Diplomatic ways to down tools

Ac­cord needed be­tween em­ployer, union

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - VERUSHKA REDDY

THE right to strike is en­trenched in the con­sti­tu­tion, but the re­cent strikes in the plat­inum in­dus­try raise the ques­tion of how an em­ployer en­gages with a new trade union.

The Labour Re­la­tions Act spells out a trade union’s rights to or­gan­ise, and the process to be fol­lowed to ex­er­cise those rights. Or­gan­i­sa­tional rights may only be en­joyed by reg­is­tered trade unions which are rep­re­sen­ta­tive of the work­force. “Rep­re­sen­ta­tive”, in re­spect of some rights, has been in­ter­preted to mean an av­er­age of 30% of em­ploy­ees at a work­place (mi­nor­ity rights). On the other hand the act stip­u­lates other rights may only be ex­er­cised by a ma­jor­ity trade union, or two or more reg­is­tered trade unions who, act­ing to­gether, rep­re­sent the ma­jor­ity of em­ploy­ees in a work­place, that is 50% plus one (ma­jor­ity rights).

A reg­is­tered trade union should rep­re­sent about 30% of an em­ployer’s work­force at a work­place to ex­er­cise the fol­low­ing right. It must be borne in mind, how­ever, that 30% is not a per­cent­age cast in stone. Ac­cess to the work­place. A union of­fi­cial may en­ter an em­ployer’s premises to re­cruit and to com­mu­ni­cate with mem­bers or oth­er­wise serve mem­bers’ in­ter­ests. The em­ployer may set rea­son­able con­di­tions for ac­cess to safe­guard life or prop­erty and to pre­vent un­due dis­rup­tion to its op­er­a­tions. De­duc­tion of trade union sub­scrip­tions. This re­quires an em­ployer to deduct the union mem­ber­ship fee di­rectly from an em­ployee’s re­mu­ner­a­tion and pay it over to the union. The mem­bers must pro­vide writ­ten au­tho­ri­sa­tion to the em­ployer. Leave for trade union ac­tiv­i­ties. An of­fice bearer of a trade union or a fed­er­a­tion of trade unions is en­ti­tled to time off work to at­tend to trade union ac­tiv­i­ties. The num­ber of days off and how many of those will be paid days off are sub­ject to agree­ment be­tween the em­ployer and the trade union.

The fol­low­ing rights are re­served for unions rep­re­sent­ing the ma­jor­ity: Trade union rep­re­sen­ta­tives. More

It is vi­tal for an em­ployer to es­tab­lish whether the trade union has sig­nif­i­cant sup­port

com­monly re­ferred to as shop stew­ards, the act pre­scribes the min­i­mum num­ber of trade union rep­re­sen­ta­tives who may be elected per num­ber of em­ploy­ees at the work­place. Shop stew­ards en­joy a num­ber of rights, in­clud­ing the right:

To rep­re­sent em­ploy­ees in dis­ci­plinary and griev­ance hear­ings;

To mon­i­tor com­pli­ance with the act; and

To re­port breaches of the act or the terms of a col­lec­tive agree­ment. Dis­clo­sure of in­for­ma­tion. This en­ti­tles a trade union to rel­e­vant in­for­ma­tion re­quired to ex­er­cise cer­tain rights, such as the right to rep­re­sent em­ploy­ees in dis­ci­plinary hear­ings and col- lec­tive bar­gain­ing, and to mon­i­tor com­pli­ance with the act. The right to es­tab­lish thresh­olds of rep­re­sen­ta­tive­ness. An em­ployer and a ma­jor­ity trade union may agree on thresh­olds of rep­re­sen­ta­tive­ness to al­low other unions to ex­er­cise the rights of ac­cess, trade union sub­scrip­tions and dis­clo­sure of in­for­ma­tion. The agree­ment will not be bind­ing un­less the thresh­olds are ap­plied equally to ev­ery trade union seek­ing to ex­er­cise those rights.

The steps are rel­a­tively sim­ple. In terms of sec­tion 21 of the act a trade union seek­ing to ex­er­cise or­gan­i­sa­tional rights must write a let­ter to the com­pany stat­ing the fol­low­ing:

The work­place at which it in­tends to ex­er­cise the or­gan­i­sa­tional rights;

Its rep­re­sen­ta­tive­ness at the work­place and the facts re­lied on to demon­strate that it is rep­re­sen­ta­tive; and

The or­gan­i­sa­tional rights that it wishes to ex­er­cise, as well as the man­ner in which it in­tends to do so.

The writ­ten no­tice must be ac­com­pa­nied by a cer­ti­fied copy of the union’s cer­tifi­cate of regis­tra­tion.

Within 30 days of re­ceiv­ing a sec­tion 21 no­tice the em­ployer and trade union must meet. The pur­pose of the meet­ing is to agree on how the or­gan­i­sa­tional rights will be ex­er­cised. If the par­ties do not meet or can­not agree, ei­ther party may re­fer a dis­pute to the Com­mis­sion for Con­cil­i­a­tion, Me­di­a­tion and Ar­bi­tra­tion.

There are var­i­ous rea­sons why an em­ployer may choose not to en­gage with a trade union when it re­ceives a sec­tion 21 no­tice. The most com­mon rea­son is the em­ployer dis­putes that the trade union is rep­re­sen­ta­tive. It is vi­tal for an em­ployer to es­tab­lish whether the trade union has sig­nif­i­cant sup­port be­cause its em­ploy­ees may go out on strike in sup­port of a de­mand that the trade union be al­lowed to ex­er­cise or­gan­i­sa­tional rights.

Thus, it is crit­i­cal not to refuse a meet­ing with the union out of hand. The em­ployer must also be alive to the mood on its shop floor. If em­ploy­ees are dis­grun­tled over one or other is­sue, this may in­crease the risk of a strike. While the mat­ter may also be re­ferred to ar­bi­tra­tion, em­ploy­ees who are ag­grieved may see a strike as a more ex­pe­di­ent way to ex­er­cise their mus­cle.

If the re­quire­ments for a pro­tected strike are met, an em­ployer may not pre­vent a strike in sup­port of or­gan­i­sa­tional rights.

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