Organisational rights and the right to bargain
Employers and unions alike sometimes confuse the organisational rights granted by the Labour Relations Act based on the level of representation of the union and the right to bargain. The union may, wrongly, think it is entitled to bargain with the employer once it reached majority status. Certain rights are afforded to the sufficiently representative union and to the majority union. Section 11 to 16 of the LRA deals with the organisational rights afforded to unions. Section 12, 13 and 15 allow the sufficiently representative union to have access to the workplace, its subscription levies deducted and time off for its officials. Once majority status is achieved, the union becomes entitled to appoint union representatives and to access of information in terms of section 14 and 16.
There are therefore three main ways in which a trade union may acquire organisational and bargaining rights. Firstly, the sufficiently representative union can use the procedures set out in the LRA to acquire the basic organisational rights afforded by sections 12 to 16. The process to acquire those rights is set out in sections 21 and 22. They however still do not have the right to bargain.
The union and the employer can conclude a recognition agreement in which the trade union is recognised as a bargaining agent on behalf of a certain group of employees - the bargaining unit - and, this agreement will also then regulate the recognition as well as the collective or organisational rights. The recognition agreement normally and if properly negotiated, will allow the parties much more scope to regulate their own relationship. It is therefore important for employers and unions to enter into a recognition agreement once the union has reached a stage where it is strong enough to engage the employer in power play.
A trade union can also acquire organisational rights at an employer, regardless whether the union is sufficiently represented at that particular employer or not. This is when a trade union is party to a Bargaining council. Section 19 provides that registered trade unions that are parties to a Bargaining council automatically have the right of access to the employer’s premises and the deduction of trade union subscriptions in respect of all workplaces within the registered scope of the council.
Section 4 of the LRA also affords every employee the right to form and belong to a union. This section mirrors section 23 of the Constitution which affords all employees the constitutional right to form and belong to a Union. Section 23(5) of the Constitution grants every employer and every employee the right to engage in collective bargaining. It is this sub section that sometimes gives raises the argument that this right has a corresponding duty on an employer to engage in collective bargaining. These organisational rights afforded by the LRA should be distinguished from the collective bargaining process the employer and employees and its union engage in, which is a voluntary process.
In the case of SANDU v Minister of Defence & others; Minister of Defence & others v SANDU & others (2006) 15 SCA 4.5.1 and  11 BLLR 1043 (SCA) the appeal arose from three judgments of lower courts. Common to all three appeals was the issue of whether the SANDF was obliged to bargain collectively with SANDU. SANDU mainly relied on section 23 of the Constitution, which confers on trade unions inter alia a right to “engage in collective bargaining”. The Supreme Court of Appeal (SCA) considered various international models. It found that the voluntarist approach that emerges from these international instruments has characterised our labour dispensation since its liberalisation with the amendments to the Industrial Relations Act 1956 when all workers were permitted to organise and to strike in 1979. The SCA mentioned that voluntarism does not mean that employers and employees necessarily negotiate voluntarily. Often they negotiate in order to avert the economic pressures brought about by a strike or a lock-out. This pressure is one of the principal driving forces behind the voluntarist system. The SCA found that when regard is had to the objectives of the LRA, it becomes clear that the legislature understood that its role was to do no more than provide a framework for collective bargaining and the fact that the legislature had only provided for advisory arbitration in disputes relating to collective bargaining clearly indicates that the Act does not envisage an enforceable duty to bargain.
In the more recent NEWU v Leondard Dingler (Pty) Ltd & another (2011) 20 LC 11.3.1 the employer cancelled all collective agreements between itself and the union after the union was deregistered and lost its case in the Labour Court. The collective agreements regulated a wide range of issues, including the organisational rights enjoyed by the union.
In this case, the union asked the Labour Court to declaration that irrespective of whether the union was registered or not, it retained the right to engage in collective bargaining with the employer. Therefore, what the union was effectively trying to do was to directly enforce its right in terms of section 23(5) of the Constitution to engage in collective bargaining on the basis that the employer has a corresponding duty to bargain.
The intention of the legislature and the essence of the Labour Relations Act, in the context of collective bargaining, is voluntarist and no court will make such a ruling. This means that the employer can refuse to bargain with the union, therefore, there is no legally enforceable duty on an employer to bargain, unless the employer agreed to recognise and bargain with the union in a recognition agreement. Without such an agreement, the union must use its collective muscle to get the employer to the bargaining table – therefore, it must call its members to strike, or threaten to do so, to engage the employer in collective bargaining.