Minority Unions and Organisational Rights

Dear NEASA Employer

There have been a number of developments surrounding the issue as to whether a minority union in a workplace is entitled to organisational rights and more importantly how such a union can acquire rights.

It is trite law that a minority union, which is unable to gain statutory organisational rights in terms of section 21 of the Labour Relations Act (LRA), due to the union not reaching the required representativity, may bargain and engage in industrial action in order to force the employer to grant these rights on a contractual basis.

The recent question before the Constitutional Court was whether a minority union was barred from entering into a collective agreement with the employer, in order to acquire organisational rights, where a threshold agreement was already concluded between the employer and the majority union, and the minority union did not meet the threshold in terms of that agreement in order to acquire the rights.

In a majority judgement the Constitutional Court found that the rights to bargain collectively and to freedom of association can only be limited by laws of general application and not by collective agreements between an employer and a majority union. This would mean that minority unions have a number of alternatives available by which they can acquire organisational rights.

According to the latest Constitutional Court judgement, the right of access to the workplace (Sec 12), to debit order facilities (Sec 13) and leave for trade union office bearers for trade union activities (Sec 15), may be acquired by:

• meeting the threshold as set in the threshold agreement; or
• bargaining with the employer and concluding a collective agreement (which may include industrial action); or
• referring the issue to arbitration in terms of the amended section 21 of the LRA. This option allows the commissioner a discretion to grant the rights or not.

Also, according to the latest judgement, the right to appointment and leave for shop stewards (Sec 14) and the right of access to information (Sec 16) which are, by virtue of the LRA, reserved for majority unions, may also be bargained for by minority unions.

The practical effect of this Constitutional Court judgement is that employers will probably be faced with a lot more demands from minority unions to be granted organisational rights, which may lead to industrial action, and that threshold agreements as contemplated in section 18 of the LRA, can no longer be used as a defence against these demands.

All of this may naturally lead to a proliferation of unions in a single workplace which will cause industrial relations to be somewhat more challenging.

Should members have any queries in this regard please contact our Hotline on 086 016 3272.

Kind Regards,
Jaco Swart
National Collective Bargaining Coordinator