When a trade union approaches an employer with the news that its employees have joined the union, one can understand that some employers might experience a sense of betrayal. But is it as bad as it seems?
The right of workers to form and join trade unions is a fundamental constitutional right that has its roots in our Constitution. The Labour Relations Act deals with the level of union membership in the workplace (referred to as “representivity”) that is needed by unions to acquire organisational rights. It also specifies what rights a union and its members may exercise in the workplace and determines how a union should go about acquiring those rights. Certain rights can be acquired when a union is “sufficiently representative” (which is not defined in the Act) and other rights can only be acquired once the union “representative of the majority” of employees in the workplace.
So how do employers typically respond when they are first approached? Besides the feeling of being betrayed, there is also the dreaded prospect of the union gaining access to confidential information and interfering in the manner the business is run. Small employers tend to feel more offended and respond more vehemently than large employers, largely due to their closer relationship with employees. The employer’s reaction is often one of threatening to withdraw the favours and benefits afforded to employees in the past. While such a reaction might be understandable, it is based on a misunderstanding of the situation.
The first organisational rights mentioned in the Act, relate to access: According to the Act any office-bearer or official of a representative union may enter the employer's premises in order to recruit members, communicate with members and to otherwise serve members' interests. This might appear to a be a frightening prospect to the uninitiated employer. A closer look reveals that these rights are not unqualified rights. They are subject to any conditions as to time and place that are reasonable and necessary to safeguard life or property or to prevent the undue disruption of work. The right to hold meetings with employees, is subject to such meetings being held outside the working hours of employees.
A trade union cannot simply walk into the premises at any time and insist on exercising its rights. The Act requires it to notify the employer in writing that it wants to exercise certain organisational rights. The written notice must be accompanied by a certified copy of the union's certificate of registration and must also specify how it wishes to exercise those rights. Other than the right to access, there are also the right to deduction of subscriptions from employees’ wages, leave for trade union activities, election of shop stewards and disclosure of information. The employer and the union have to meet within 30 days in an endeavour to conclude a collective agreement as to the manner in which the union will exercise the organisational rights it is entitled to.
Employers tend to overlook the fact that they have an opportunity to negotiate a recognition agreement with the union on terms that are not merely one-sided in favour of the union and its members. Employers can negotiate on the manner in which organisational rights are exercised. If the parties fail to conclude a collective agreement, the matter may be referred to the CCMA to facilitate an agreement.
One cannot deny that employers and trade unions have conflicting interests and this will remain inherent in their relationship. However, besides the checks and balances afforded by the Labour Relations Act to ensure orderly collective bargaining, there are certain benefits for employers in having relationship with a representative trade union. Properly considered recognition and other procedural agreements with trade unions can lay the basis for order and predictability that might not otherwise have existed. For example, the parties would agree on a particular time of the year when there will be negotiations on wages and other conditions of employment, so that these issues do not give rise to disputes and industrial action at inappropriate times; the union also serves as a channel for grievances to be aired in an orderly way; the parties can agree on a dispute resolution processes that particular to their circumstances. In a well functioning relationship between an employer and a union, the union can even play a constructive role in assisting the employer to manage work performance and misconduct in the workplace. However, a constructive relationship between the union and a company is more dependent on the attitude and approach of management than on the content of a collective agreement.
The proposed amendments to the Labour Relations Act seek to increase the ability of trade unions to acquire organisational rights. In essence unions will need lower thresholds of representivity to acquire certain rights, affording minority unions entry to the workplace. It is likely that the amendments will lead to more union activity in the workplace than has been the case so far. While employers may consider this to be bad news, they might as well make the most of the possible advantages mentioned above.
Jan Truter of www.labourwise.co.za
www.labourwise.co.za is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via the website or email@example.com.