Employer consistency and organisational rights

Organisational rights in context

For smaller, less powerful trade unions, organisational rights represent an important method of building up a power-base amongst the employer’s employees. By gaining access to the employer’s premises, arranging for trade union subscriptions or dues to be deducted from employees’ remuneration or having trade union representatives or shop stewards recognised by the employer, the union can increase its membership till it is in a position to bargain, on an equal footing, with the employer.
In terms of the Labour Relations Act 66 of 1995 (the LRA), unions may acquire organisational rights in a number of ways: by concluding a collective agreement (often, but not always, a recognition agreement) with the employer, or by virtue of the union’s being a party to a bargaining or statutory council. But in order to conclude a collective agreement or be admitted to a bargaining council, a union requires a certain strength in numbers. What happens if it does not have the numbers?
In this case, a trade union may seek to obtain organisational rights by means of the procedures set out in the LRA — section 21 of the LRA provides that the union must notify and meet with the employer with a demand in respect of the organisational rights it wishes to exercise. The employer and union must then seek to reach an agreement, and, if this fails, the issue may be referred to the CCMA (and only to the CCMA) for the purposes of conciliation and arbitration.
For the purposes of this arbitration, one of the core issues, almost invariably, is whether or not the applicant union is sufficiently representative for the purposes of exercising organisational rights. The LRA distinguishes between organisational rights for majority trade unions, and organisational rights for unions that are ‘sufficiently representative’. Very often, the question is whether or not a minority union’s representivity is sufficient.
Consistency
If an employer has granted (or continues to grant) organisational rights to a minority trade union that represents only 6% of the employees in the workplace, however, it appears that the employer cannot argue that another minority union must represent at least 20-25% of the employees in the workplace. CCMA commissions appear to take a negative view of these inconsistent arguments.
In Organisation of Labour Affairs (OLA) v Old Mutual Life Assurance Co (SA) (2003) 12 CCMA 4.7.3 the applicant trade union had requested rights of access to the employees and the right to have trade union dues deducted by the employer and paid directly to the union (stop-order facilities). In terms of the LRA, unions that are ‘sufficiently representative’ could obtain these rights. But the union’s level of representivity lay at a mere 2%. For the CCMA commissioner, however, this was not the end of the story:
‘The practice in the past has clearly been to recognise unions with membership of similar numbers to that now held by the applicant. In the absence of a policy or any response from the company as to what membership is required the union refers to the company’s public statement and concludes that this is the guideline. In my opinion it would be unreasonable for the company to leave the union in a vacuum, merely ignoring the numbers issue and responding that membership is not sufficient without ever indicating what it considers to be sufficient. In these circumstances the union is quite entitled to look at current practice as a guide line.
The company argues that the current numbers have a history which justifies their inconsistent treatment of the applicant. Firstly SATAWU [another union active in the company] used to have a lot more members. This is not accepted as a reason to differentiate, the current membership irrespective of history seems to be the criteria. Secondly BIFAWU [a third active union] has been put on terms. This may be relevant if they are denied facilities given their very low membership. Thirdly, SACCAWU is a business partner. This raises serious issues of Business Ethics and Corporate Governance which are outside the terms of this arbitration. Suffice to say for the purposes of gaining recognition I totally reject this as a facilitating factor.’
For the CCMA commissioner, consistency of treatment of unions was a decisive factor in considering the fairness:
‘The Labour Relations Act is a statute designed to promote fairness in the workplace. A cornerstone of fairness is consistent treatment. I find that the company has granted facilities to unions with fewer members indicating their understanding of sufficient representation. In doing so they are bound to grant this union facilities as stipulated in sections 12 and 13 of the Labour Relations Act.’
In Group 4 Falck (Pty) Ltd v DUSWO (2003) 12 CCMA 4.7.1 the union’s membership had been dramatically reduced as a result of the employer’s restructuring, and the employer notified the union that it intended with withdraw the organisational rights the union had informally enjoyed as the union was no longer sufficiently representative. It was clear, said the CCMA commissioner, that the union was not a majority union, and that it was therefore not entitled to majority union rights (recognition of shop stewards or disclosure of information). But this left the issue of rights such as deductions and access to the employees.
Again, it was relevant what the employer’s approach had been in respect of another minority trade union:
‘Insofar as the section 12 and 13 rights are concerned, it seems that the employer has contradicted itself as to what constitutes sufficient representivity. On the one hand, it says that it would regard 20-25% as sufficiently representative. However, the employer is prepared to grant these rights to SATAWU [the other union], which currently enjoys 6,1% representivity or 114 members. One might argue that the employer regards this as sufficient, after the amalgamation. The employer has however indicated that it has not applied for withdrawal of these rights from SATAWU because of its national representivity and its presence at central bargaining levels. Insofar as central bargaining is concerned, DUSWO does not enjoy any such rights, nor does it enjoy recognition or any other bargaining rights, so this argument is not relevant. Insofar as SATAWU’s national representivity is concerned, the employer has stated that it regards the Western Cape as the workplace for the purpose of determining levels of representivity. SATAWU’s national high representivity therefore does not place it in a more favourable position than any other union in the Western Cape. It would therefore appear that the employer has by its own argument set the threshold of representivity at 6,1% or 114 members.’
In terms of the commissioner’s award, the applicant union was given four months to increase its membership to the level of 114 members or 6.1%.
Moving the goal-posts
From a legal point of view, this resembles estoppel: the employer is estopped from relying on a higher level of representivity if it has already granted or maintains organisational rights with other unions at a much lower level of representivity. The argument is a compelling one: that the employer must treat minority unions in a consistent and fair manner — on the face of it, it would be unfair for the employer to peg representivity for one union at 6% and then demand, from a different union, that it represent at least 20% of the employees before it may exercise organisational rights. This would, in the normal case, constitute an unfair moving of the goal-posts. Exceptions to this rule are hard to think of: an employer would have to present very compelling reasons indeed if in its approach it distinguishes between one minority union and another in this way.