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Labour Relations Act, 1995 (Act No. 66 of 1995)

Chapter III : Collective Bargaining

Part A : Organisational Rights

21. Exercise of rights conferred by this Part4

 

 

(1) Any registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by this Part in a workplace.

 

(2) The notice referred to in subsection (1) 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 factor relied upon to demonstrate that it 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.

 

(3) Within 30 days of receiving the notice, the employer must meet the registered trade union and endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that 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 Commission.

 

(5) The party who refers the dispute to the Commission must satisfy it 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.

 

(7) If the dispute remains unresolved, either party to the dispute may request that the dispute be resolved through arbitration.

 

(8) If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner—
(a) must seek—
(i) to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and
(ii) to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union;
(b) must consider—
(i) the nature of the workplace;
(ii) the nature of the one or more organisational rights that the registered trade union seeks to exercise;
(iii) the nature of the sector in which the workplace is situated;

[Subparagraph (8)(b)(iii) amended by section 2(a) of Act No. 6 of 2014]

(iv) the organisational history at the workplace or any other workplace of the employer; and
(v) the composition of the work-force in the workplace taking into account the extent to which there are employees assigned to work by termporary employment services, employees employed on fixed term contracts, part-time employees or employees in other categories of non-standard employment;

[Subparagraph (8)(b)(v) inserted by section 2(a) of Act No. 6 of 2014]

(c) may withdraw any of the organisational rights conferred by this Part and which are exercised by any other registered trade union in respect of that workplace, if that other trade union has ceased to be a representative trade union.

 

(8A) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of subsection (7) grant a registered trade union that does not have as members the majority of employees employed by an employer in a workplace—
(a) the rights referred to in section 14, despite any provision to the contrary in that section, if—
(i) the trade union is entitled to all of the rights referred to in section 12, 13 and 15 in that workplace; and
(ii) no other trade union has been granted the rights referred to in section 14 in that workplace;
(b) the rights referred to in section 16, despite any provision to the contrary in that section, if—
(i) the trade union is entitled to all of the rights referred to in sections 12, 13, 14 and 15 in that workplace; and
(ii) no other trade union has been granted the rights referred to in section 16 in that workplace.

[Subsection (8A) inserted by section 2(b) of Act No. 6 of 2014]

 

(8B) A right granted in terms of subsection (8A) lapses if the trade union concerned is no longer the most representative trade union in the workplace.

[Subsection (8B) inserted by section 2(b) of Act No. 6 of 2014]

 

(8C) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of subsection (7) grant the rights referred to in sections 12, 13 or 15 to a registered trade union, or two or more registered trade unions acting jointly, that does not meet thresholds of representativeness established by a collective agreement in terms of section 18, if—
(a) all parties to the collective agreement have been given an opportunity to participate in the arbitration proceedings; and
(b) the trade union, or trade unions acting jointly, represent a significant interest, or a substantial number of employees, in the workplace.

[Subsection (8C) inserted by section 2(b) of Act No. 6 of 2014]

 

(8D) Subsection (8C) applies to any dispute which is referred to the Commission after the commencement of the Labour Relations Amendment Act, 2014, irrespective of whether the collective agreement contemplated in subsection (8C) was concluded prior to such commencement date.

[Subsection (8D) inserted by section 2(b) of Act No. 6 of 2014]

 

(9) In order to determine the membership or support of the registered trade union, the commissioner may—
(a) make any necessary inquiries;
(b) where appropriate, conduct a ballot of the relevant employees; and
(c) take into account any other relevant information.

 

(10) The employer must co-operate with the Commissioner when the commissioner acts in terms of subsection (9), and must make available to the commissioner any information and facilities that are reasonably necessary for the purposes of that subsection.

 

(11) An employer who alleges that a trade union is no longer a representative trade union may apply to the Commission to withdraw any of the organisational rights conferred by this Part, in which case the provisions of subsections (5) to (10) apply, read with the changes required by the context.

 

(12) If a trade union seeks to exercise the rights conferred by Part A in respect of employees of a temporary employment service, it may seek to exercise those rights in a workplace of either the temporary employment service or one or more clients of the temporary employment service, and if it exercises rights in a workplace of a client of the temporary employment service, any reference in Chapter III to the employer's premises must be read as including the client's premises.

[Subsection (12) inserted by section 2(c) of Act No. 6 of 2014]

 

 

4 See flow diagram No. 2 in Schedule 4.