Top 5 trade union organisational rights in the workplace

Many employers are unaware that trade unions may acquire certain organisational rights within the workplace if they meet the required level of representation. These rights are regulated by the Labour Relations Act 66 of 1995 (LRA) and allow trade unions to perform specific functions in representing their members. It is therefore important for employers to understand the scope of these rights, when they may arise and what obligations they may place on the employer.

The key organisational rights that trade unions may seek to exercise in the workplace include:

1. Trade union access to workplace

Any official or office bearer of the trade union is allowed to enter the employer’s premises in order to recruit new members, serve their members’ interests and hold meetings, or to conduct any ballot in terms of their constitution. It is important to note that trade unions are limited to meeting with their members outside normal working hours unless agreed otherwise. Employers should take care to conclude a collective agreement with the relevant trade union to give timeous notice of their intention to exercise this right i.e. 48 hours’ notice before conducting a ballot.

2. Deduction of trade union subscriptions or levies

This right confers that employers deduct the trade union’s levies from their members and pay the monies to the trade union. This right is subject to the employee’s authorisation which may be revoked by giving the necessary notice. When remitting the monies to the trade union, the employer must give such trade union:

• A list of the names of every member from whose wages the employer has made the deductions that are included in the remittance;
• Details of the amounts deducted and remitted and the period to which the deductions relate; and
• A copy of every notice of revocation, if applicable.

3. Trade union representatives

A registered trade union, or two or more unions acting jointly, that represent the majority of employees in the workplace, are entitled to elect a trade union representative (shop steward) by its members.  The representative will be responsible for representing employees in disciplinary and grievance proceedings, as well as monitoring the employer regarding compliance with labour law and any collective agreement. The representative can also take time off to fulfil his duties and to be trained in his functions.

4. Leave for trade union activities

Any employee who is an office-bearer of a representative trade union may take reasonable leave to complete or fulfil the obligations of his or her office. The employer and trade union may agree to the number of leave days, how many leave days will be paid, and any conditions attached thereto.  Employers should note that leave for trade union activities is additional to the employee’s annual paid leave.

5. Disclosure of information

By acquiring this right, the trade union may require the employer to disclose relevant workplace information to the trade union in order to allow the trade union to effectively perform its functions or engage in collective bargaining. It is important to note that there are restrictions on the information which may be disclosed (i.e. information which is legally privileged or information that would amount to the contravention of any law or court order if disclosed). Employers should consult their legal advisors to make sure that they do not disclose information that they are not allowed to disclose.

Recognition of trade union organisational rights

It is important to note that these organisational rights are not automatically granted to trade unions. A trade union must follow a process to first seek recognition of the relevant rights from the employer. Where the parties are unable to reach agreement, the matter may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. If conciliation is unsuccessful, the dispute may proceed to arbitration, where a commissioner will issue a binding ruling. Alternatively, the trade union may elect to pursue protected strike action in respect of organisational rights.

The extent of the rights that a trade union may acquire largely depends on its level of representation in the workplace. Trade unions with sufficient representation (dependant on the workplace, but generally around 25% of the employees in the workplace) may obtain limited organisational rights, such as access to the workplace and the deduction of union subscriptions. Whereas trade unions that represent a majority of employees in the workplace (50% + 1) may, qualify for the full range of organisational rights discussed above.

Employers are lastly encouraged to seek further legal advice if approached by a trade union aiming to exercise these rights. This is essential to ensure adherence to statutory procedures and to mitigate any potential disruptions or risks in the workplace.

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