Section 14 of the LRA describes a representative trade union, as a trade union or two or more trade unions acting jointly, that have members as majority of the employees employed by an employer in a workplace (also defined in the LRA). These representative trade unions are provided with more organizational rights than those provided to other trade unions not representing the majority of employees. The rights provided to all trade unions are namely:

• the right of access to the workplace;
• the right to deduction of trade subscriptions;
• the right to leave for trade union activities;
• with representative trade unions having in addition:
• the right to trade union representatives in the workplace; and
• the right to disclosure of information.

When a trade union wishes to exercise their organisational rights, the registered trade union must notify the employer in writing that, inter alia, it seeks to exercise one or more of the rights conferred in the LRA. After receiving the notice, the employer must, within 30 (thirty) days, endeavor to meet with the registered trade union in order to conclude a collective agreement as to the manner in which the trade union will be exercising its rights in respect of that workplace.

In the event that there is a dispute about whether the trade union is in fact a representative trade union and such dispute remains unresolved, the Commissioner (of the CCMA) is required to consider certain factors in making a decision to (i) minimize the proliferation of trade union representations; and (ii) minimize the financial and administrative burden of requiring an employer to grant organisational rights to one or more registered trade unions. In this regard the proposed LRA Amendments provide an additional factor for the commissioner to consider in that he must take into account the composition in the workplace including temporary employment services, fixed term contract employees as well as part time employees. To this end, the commissioner may then make an order granting a trade union that represents most of the employees (and not necessarily the majority), those organisational rights that would have ordinarily been granted to representative trade unions. However, this is on the proviso that no other trade union holds those rights already. These abovementioned rights conferred on the trade union lapses once the trade union no longer represents the most employees. There are various other rights now given to trade unions representing the most employees in sections 8A, B, C and D of the proposed amendments to the LRA.

One of the most important rights provided to employees is the right to strike. Of significance in this regard is the proposed amendment that trade unions will be required to conduct a ballot of its members in good standing and to show that the majority of its members who voted in the election have voted in favour of the strike. Thereafter, the Commission will issue a certificate. Although a secret ballot is no longer a requirement of strike action, as was the case in the 1956 LRA, it appears as though the practices of trade unions have pushed this to once again be a requirement in our labour legislation. To this end, there has been the utmost resistance to the ballot requirement by trade unions and constant reference that this requirement was under the previous regime and should not be in our labour legislation as it is restrictive. Time will tell whether this proposed amendment will stand.

We hope the above is of interest to you.

Written and prepared by
Lauren Hastie
Lauren@bkm.co.za
BOUWER KOBELI MORABE

Please do not hesitate to contact us on +27 11 788-0083 should you have any further enquiries or email enquiries@bkm.co.za.