For many employers, their first contact with a trade union comes unexpectedly – often by way of a formal letter or email. In terms of section 21 of the Labour Relations Act, 1995 (Act 66 of 1995) (LRA), such communication typically states that:

•   Employees have joined the trade union.

•   The union intends to exercise specific organisational  rights in the workplace, as provided for in the LRA.

•   The union requests a meeting to discuss its recognition  in the workplace.

Section 21 of the LRA provides that a representative trade union in a particular workplace may request recognition in writing. The rights a union may claim depend on its level of representation: some rights require only a lower percentage of membership, while others demand a higher percentage.

Once such a request is received, the employer has 30 days to meet with the trade union in a bid to conclude a collective agreement.

Step 1: Verify the information Review the information provided by the trade union to ensure that its notice and request comply with the requirements of the LRA, including any mandatory information and appendices that must be send to the employer.

Confirm that the employees listed are currently employed and that the union’s workplace representation meets the required legal threshold. If there is uncertainty, the employer may request additional proof, such as copies of membership forms.

Step 2: Hold a meeting

The next step is to convene a meeting, typically attended by union representatives, the employer and its representative, and sometimes employee representatives. The purpose of this meeting is to discuss the union’s request and clarify which rights the union will exercise if recognition  is granted. It also provides the employer with an opportunity to ask questions regarding how the union will operate in the workplace, such as the scheduling of meetings, the appointment of workplace representatives (shop stewards), and methods of communication with members.

Step 3: The recognition agreement If the parties reach consensus, they must conclude a recognition agreement which formally establishes their relationship. This agreement sets out the organisational rights the trade union may exercise in the workplace.

Depending on its level of representation, these rights can include:

•   The deduction of union members’ fees.

•   Access to the workplace to meet with members.

•   Appointment of shop stewards.

•   Leave for union activities.

•   Disclosure of relevant information.

If no agreement is reached, the union may refer the matter to the Commission for Conciliation, Mediation, and Arbitration (CCMA) for conciliation. Should this process fail, the union may either initiate a strike or refer the dispute to arbitration, where the CCMA can issue an order granting recognition of specific rights.

The union-employer relationship The way an employer responds to a union’s initial approach often sets the tone for the relationship going forward. Handling the process professionally, openly, and with an awareness of the legal requirements can help prevent unnecessary conflict. Employers should always seek legal advice before signing a recognition agreement, as such agreements carry long-term implications for workplace management.

A constructive relationship with a trade union is not inherently negative. In fact, when clear rules and boundaries are in place, unions can provide a structured channel for managing labour relations. The key is to understand the process, respond appropriately from the first communication, and ensure that any agreement balances the interests of both the business and its employees.

One of the important things to understand, is the rights a trade union may enjoy in terms of the LRA. As described  earlier in this article, these rights must be contained in the recognition agreement. Once included and recognised, these rights entail:

Access to the workplace

Any official or office bearer of such a recognised trade union is allowed to enter the employer’s premises in order to recruit new members, serve their members’ interests and hold meetings, or to conduct any ballot in terms of their constitution. It is important to note that trade unions are limited to meeting with their members outside normal working hours unless agreed otherwise.

Employers should take care to conclude a collective agreement with the relevant trade union to give timeous notice of their intention to exercise this right (i.e. 48 hours’ notice before conducting a ballot).

Deduction of subscriptions/levies This right entitles the employer to deduct trade union subscriptions or levies from the remuneration of members and to remit such amounts to the trade union. The exercise of this right is subject to the employee’s prior authorisation, which may be withdrawn by the employee upon giving the required notice.

When remitting the deducted amounts to the trade union, the employer must provide the following information:

•   A list of the names of all members from whose remuneration deductions have been made and included in the remittance.

•   Details of the amounts deducted and remitted, together with the period to which the deductions relate. 

•   Copies of any notices of revocation received, where applicable.

Trade union representatives

The members of a registered trade union, or two or more registered trade unions acting jointly, that represent the majority of employees  in a workplace are entitled to elect a trade union representative (shop steward).

The representative is responsible for representing employees  in disciplinary and grievance proceedings, as well as monitoring the employer’s compliance with labour legislation and any applicable collective agreements. The representative is also entitled to reasonable time off to perform these duties and to receive training relevant to his or her functions.

Leave for trade union activities

An employee who is an office-bearer of a representative trade union is entitled to take reasonable leave in order to perform or fulfil the duties and responsibilities of that office. The employer and the trade union may agree on the number of leave days available, whether such leave will be paid or unpaid, and any conditions applicable to the granting of such leave.

Disclosure of information

By acquiring this right, the trade union may require the employer to disclose  all relevant information necessary to enable the trade union to effectively perform its functions or to engage in collective bargaining. It should be noted, however, that certain limitations apply to such disclosure. In particular, information that is legally privileged, or the disclosure of which would contravene any law or court order, is excluded.

Rights of trade unions

The rights listed here are not automatically conferred. Trade unions must first seek recognition of these rights from the employer. Should recognition be refused, the matter may be referred to the CCMA, and may result in strike action.

It is important to note that trade unions with sufficient representation in the workplace (approximately 25% of employees) are generally limited to rights of access to the workplace and the deduction of union subscriptions. In contrast, majority trade unions (representing 50% plus one) may qualify for all the aforementioned rights.

Employers are advised to obtain appropriate legal advice when approached by a trade union seeking to exercise these rights. Doing so will assist in ensuring compliance with statutory requirements and in managing potential operational or labour-related  risks in the workplace

By Meyer Louw and Xander Levendal, legal advisors, LWO Employers Organisation