ORGANISATIONAL RIGHTS AND TRADE UNION ACCESS
Written by Laurence Moeti
Trade union activity is an important component of South Africa’s collective labour-relations system. For establishments operating in the Hairdressing, Cosmetology, Beauty and Skincare Industry, understanding trade union organisational rights is particularly important because establishments operate within a regulated bargaining-council environment.
The Constitution of the Republic of South Africa recognises the right of every worker to form and join a trade union, participate in its activities and programmes, and strike. It also recognises the right of trade unions, employers and employers’ organisations to engage in collective bargaining.
These rights, however, are not unlimited. The Labour Relations Act 66 of 1995 (LRA) regulates how organisational rights are exercised and provides mechanisms for resolving disputes between trade unions and establishments. The LRA specifically regulates organisational rights and promotes and facilitates collective bargaining at the workplace and sectoral level.
What are organisational rights?
Organisational rights are rights granted to registered trade unions to enable them to organise employees, communicate with members, recruit members and represent employees in the workplace.
The LRA provides for several organisational rights, including:
Access to the workplace;
Deductions of trade union subscriptions;
The election of trade union representatives or shop stewards;
Trade union representatives’ leave; and
Disclosure of relevant information to representative trade unions.
For establishments, one of the most important rights to understand is trade union access to the workplace, regulated primarily by section 12 of the LRA.
Trade union access to an establishment
Section 12 of the LRA provides that an office-bearer or official of a representative trade union is entitled to enter an employer’s premises for purposes including recruiting members, communicating with members and serving members’ interests.
A representative trade union may also hold meetings with employees at the employer’s premises outside their working hours.
This does not mean, however, that a trade union official has an unrestricted right to enter an establishment whenever they choose.
The LRA specifically provides that organisational rights are subject to conditions relating to time and place that are reasonable and necessary to safeguard life or property or prevent undue disruption of work.
This distinction is particularly important in the Hairdressing, Cosmetology, Beauty and Skincare Industry.
An establishment may have clients receiving treatments, appointments taking place, hygiene and safety requirements, cash-handling procedures and other operational considerations. An establishment may therefore reasonably regulate when and where trade union activities take place, provided that the restrictions are genuinely reasonable and do not amount to an attempt to frustrate lawful organisational activity.
Does a trade union have an automatic right of access?
Not every individual claiming to represent a trade union automatically has an unrestricted right of access to an establishment.
The LRA generally refers to a representative trade union when dealing with organisational rights. Section 11 defines a representative trade union as a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of employees employed by an employer in a workplace.
The question of representativeness can therefore become important where a trade union seeks to exercise organisational rights.
However, establishments should be particularly careful where a registered trade union is a party to the relevant bargaining council. Section 19 of the LRA provides that registered trade unions that are parties to a bargaining council enjoy the organisational rights contemplated in sections 12 and 13 in workplaces falling within the registered scope of that bargaining council, irrespective of their representativeness at a particular workplace.
This is particularly relevant to establishments operating within the Hairdressing, Cosmetology, Beauty and Skincare Industry.
What should an establishment do when a union requests access?
An establishment should not simply refuse access because management does not want trade union activity taking place.
Instead, management should establish:
whether the organisation is a registered trade union;
whether the trade union falls within the applicable bargaining-council arrangements;
whether the establishment falls within the relevant scope of the bargaining council;
what organisational right the union is seeking to exercise;
when and where the union proposes to exercise that right; and
whether reasonable workplace conditions need to be agreed upon.
The establishment should communicate professionally with the union and, where necessary, agree on reasonable arrangements concerning access, meetings and communication with employees.
For example, an establishment may reasonably require a union meeting to take place in a designated area, outside treatment times or during employees’ breaks, where this is necessary to prevent disruption to clients and establishment operations.
Organisational rights and collective bargaining
Organisational rights should not be confused with collective bargaining.
Organisational rights enable a trade union to organise and represent employees. Collective bargaining involves negotiations between the parties concerning matters such as wages, working conditions and other matters of mutual interest.
The two concepts are nevertheless closely connected. Effective access to employees enables trade unions to organise, while collective bargaining provides the mechanism through which employers and employees can negotiate collectively.
Collective agreements and organisational rights
The LRA provides for parties to regulate the exercise of organisational rights through collective agreements. Establishments and trade unions can therefore agree on practical arrangements governing access, meetings and other organisational activities.
The role of the bargaining council
Establishments in the Hairdressing, Cosmetology, Beauty and Skincare Industry must also consider the role of the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry.
Collective agreements concluded within the bargaining council can have binding legal effect, including where such agreements are extended to non-parties in accordance with the LRA. The National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry has had collective agreements extended to non-parties, including agency-shop arrangements.
The industry has also had collective agreements dealing with matters such as agency-shop arrangements. Consequently, an establishment should not assume that its obligations towards trade unions are determined solely by the number of union members employed at that establishment.
The applicable bargaining-council agreements, their scope and any applicable extension to non-parties must always be considered.
Can an establishment ban trade union activity?
Generally, an establishment should not adopt a blanket prohibition on lawful trade union activity.
An establishment may regulate access in a reasonable manner, particularly where unrestricted access could interfere with clients, treatments, employees’ duties, safety, confidentiality or normal establishment operations.
However, management should distinguish between regulating access and preventing access.
A policy stating that “no trade unions are allowed on the premises” may create significant legal risk where the union has a lawful organisational right to access the workplace.
The safer approach is to establish reasonable rules governing the manner, time and place in which organisational rights may be exercised.
What happens if the parties cannot agree?
Section 21 of the LRA provides a procedure for exercising organisational rights.
A registered trade union seeking to exercise organisational rights must notify the establishment in writing and provide specified information, including the workplace concerned, its representativeness and the organisational rights it seeks to exercise.
The establishment and trade union must then meet and endeavour to conclude a collective agreement regulating the exercise of those rights.
If the parties cannot reach an agreement, the dispute may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA), subject to the applicable legal framework and any applicable bargaining-council jurisdiction.
Establishments should therefore avoid escalating disagreements unnecessarily. A refusal to engage with a legitimate organisational-rights request can result in a formal dispute.
Practical guidance for establishments
A good approach for establishments is to:
Know your industry obligations.
Establishments should familiarise themselves with the LRA, applicable bargaining-council agreements and collective agreements.
Verify the union’s status.
Establishments should establish whether the organisation seeking access is a registered trade union and whether it has rights applicable to the establishment.
Do not obstruct lawful access.
Where a trade union has a lawful organisational right, management should not frustrate or unlawfully prevent its exercise.
Protect establishment operations.
Reasonable rules concerning time, place, client privacy, safety and disruption can be established.
Put agreements in writing.
Where possible, establishments should agree in writing with the trade union on practical arrangements for exercising organisational rights.
Seek advice before refusing access.
If management is uncertain about the union’s rights, it is preferable to obtain labour-law advice before simply refusing entry.
In conclusion, trade union access is an important organisational right protected by South African labour law. At the same time, establishments retain legitimate interests in protecting their clients, employees, property, safety and establishment operations.
The correct approach is therefore not to treat trade union activity as an intrusion, nor to assume that a trade union has unlimited access to an establishment.
Instead, establishments should understand the applicable organisational rights, verify the legal framework governing the workplace and establish reasonable arrangements for exercising those rights.
For establishments in the Hairdressing, Cosmetology, Beauty and Skincare Industry, this analysis should be undertaken together with the applicable National Bargaining Council agreements and any collective agreements that bind the establishment.
