WHEN CAN A TRADE UNION DEMAND RECONITION?
WHEN CAN A TRADE UNION DEMAND RECONITION?
Ivan Israelstam is the Chief Executive Officer
of Labour Law Management Consulting.
He is a leading practitioner in labour law
and pragmatic labour relations. He holds an
honours degree from The University of the
Witwatersrand and IPM diplomas in Personnel
Management and Training. He has acted as a
part-time commissioner with the CCMA and the
chairperson of the Labour Affairs Committee
of SACCI. Ivan is the Vice Chair of the Labour
Market Committee of the SA Board for People
Practices. He is a regular labour law columnist
for several prominent publications, as well as
being the author of "Walking the New Labour
Law Tightrope", "Labour Law for Managers
Practical Handbook", and "The Gold Future
or the Cold Future." Ivan frequently speaks on
labour issues on television and radio, as well as
at conferences and seminars.
A trade union will gain recognition at your workplace if it can prove
to you or the CCMA that it has sufficient representation amongst
your employees. Upon providing evidence that a union has
adequate representation, it is entitled to the following rights
within an organisation:
> Access to the workplace by a union official to meet with its
members and conduct elections;
> Deduction and pay-over of union subscriptions;
> Election of trade union representatives, better known as
> Leave for trade union activities; and
> Disclosure of information.
Where union representation is low, the union might only win the right
to access the workplace, deduction of union subscriptions and leave
for union activities. The idea behind this concept appears to be to
allow a union that does not have a majority, but might have significant
representation, to get a foothold into the workplace to increase its
The law gives the CCMA arbitrator some broad guidelines for
deciding whether to award organisational rights to Trade Unions. But
these guidelines are so broad that they can become unhelpful. Such
law requires that:
1 A union must be registered with the Department of Employment
and Labour to qualify for evaluation regarding sufficient
representation in an organisation.
2 Arbitrators who are attempting to establish whether a
union qualifies as sufficiently representative must, in
terms of the Labour Relations Act (LRA), consider:
> The need to avoid excessive numbers of trade unions in
> The need to minimise the financial and administrative burden on
> 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.
When a union approaches an employer for organisational rights, the
parties must meet to attempt to conclude a collective agreement. The
union must refer the dispute to the CCMA to attempt conciliation if such
a meeting fails to result in an agreement. In the first instance, the CCMA
will endeavour to resolve any issues between the employer and union
in order to reach an agreement relating to granting organisational rights.
If the conciliator succeeds in resolving the issue, that brings the dispute
to an end.
If conciliation fails to resolve the dispute, the matter becomes
complicated. Under the LRA, two sections, falling into two different
chapters, outline opposite choices for resolving such a dispute.
1 Firstly, section 21(7) allows either party to refer the matter to the
CCMA for arbitration where the commissioner is required, for
example, to apply the guidelines listed above for determining
2 Secondly, instead of referring the matter to arbitration, the union is
entitled to strike after following the prescribed procedures.
Therefore, employers must assess at the outset whether the trade union
concerned is sufficiently representative. If the answer is ‘yes’, there is
no point in refusing recognition, but negotiating a balanced recognition
agreement becomes paramount. On the other hand, if recognition is not
warranted, the employer must know that it is safe to reject it.
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www.labourlawadvice.co.za and click on the Labour Law Debate menu item or email him