Trade union organisational

rights
 JML313

POSITION BEFORE THE AMENDMENTS

MAJORITY UNION
Can exercise the following rights:
Right of access - s 12
Stop order facilities- s13
Leave for union activities- s 15
Disclosure of information- s16
Setting thresholds- s-18
 JML 313

SUFFICIENTLY REPRESENTATIVE UNIONS

Right of access- s12

Stop order facilities- s13
Leave for trade union activities- s 15
 JML313

PROCESS OF ACQUIRING ORGANISATIONAL RIGHTS

- Through an agreement (section 20)
- Member of a bargaining council (the union automatically
get section 12 & 13 rights)
By following Section 21of the LRA
- the union notifies the employer in writing that it seeks to
exercise organisational rights
- A copy of the registration certificate must be attached
- The union must also indicate how it is going to exercise
those rights
- Within 30 days the union and the employer must meet and
try to conclude a collective agreement
- If there is no agreement reached then the union may refer
an organisational rights dispute at the CCMA
 JML313

PROCESS OF ACQUIRING ORGANISATIONAL RIGHTS

(continued)
If conciliation fails, then the union can refer the dispute for
arbitration or embark on strike action

Question- Can a minority trade union strike in pursuit of the

right to elect shopstewards (a right that is normally reserved
for a majority trade union)

In Numsa v Bader Bop the Constitutional Court held that

there was nothing precluding a minority trade union from
embarking on strike
 JML313

PURPOSE OF THE AMENDMENTS

Adopting a holistic approach that gives effect to the principles

of freedom of association

To broaden the discretion of commissioners in relation to the

process of granting organisational rights

To reduce potential strike action relating to organisational

rights disputes
 JML 313

AMENDMENTS

Most representative trade union

- Trade union representatives
- Disclosure of information

N.B. Before the amendments these are rights were

exclusively reserved for majority trade unions.

Now, as long as the union is sufficiently representative and

also the most representative it can approach the CCMA in
order to obtain the 2 additional rights
 JML 313

POINTS TO CONSIDER

- Does this indicate a shift from majoritarianism

- S 21 (8A)- section 14 and 16 may be awarded to a most
representative trade union if that union is already entitled to
s 12, 13 and 15 rights and no other trade union has been
granted the rights referred to in s14 and 16 in that
workplace
 JML 313

A right granted in terms of section 21(8A) lapses if the trade

union concerned loses its most representative trade union
status in the workplace

Thresholds- an arbitrator may grant the s 12, 13 and 15 rights

to a trade union that does not meet the threshold of
representativeness established by a collective agreement if it
represents a significant interest, or a substantial number
of employees in the workplace
 JML 313

Significant interest

A group of employees with a significant interest would refer to

employees who perform work that is central to the operations
of the employer (e.g rockdrillers in a mine, doctors in a
hospital etc)
The key issue is that ‘significance’ is determined with
reference to the operations of an employer and not to
whether a person feels that his job is significant to
himself/herself
 JML 313

In an arbitration where an applicant union does not meet the

threshold in the collective agreement but still seeks to
exercise the s 12, 13 and 15 rights, all parties to the collective
agreement establishing the threshold should be given an
opportunity to participate in the arbitration proceedings

This provision applies to any collective agreement concluded

before the amendments provided the dispute is referred after
the amendments
 JML 313

Points to consider

- Will the amendments lead to a decline in industrial action

relating to organisational rights

- Will they broaden access to s 14 and 16 rights which are

crucial to collective bargaining

- Will this not water down the principle of minimizing the

proliferation of trade unions