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Employment: Is the provision of membership forms a prerequisite for registered trade unions to obtain organisational rights?

Organisational rights are an important aspect of labour relations. However, the provision of these rights can be a contentious issue, with employers often resisting the efforts of trade unions to secure them. This raises the question: is the provision of membership forms a prerequisite for trade unions to obtain organisational rights?

In the matter between the South African Cabin Crew Association (“SACCA”) and the National Union of Metalworkers of South Africa (NUMSA”) v South African Airways (SOC) Ltd (“SAA”), the  Commission for Conciliation, Mediation and Arbitration (CCMA”) considered whether NUMSA and SACCA (“the unions”) should be granted organisational rights in terms of section 21(8) of the Labour Relations Act, 1995 (“LRA”). SAA refused to grant the unions these rights. It argued that they were not entitled to these rights because the unions had not demonstrated that they were sufficiently representative in the workplace.

In February 2022, a collective agreement that granted organisational rights to the unions was terminated by SAA. This was done to conclude new collective agreements granting organisational rights to other trade unions. On 25 November 2022, SACCA and NUMSA wrote to SAA and informed it that they wished to exercise certain organisational rights. Attached to the unions’ request was, amongst other things, SACCA’s list of members and NUMSA’s past remittance, which was illegible.

SAA requested the unions to provide union membership forms that were not older than 90 days. The reason for the request was that many of its employees were no longer members of these unions and that the unions had previously made misleading and inaccurate statements regarding their membership. In addition, evidence of subscription dues deducted from employees’ salaries could not be relied upon to demonstrate representativity because SAA no longer deducted trade union subscriptions. The company had stopped these deductions because the previous collective agreement granting organisational rights had been cancelled.

The unions believed the documents they had provided were sufficient to demonstrate proof of their representativity as required for granting the organisational rights they sought. When SAA rejected this argument, the unions referred a dispute to the CCMA in terms of section 21(8) of the LRA.

At the conciliation proceedings, SAA raised a jurisdictional point regarding whether the CCMA had jurisdiction to conciliate the matter. It argued that the unions had not complied with the peremptory requirements of section 21(2) of the LRA. Section 21 of the LRA requires a trade union (or trade unions acting jointly) seeking organisational rights to provide the employer with notice, accompanied by a certified copy of its certificate of registration, which specifies the following:

  • the workplace in respect of which the trade union seeks to exercise the rights;
  • the representativeness of the trade union in that workplace and the facts relied upon to demonstrate that it is a representative trade union; and
  • the rights that the trade union seeks to exercise and how it seeks to exercise those rights.

SAA argued that the CCMA had no jurisdiction to conciliate the matter as the unions had not complied with the peremptory requirements of section 21(2)(b). SAA argued that section 21(2) requires unions to provide recent membership forms as sufficient proof of membership to demonstrate representativity. It submitted that a list of union members provided by a union is insufficient to meet the requirements in terms of section 21(2).

The unions argued that no legal provision required them to provide “recent” membership forms. Furthermore, they claimed that providing SAA with the list of its members constituted substantial compliance with section 21(2).

The Commissioner found that sections 21 (2)(a) to (c) of the LRA set procedural preconditions that must be complied with by the unions before the CCMA can determine whether organisational rights should be granted.

The Commissioner found in favour of SAA and held that:

  • actual union membership forms needed to be provided to SAA to enable it to determine whether the unions enjoyed sufficient representation in the workplace;
  • a list of members is not sufficient proof of membership;
  • there are no better and more objective ways to determine union membership other than providing a signed membership form; and
  • a failure to provide SAA with copies of union membership forms meant the unions did not satisfy the requirement in section 21(2) of the LRA.

Therefore, the CCMA lacked jurisdiction to conciliate the matter.

The CCMA must determine if jurisdictional requirements have been met, and if they are not met, the CCMA must dismiss the matter. This highlights the responsibility of trade unions not to burden the CCMA with cases that are not ready for determination, as the CCMA has limited resources and many pending cases. When granting organisational rights, the union must provide the employer with recent union membership forms to prove they have representativity within the workplace. However, the CCMA did not indicate what would constitute “recent” membership forms. This is likely to be determined by the circumstances of each case.

The decision by the CCMA is welcomed. There is currently no Labour Court judgment dealing with this issue, and as a result, this CCMA decision is significant.

*ENSafrica acted for SAA in this matter.

Brian Patterson

Executive | Employment

Kerrie-Lee Olivier

Associate |Employment

Tswelopele Ramokoka

Candidate Legal Practitioner | Employment