When do trade unions get rights in terms of the Labour Relations Act (LRA)? The first set of rights is granted when a trade union reaches a sufficient representation level within a workplace.

What does ‘sufficient representation’ within a workplace mean?

The LRA does not define the term ‘sufficiently representative’. However, many Commissioners of the Commission for Conciliation, Mediation and Arbitration (CCMA) have ruled – in the past – that if approximately 30% of employees at a workplace belong to a specific trade union, that union is said to be ‘sufficiently represented’ in that workplace.

When a trade union is ‘sufficiently represented’ in your workplace, they gain a number of rights, including:

• The right to access your employees to, for example, communicate with their members among your employees and to recruit new members, and

• The right to impose stop orders on their salaries for union subscription fees.

However, in the case below it was decided that 15% is not be enough for sufficient representation.

Case law dealing with sufficient representation

In Municipal and Allied Trade Union of South Africa (MATUSA) v Crouse N.O and Another (C 261/15) [2015] ZALCCT 56; [2015] 11 BLLR 1172 (LC); (2015) 36 ILJ 3122 (LC) (C344/2016) delivered 31 January 2017, the Commissioner held that as a union, MATUSA, had a 15% membership among workers of the municipality, it should be granted organisational rights there. This is even though its national membership did not meet the threshold set by the Bargaining Council’s Collective Agreement for Rights under the following sections of the LRA:

• 12 (stop orders),
• 13 (access), and
• 15 (time off for union officials).

The Labour Court (LC) held that the relevant sections mentioned above require Commissioners to take into account a number of other factors when considering applications for organisational rights. The Commissioner’s failure to consider those factors amounted to a reviewable irregularity.
The CCMA Award was set aside and sent back to the CCMA to be heard by another Commissioner. The factors include the principle of non-proliferation of unions at the workplace.
This case indicates that 15% of the workplace (that is the total workplace including managers) is not enough to get these rights.

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