires that the registered trade union notifies the employer in writing that it seeks to exercise one or more of the organisational rights in a workplace. This notice must be accompanied by the union’s certificate of registration and must specify:
- The workplace in respect of which trade union seeks to exercise these rights;
- The representativeness of the trade union in that workplace, and the facts relied upon to demonstrate that it is a representative union, and
- The rights that the trade union seeks to exercise, and the manner in which it seeks to exercise these rights.
Within 30 days of receiving the notice the employer must meet the registered trade union and try to conclude a collective agreement on how the trade union will exercise its rights. A collective agreement is simply a written agreement between one or more registered trade unions on the one hand and one or more employers on the other. If there is agreement on the rights to be granted, a collective agreement on organisational rights should be entered into in writing.
If a collective agreement is not concluded either the union or the employer may refer an organisational rights dispute to the CCMA. The CCMA will attempt to resolve the dispute through conciliation.
What happens if conciliation at the CCMA fails to resolve an organisational rights dispute?
If the dispute remains unresolved between the employer and the registered trade union, either party may request arbitration or, if the dispute concerns section 12 to 15 rights, the employees have the option of exercising the right to strike provided the proper procedures are followed.
If the union has given notice of the proposed strike, it may not exercise the right to refer the matter to arbitration for a period of 12 months from the date of that notice.
What happens at the arbitration of an organisational rights dispute?
The commissioner will hear evidence and argument to determine the level of representativeness of the union in the workplace. In particular, the commissioner will consider the completed stop order deduction forms. In order to determine the membership or support for the union the commissioner may –
- Make any necessary enquiries;
- Where appropriate, conduct a ballot of the relevant employees; and
- Take into account all other relevant information.
The employer must cooperate with the commissioner and make available all information and facilities necessary for this purpose.
Before ordering organisational rights, the commissioner must take into account the need to minimise the number of unions in a single workplace and the need to minimise the financial and administrative burden on the employer, as well as all the factors identified above. These are particularly important in small business, where the employer’s administrative capacity is limited.
Sometimes there is a dispute about what constitutes the workplace, in which case the commissioner will need to determine this, taking into account whether the workplaces are independent of each other in terms of their size, function and organisation.
What if a union wants to exercise organisational rights where another union controls access?
If the union wants to exercise organisational rights at a workplace where another union controls access to the workplace, that holder of the organisational right must be given an opportunity to participate in the arbitration proceedings.
Where a union does not have a majority in the workplace, it may be granted section 14 and section 16 rights if it is the most representative and it already enjoys sections 12, 13 and 15 rights.
Note: Registered trade unions who are parties to a bargaining council automatically have the rights contemplated in sections 12 and 13 in all workplaces within the registered scope of the council regardless of their representativeness in any particular workplace.
An employer who alleges that a trade union is no longer representative may apply to the CCMA to withdraw any organisational rights conferred by the Act.
How should organisational rights be exercised?
Not one of the organisational rights is absolute. Each is qualified by what is reasonable in the circumstances, particularly taking into account what is reasonable for a smaller business given its limited capacity and resources. The qualifications are as follows:
- Trade union access to the workplace
Meetings between the union and its members at the employer’s premises should take place outside the employer’s working hours, unless agreed to otherwise. The time and place must be reasonable to safeguard life or property and to prevent the undue disruption of work.
- Deduction of trade union subscriptions or levies
- Deductions should be paid over to the union within seven days.
- An employee may revoke authorisation of deductions by giving the employer and the trade union one month’s written notice.
- The employer is entitled to manage administration in a practical manner and implement a reasonable notice period, or restrict multiple changes within a certain period.
- Trade union representatives
The number of trade union representatives is governed by the following formula:
- if there are 10 members of the trade union employed in the workplace, one trade union representative;
- if there are between 11 and 50 members of the trade union employed at the workplace, two trade union representatives.
Shop stewards are entitled to take time off with pay to perform or to be trained in their functions provided there is proper notice and minimum disruption to work. In a smaller business this will need to be limited based on the business’ ability to carry on operations in the absence of the person.
- Leave for trade union activities
- The union and the employer may agree to the number of days leave, the number of paid days leave and the conditions attached to the leave.
- The amount of leave must be reasonable relative to the capacity of the employer to grant leave.
- Paid and unpaid leave may be considered, as well as working in time if practical.
- Disclosure of information
An employer is not required to disclose information:
- that is legally privileged;
- that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of court;
- that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
- that is private or personal relating to an employee, unless that employee consents to the disclosure of that information.
Disputes about disclosure of information can be referred to the CCMA for arbitration. If at arbitration a commissioner decides that the information is relevant, but that it is confidential the commissioner must balance the harm that disclosure is likely to cause to an employee or employer against the harm that failure to disclose is likely to cause to the union.