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.