Determining what a workplace is – in terms of determining organisational rights – must be first answered by the employer. Once that is answered the issue of the bargaining unit needs to be determined. The case of Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union/ Grafton Everest – (2019) 28 CCMA 4.7.5 illustrates this point.
The employee’s union (CEPPWAWU) sought organisational rights in the employer’s workplace and referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) where they were refused. A Commissioner ruled that he lacked jurisdiction to arbitrate the matter because the union had failed to comply with the provisions of section 21(2) of the Labour Relations Act (LRA).
A new Commissioner, for a new referral, noted that CEPPWAWU had complied with the requirements of section 21(2) in that it had listed the rights it wished to exercise and had supplied the employer with its certificate of registration. The remaining requirement was that the number of its members employed in the workplace had to be verified.
A verification exercise had been attempted but could not be completed. However, the employer accepted that about 270 membership forms had been submitted but had disputed these proved that the employees were union members.
The Commissioner concluded that even if the dispute forms were, the union had a membership in the workplace of 25% of the total workforce. The Commissioner concluded that the mere fact that there was another majority union did not preclude CEPPWAWU from acquiring some organisational rights. The union was, accordingly, entitled to rights under sections 12 and 13, but not under section 15.
The Commissioner ordered accordingly.