Sufficiently representative

[Dave A]

Can anyone point me to a regulation published or a precedent established that gives guidance to the limits of the term "sufficiently representative".

This relates to the use of the term per s32.5.a of the Labour Relations Act, 1995 which is as follows:

5) Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if –

a) the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and

b) the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectoral level or in the public service as a whole.

Obviously the purpose is to allow some leeway below 50%+1, but just how much leeway could still be considered "sufficiently representative"?

[Citizen X]

Can anyone point me to a regulation published or a precedent established that gives guidance to the limits of the term "sufficiently representative".

This relates to the use of the term per s32.5.a of the Labour Relations Act, 1995 which is as follows:

5) Despite subsection (3)(b) and (c), the Minister may extend a collective agreement in terms of subsection (2) if –

a) the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council; and

b) the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectoral level or in the public service as a whole.

Obviously the purpose is to allow some leeway below 50%+1, but just how much leeway could still be considered "sufficiently representative"?

Okay, I think that I’ve got this one! I think that here we trying to establish based on representation what organizational rights a particular union has.
1. If the Union represents 51% or more of the sum total of employees in that work place then they have the following organizational rights: 1: Access to the workplace, 2: Membership fees deducted from salary; 3: Can elect shop stewards; 4: Shop stewards get leave for union activities;[1]
2. Union is sufficiently represented, Union represents less than the majority of employees in the workplace. The LRA does not define sufficiently representative but gives guidelines(approx 30%), then they have the following organizational rights: 1: Access to the workplace, 2: Membership fees deducted from salary and 3: Shop stewards get leave for union activities[2]
3. Union is a member of a bargaining council: 1: Access to the workplace, 2: Membership fees deducted from salary[3]
4. Minority Union. Union may enforce rights through collective bargaining and industrial action(two or more unions may act jointly to acquire rights.
I think here we have to look to caselaw and gazettes for a precise answer, in particular NUMSA v Bader Bop(PTY) LTD (2003) 24 ILJ 305(CC), also have a closer look at s 12, 13, 14, 15, 16 LRA for more guidance!
Hope that this helps!

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[1] Vide: Labour Law Rules! Mcgregor et al. Siber Ink CC. 2012.page 167

[2] Supra n 1 para 2

[3] Supra n1 para 3

[Dave A]

Vanash, I suggest the core of the issue is just how small a minority is allowed to dictate to a majority who prefer their own autonomy to functioning in a collective

Would less than 10% sound acceptable?

[Dave A]

I see s11 also refers to "sufficiently representative" -

In this Part, unless otherwise stated, "representative trade union" means a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace.

s14 requires a majority...

30% is required to form a statutory council... Perhaps that is where the "implied guideline" thought comes from?

[Citizen X]

I see s11 also refers to "sufficiently representative" -

s14 requires a majority...

30% is required to form a statutory council... Perhaps that is where the "implied guideline" thought comes from?

A very good evening to you Dave,This is indeed a valid query! It’s got me thinking as well! To be perfectly honest with you, I don’t have a direct answer. That said, I think that sufficiently representative in this context is relative to the Unions themselves. Since membership fees are involved, each Union will make it their business to know how many employees of a certain sum total of employees of a certain workplace belong to them. I suppose then a particular Union will be able to say, we as Union Y represent 53% of the employees of employer X so we have far more rights than Union Y.
To illustrate how it’s sometimes more about a Union than an employer or even an employee and to further highlight a problem that employees and employers somehow oddly enough seem to have in common let’s put it into perspective:-
1. Employer A employs 200 staff members. 140 of these employees are union members of union Y. Their monthly fee is R10. 30 staff members belong to union X. The remaining 30 employees don’t care either way about unions, they don’t want to join and they don’t want to pay no union fee to no- one! They also pay R10.
2. In percentage Union Y has 70% representativeness of employer A simply because they the top dog, the main union in town, they the boss! In percentage Union X has 15% representativeness and 15% of the staff are not union people.
3. They have annual protest for salary increase. Union Y has his own special strike and Union X their own special strike, but they march along the very same road, just different t-shirts and the odd petty squabble between union members.
4. Here is where I think the problem and sometimes the confusion comes in: Union Y enters in negotiations with the employer. Only 9% increase, the employer is happy, the majority union is happy but what about Union x and what about the employees that don’t strike. In practice Union Y has conducted an agency shop agreement with the employer, union Y worked really very hard, organising the strike, handing out the t-shirts etc. They also want a little something from all the other staff whether they union members or not. So, the 30 union members of X(they paying sweat, blood and tears R10) to Union X, but because of this closed shop agreement they have to pay their usual R10 to X and a once off special payment to Union Y(for those hard efforts) and the employer will then happily and very speedily deduct it from them for UNION X. The staff that don’t strike and don’t belong to a Union, they also must pay their once fee (I think they calling it the agency fee);
5. Here is the part where it becomes all crazy. The employer and Union Y decide to have a closed-shop agreement. In practice all poor Union X’s members who are only 30 employees from a total of 200 are now forced to join Union Y and the employees who don’t strike are also forced to join Union Y. Union Y does the usual, lock their offices at the employer’s business with the employer’s blessings and basically ban Union x from setting foot in the employer’s premises. The employer also helps to chase Union X away!!!!

[Dave A]

Don't get me started on closed shop agreements! Those are near criminal

But ultimately my interest in this is in respect of the extension of collective agreements to non-parties - folks that have absolutely no interest in or input into them.