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

shop stewards;

> 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

representation.

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 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.

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

sufficient representation.

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.

To access our online labour law debate, LABOUR LAW ON TRIAL, please go to

www.labourlawadvice.co.za and click on the Labour Law Debate menu item or email him

directly ivan@labourlawadvice.co.za