By Melissa Strydom LLB
The Labour Relations Act (LRA) outlines what is required of Unions when they are trying to acquire organisational rights. Any registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by the LRA in a workplace.
According to Section 21(2) of the LRA:
(2) The notice referred to above must be accompanied by a certified copy of the trade union’s certificate of registration and must specify –
(a) the workplace in respect of which the trade union seeks to exercise the rights;
(b) the representativeness of the trade union in that workplace, and the facts relied upon to demonstrate that he is a representative trade union, and
(c) the rights that the trade union seeks to exercise and the manner in which it seeks to exercise those rights.’
In the case of SACCAWU v Speciality Stores Ltd (1998) 19 ILJ 557 (LAC)). The LAC also held that Section 21(2) was a precondition to the acquisition of organisational rights and that the CCMA cannot validly exercise the functions of Section 21 if the preconditions have not been complied with. A referral to the CCMA is therefore, not in compliance with subsection (2), and thus null and void.
This means that employers will need to adhere to Section 21(3) to (6) of the LRA in that:
(3) Within 30 days of receiving the notice from the union, the employer must meet with the union and endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of the workplace.
(4) If a collective agreement is not concluded, either the registered trade union or the employer may refer the dispute in writing to the CCMA.
(5) The party who refers the dispute to the CCMA however must satisfy the commission that a copy of the referral has been served on the other party to the dispute.
(6) The Commission must appoint a commissioner to attempt to resolve the dispute through conciliation.
Employers are urged to contact EDMA Services should you receive any notification from a Trade Union and we can assist you through the Section 21 process.