EXPERT ADVICE: You and the labour law

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting.

A trade union will be successful in gaining recognition at your workplace if it can prove to you or to the CCMA that it has sufficient representation amongst your employees. The question is, what constitutes sufficient representation.

The organisational rights provided to trade unions by the LRA are:

• Access to the workplace by a union official to meet with its members and to conduct elections
• Deduction and pay over of union subscriptions
• Election of trade union representatives (i.e. shop stewards)
• Leave for trade union activities
• Disclosure of information

The concept of a “sufficiently representative trade union” is not defined by the LRA which leaves it to the CCMA to decide whether the union is sufficiently representative by checking whether it is registered with the Department of Labour and by applying the following broad guidelines:

• The need to avoid excessive numbers of trade unions in a workplace
• The need to minimise the financial and administrative burden on the employer
• The nature of the workplace
• The nature of the rights sought
• The nature of the sector (industry) into which the workplace falls

The organisational history of the workplace or any other workplace of the employer.

Where a union approaches an employer for organisational rights the parties are required to conclude a collective agreement. Where agreement fails either party may refer the dispute to the CCMA.

Where conciliation fails to resolve the dispute the following options exist:

• Firstly, either party may refer the matter to arbitration where the commissioner is required, for example, to apply the guidelines listed above for determining sufficient representivity
• Secondly, instead of referring the matter to arbitration, the union is entitled to go on strike after following the prescribed procedures

It is therefore crucial for employers to be able to assess whether the union concerned is sufficiently representative or not. This is because, if the answer is “yes” there is no point in refusing recognition. On the other hand, if recognition is not warranted you need to know that it is safe to refuse it.

Details: 011 888-7944, 0828522973 or ivan@labourlawadvice.co.za

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