I have been approached by a trade union to enter into a Recognition Agreement with them. The trade union is of the opinion that it is entitled to be recognised at my business given that they represent a certain number of employees. Do I have to enter into discussions with the trade union?
A trade union will be successful in gaining recognition at a workplace if it can prove to the employer or to the CCMA that it has sufficient representation amongst the employees. The question is, what constitutes sufficient representation?
The Labour Relations Act (“LRA”) splits “trade union representivity” into two categories:
1. Full representivity based on a simple majority of members employed at a workplace (50% + 1); and
2. Partial representivity based on the concept of “sufficient” representation (20% - 50%).
If a trade union can prove that its members at the workplace represent a majority of all the employees employed at the workplace, the union will be legally entitled to recognition. That is, it will be entitled to organisational rights provided for by the LRA.
These rights are:
• Access to the workplace by a union official to meet with its members and to conduct elections.
• Deduction and pay over of union subscriptions.
• Election of trade union representatives (i.e. shop stewards).
• Leave for trade union activities.
• Disclosure of information.
If a union does not have a majority but does become merely “sufficiently” representative it only has the right to access to the workplace, deduction of union subscriptions and leave for union activities. The concept of a “sufficiently representative trade union” is not defined by the LRA, which leaves it to the arbitrators at the CCMA to decide whether the union is sufficiently representative or not.
The LRA requires that:
1. ln order to qualify for sufficient representation, the union must be registered with the Department of Labour.
2. Arbitrators who are attempting to establish whether a union qualifies as sufficiently representative must, in terms of the LRA, consider:
a. The need to avoid excessive numbers of trade unions in a workplace.
b. The need to minimise the financial and administrative burden on the employer.
c. The nature of the workplace.
d. The nature of the rights sought.
e. The nature of the sector (industry) into which the workplace falls.
f. The organisational history of the workplace or any other workplace of the employer.
If a union approaches an employer for organisational rights, the parties are required to meet to try to conclude a collective agreement. Where such meeting(s) fails to result in an agreement, the union is required to refer the dispute to the CCMA for purposes of conciliation.
It is therefore crucial for employers to be able to assess at the outset whether the trade union concerned is sufficiently representative or not. This is because, if the answer is “yes”, there is no point in refusing recognition.
Why would an employer sign a Recognition Agreement?
The purpose of a Recognition Agreement is to enable the employer to keep a tight control over the activities of the union and of the shop stewards. Without such an agreement the shop stewards can run riot. That is, they can stir up trouble and squander valuable production time dealing with union issues instead of earning the money they are paid.
Shop stewards have several trade union duties that can take them away from their normal production work. These shop steward duties include:
• Wage negotiations. This may involve the shop steward in leading or assisting with the negotiations and in numerous preparatory and feedback meetings.
• Hearing employees’ grievances and negotiating in this regard with the employer.
• Representing employees at disciplinary hearings. This does not only use up time at the hearing itself. It can necessitate the shop steward spending protracted periods of time preparing for the hearing and dealing with appeals.
• Attending training courses and conferences arranged by the trade union for purposes of developing the shop stewards’ knowledge and skills.
• Holding meetings with members regarding union issues.
• Representing members at the CCMA or bargaining council.
The Recognition Agreement must only contain the aforementioned organisational rights and nothing more. Anything else which the union might suggest is subject to negotiation and the employer is not obliged to accept it.
The employer should never include anything that is a management prerogative. The employer should not hand over management to the union.