In recent months, we’ve seen a surge in client inquiries about trade unions and collective labour law. Many employers express concern, even panic, when they first encounter union activity in their workplace. However, understanding the fundamentals of collective labour law can transform what seems like a threat into an opportunity for building productive workplace relationships.
While individual employment law governs the relationship between one employee and their employer through employment contracts, dismissal procedures, and disciplinary actions, collective labour law operates differently. It involves relationships between groups of employees (represented by trade unions) and employers or employer organizations. This shift from individual to collective representation is designed to level the playing field in workplace negotiations.
The most crucial point for employers to understand is that only registered trade unions have legal standing to exercise organizational rights. A registered trade union must meet strict requirements under Section 95 of the Labour Relations Act, including, demonstrating independence, having a proper constitution (which includes provisions for maintaining proper financial controls, , and establishing procedures for electing officials and conducting strike ballots), having an address within the RSA and being registered formally as a genuine trade union by an officer of the Department of Labour designated by the Minister.
When you receive any communication from a union, your first step should be to verify their registration status. Request their Certificate of Registration – if they can’t provide it, they have no legal right to organizational recognition.
Registered trade unions with sufficient workplace representation can claim five specific organizational rights:
1. Workplace Access – The right for union representatives to enter your premises 2. Subscription Deductions – Automatic deduction of union fees from member salaries
3. Shop Steward Representation – Elected employee representatives within the workplace 4. Leave for Union Activities – Time off for shop stewards to perform union duties 5. Information Disclosure – Access to relevant workplace information
Importantly, these rights operate on two levels of representation. Sufficient representation (not specifically defined in the Act) entitles unions to workplace access and subscription deductions. Majority representation (50% plus one) grants access to all five rights.
When a union seeks to exercise organizational rights, they must issue a Section 21 notice requesting a meeting within 30 days. This notice should include their registration certificate, evidence of their membership levels, which rights they seek to exercise, and how they propose to exercise them.
Never ignore this notice. Your response sets the foundation for what could be a years-long relationship. Approach it as relationship-building rather than confrontation.
The goal of this meeting is to conclude a collective agreement outlining exactly how these rights will be exercised. This isn’t about whether the union has rights – if they meet the representation thresholds, they’re legally entitled to them. Instead, it’s about agreeing on practical implementation that respects both union rights (and through them the rights of your employees) and operational requirements.
If parties cannot reach agreement within 30 days, either party can refer the dispute to the CCMA for conciliation. If conciliation fails, the matter can proceed to arbitration where a commissioner will make a binding decision. Alternatively, the union may choose to strike over organizational rights, treating it as a mutual interest dispute.
Not all industrial action is legally protected. A protected strike must be over a matter of mutual interest (not a rights dispute), follow failed conciliation procedures, and include 48-hour notice. During protected strikes, employees cannot be dismissed for striking but receive no pay. Importantly, while employees may not be sanctioned for striking, they can still be disciplined for misconduct committed during the protected strike e.g. causing damage to property or assaulting fellow employees.
Unprotected strikes don’t meet these requirements, allowing employers to take disciplinary action and seek court interdicts. Understanding this distinction helps employers respond appropriately to different situations.
Shop stewards remain employees first and union representatives second. They’re not above company policies or immune from disciplinary action for misconduct. However, employers must notify the union before taking disciplinary action against shop stewards, ensuring they’re not victimized for their representative role.
Successful union relationships require mutual respect and good faith engagement. Both parties should remember that strikes and lockouts are measures of last resort – nobody wins when work and pay stop.
The Labour Relations Act’s framework is designed for self-regulation, encouraging parties to negotiate mutually acceptable solutions. The various rights and remedies exist to balance power between employers and employees, not to create adversarial relationships.
For employers facing union recognition requests, approach the situation with an open mind. Understand your rights and obligations, engage respectfully, and focus on building a framework for ongoing cooperation. The relationship you establish during initial recognition discussions often determines the tone for years to come.
Remember, collective labour law is fundamentally about balance. The legislative framework provides mechanisms for both parties to exercise power fairly, encouraging negotiated solutions over confrontational approaches.
By understanding these fundamentals, employers can transform union recognition from a source of anxiety into an opportunity for structured, productive workplace relationships that benefit all parties involved.
