Acquiring Organisational Rights

Organisational rights are trade union rights such as access to the employer’s premises, time off for trade union activities, the disclosure of information and the right to appoint trade union representatives or shop stewards. A trade union can obtain these rights in a limited number of ways.

Firstly, the union can obtain organisational rights by concluding a recognition agreement with the employer. In this case, the employer and the union are free to agree to organisational rights as they please — they can even agree to organisational rights not provided for in the Labour Relations Act (for instance, the employer and the union can agree, in the recognition agreement, that the union will be entitled to use office space, that it will have a telephone line or fax facilities). This is a non-statutory method of acquiring organisational rights and gives the employer and the union the greatest flexibility in structuring their relationship.

But not every employer is prepared to enter into a recognition agreement with a trade union that comes knocking at the door — even if it is a majority trade union. The Labour Relations Act therefore provides for two statutory methods of acquiring organisational rights.

Section 19 of the Labour Relations Act provides that a registered trade union that is party to a bargaining council automatically obtains certain organisational rights — the right of access to the employer’s premises and the right to have trade union dues or subscriptions deducted from employees’ remuneration. The union obtains these two important organisational rights in respect of all workplaces within the registered scope of the council — in other words, the union can exercise these rights regardless of the extent to which it is representative in any given workplace.

The third way in which a trade union can acquire organisational rights is by using the section 21 procedure. This process entails the union approaching the employer with a request for organisational rights, and, if the employer refuses, approaching the CCMA for conciliation followed by arbitration (note that a bargaining council will not have jurisdiction in disputes of this nature). In using this procedure, the question of the union’s representivity arises: some of the statutory organisational rights pertain to majority trade unions, while others (such as the right of access to the employer’s premises) can be obtained by unions that are “sufficiently” representative.

The recent CCMA award of CAMMBAWU obo members / Goldings Orthopaedic Centre (2005) 14 CCMA 4.7.2 focused on the issue of whether the union represented the majority of employees for the purposes of organisational rights and whether all the various operations of the employer counted as a single workplace or whether these constituted different workplaces.

But in this case the matter foundered on jurisdictional grounds: the CCMA commissioner considered the relevant decisions of the Labour Appeal Court and the Labour Court which held that the CCMA would have jurisdiction only if all the requirements of section 21(1) – 21(5) have been complied with. The factual issues before the CCMA commissioner boiled down to the gritty question of whether all the documents (required by section 21 ) had been exchanged — such as a copy of the union’s constitution. Another question was whether the union had complied with section 21(2): did it specify the workplace in respect of which the rights were to be exercised and the rights themselves? On this point the commissioner found that the union had failed to indicate the workplace in respect of which they sought to exercise the rights, the rights themselves and how these rights were to be exercised. Nor could the union prove, the commissioner concluded, that it represented the majority of employees in the workplace.

The moral of this case (and the decisions it relies on) is simple: if a trade union seeks to acquire organisational rights by using the section 21 procedure, it must make sure that it has done every single little thing required by section 21 — a failure to do so may result in the CCMA not having jurisdiction.