Workers old enough to remember the labour relations environment in the 1980s will remember the emergence of recognition agreements. The then Labour Relations Act had no codification of trade union rights or what we today refer to as organisational rights.
Back then, emerging trade unions had to try to strong-arm employers into recognising them, and in so doing, grant the trade union stop order, access and shop steward rights.
And if union representation grew to majority representation, collective bargaining rights would be included in the recognition agreement.
It is not far off the mark to say that before the 1995 Act, trade unions entered into recognition agreements with employers on the back of their significant membership numbers and negotiating prowess.
The notion of employers recognising trade unions, at least for the purposes of trade union rights, fell away. The threshold of “sufficient representation” was born, and any trade union that now acquires sufficient representation in a workplace is automatically entitled to the trade union organisational rights associated with sufficient representation, namely access to the employer’s workplace (section 12 of the Labour Relations Act) and the obligation of employers to deduct and pay over union membership subscriptions monthly (section 13 of the Act).
Trade unions were no longer required to be recognised by employers for these rights, as they were an automatic consequence of the union having membership that met or exceeded the sufficient representation threshold.
However, the sufficient representation threshold was not defined, at least not in percentage terms. What initially became apparent, for various reasons, was that sufficient representation was in the region of 30% of all eligible union members, with eligible union members being all employees excluding senior management.
Since 1995, statutory amendments to the Act, pre-empted by evolving case law, have in certain circumstances lowered the sufficient representation to less than 30%.
The second union membership threshold dealt with in the Act for purposes relating to trade union organisational rights is majority union representation, often described to be 50% plus one member within the ranks of eligible union members.
Once a trade union acquires majority representation, two further trade union organisational rights kick in, namely the right to appoint shop stewards (referred to as trade union representatives in the Act) in terms of sections 14 and 15 of the Act, and the right to information disclosure, in terms of section 16 of the Act.
In practice, there are occasionally squabbles between employers and trade unions over the verification of actual trade union membership.
So, how does collective bargaining fit into this scenario? It could be argued that there is still some degree of recognition of trade unions when it comes to collective (wage) bargaining. It has become, wisely, a norm for employers to agree to enter into collective bargaining arrangements with unions that reach majority representation, although there is no duty to bargaining in our law per se.
Over time, collective recognition agreements are being phased out as trade unions no longer require employers to recognise them for trade union, organisational rights, as these rights have been codified in the Act, once sufficient and/or majority representation has been achieved and verified. Nowadays, the trend is to conclude separate organisational rights and collective bargaining agreements.
This makes sense on many levels. To begin with, organisational rights and collective bargaining rights are fundamentally different and unrelated. There is no logical reason why they should stand together in the same collective agreement.
Secondly, in the separate agreements scenario, an organisational rights agreement can persist in the event that a trade union loses majority representation. If both organisational and collective bargaining rights were both contained in a single collective agreement, a new collective agreement would need to be concluded, although the union may nonetheless retain a level of sufficient representation.
Our anecdotal observations of organisational rights and collective bargaining agreements is that they are not reviewed regularly to reflect renewed best practice over time. Indeed, this is perhaps even more pertinent to disciplinary procedures and codes.