In recent months, we’ve seen a surge in client inquiries about trade unions and collective labour law. Many employers express concern, even panic, when they first encounter union activity in their workplace. However, understanding the fundamentals of collective labour law can transform what seems like a threat into an opportunity for building productive workplace relationships.
While individual employment law governs the relationship between one employee and their employer through employment contracts, dismissal procedures, and disciplinary actions, collective labour law operates differently. It involves relationships between groups of employees (represented by trade unions) and employers or employer organizations. This shift from individual to collective representation is designed to level the playing field in workplace negotiations.
The most crucial point for employers to understand is that only registered trade unions have legal standing to exercise organizational rights. A registered trade union must meet strict requirements under Section 95 of the Labour Relations Act, including, demonstrating independence, having a proper constitution (which includes provisions for maintaining proper financial controls, , and establishing procedures for electing officials and conducting strike ballots), having an address within the RSA and being registered formally as a genuine trade union by an officer of the Department of Labour designated by the Minister.
When you receive any communication from a union, your first step should be to verify their registration status. Request their Certificate of Registration – if they can’t provide it, they have no legal right to organizational recognition.
Registered trade unions with sufficient workplace representation can claim five specific organizational rights:
1. Workplace Access – The right for union representatives to enter your premises 2. Subscription Deductions – Automatic deduction of union fees from member salaries
3. Shop Steward Representation – Elected employee representatives within the workplace 4. Leave for Union Activities – Time off for shop stewards to perform union duties 5. Information Disclosure – Access to relevant workplace information
Importantly, these rights operate on two levels of representation. Sufficient representation (not specifically defined in the Act) entitles unions to workplace access and subscription deductions. Majority representation (50% plus one) grants access to all five rights.
When a union seeks to exercise organizational rights, they must issue a Section 21 notice requesting a meeting within 30 days. This notice should include their registration certificate, evidence of their membership levels, which rights they seek to exercise, and how they propose to exercise them.
Never ignore this notice. Your response sets the foundation for what could be a years-long relationship. Approach it as relationship-building rather than confrontation.
The goal of this meeting is to conclude a collective agreement outlining exactly how these rights will be exercised. This isn’t about whether the union has rights – if they meet the representation thresholds, they’re legally entitled to them. Instead, it’s about agreeing on practical implementation that respects both union rights (and through them the rights of your employees) and operational requirements.
If parties cannot reach agreement within 30 days, either party can refer the dispute to the CCMA for conciliation. If conciliation fails, the matter can proceed to arbitration where a commissioner will make a binding decision. Alternatively, the union may choose to strike over organizational rights, treating it as a mutual interest dispute.
Not all industrial action is legally protected. A protected strike must be over a matter of mutual interest (not a rights dispute), follow failed conciliation procedures, and include 48-hour notice. During protected strikes, employees cannot be dismissed for striking but receive no pay. Importantly, while employees may not be sanctioned for striking, they can still be disciplined for misconduct committed during the protected strike e.g. causing damage to property or assaulting fellow employees.
Unprotected strikes don’t meet these requirements, allowing employers to take disciplinary action and seek court interdicts. Understanding this distinction helps employers respond appropriately to different situations.
Shop stewards remain employees first and union representatives second. They’re not above company policies or immune from disciplinary action for misconduct. However, employers must notify the union before taking disciplinary action against shop stewards, ensuring they’re not victimized for their representative role.
Successful union relationships require mutual respect and good faith engagement. Both parties should remember that strikes and lockouts are measures of last resort – nobody wins when work and pay stop.
The Labour Relations Act’s framework is designed for self-regulation, encouraging parties to negotiate mutually acceptable solutions. The various rights and remedies exist to balance power between employers and employees, not to create adversarial relationships.
For employers facing union recognition requests, approach the situation with an open mind. Understand your rights and obligations, engage respectfully, and focus on building a framework for ongoing cooperation. The relationship you establish during initial recognition discussions often determines the tone for years to come.
Remember, collective labour law is fundamentally about balance. The legislative framework provides mechanisms for both parties to exercise power fairly, encouraging negotiated solutions over confrontational approaches.
By understanding these fundamentals, employers can transform union recognition from a source of anxiety into an opportunity for structured, productive workplace relationships that benefit all parties involved.
