Variation of bargaining units

Courtney McNish

As one of three institutions established by the Industrial Relations Act (IRA), the Registration, Recognition and Certification Board (RRCB) is authorised to perform certain critical public functions that are vital to the maintenance of social order. The most important of these functions relate to the determination of applications by trade unions for certification as the recognised majority union (RMU) in companies.

The process adopted by the RRCB to arrive at any such determination is done in two phases. The first is the declaration of the existing bargaining units, then the counting phase comes next to ascertain for which bargaining units, if any, the union has a majority membership. The union must have membership of more than 50 per cent of the employees in any bargaining unit in order to qualify for certification.

Many years ago, the RRCB determined three bargaining units at my client’s company, however, only bargaining units one and two were certified for recognised majority union status. Section 39 of the IRA, however, allows either the RMU or the employer, after a one-year passage of time, to petition the RRCB for a variation of both the bargaining units and the record of certification. Indeed, the particular provision reads as follows:

"(1) The bargaining unit and the record of certification of recognition under this part may be varied in accordance with this section.

(2) A petition may be made to the board not earlier than one year after the certification of recognition –

(a) by the recognised majority union; or

(b) by an employer, for variation of a bargaining unit; or...."

The meaning of this section is clear. A petition may be made to the board by an employer for such certification of variation of a bargaining unit no earlier than one year after the granting of recognised majority union status to a trade union. The rest of subsection (2) deals with the criteria for qualification by workers to petition the board for variation.

This section does not respect the employer's petition to only certified bargaining units nor does it state that only certified bargaining units can be varied. If the legislature intended this outcome, then it would have been directly expressed.

As expected, my client’s organisation has gone through significant restructuring and reorganisation since the bargaining units were first determined; it recently became necessary to petition the board for the required variations. It was at that point, that I was confronted with what in my view was an illogical and unlawful practice of the RRCB where they determined that variations can only be considered and granted to bargaining units that are certified.

There is no requirement under Section 2 that makes it mandatory that the bargaining unit must be certified for it to be appropriate. It is therefore clear that the continued relevance and appropriateness of uncertified bargaining units are subject to the very same conditions and circumstances that may impact those bargaining units which are certified. This observation is made in the context of the natural vagaries of a business life cycle that would obviously impact any undertaking given the passage of time. Operating systems change, procedures and policies change, indeed a business organisation is a living entity whose life cycle is never static.

In the process of determining the appropriateness of a bargaining unit pursuant to an application for recognition from a trade union, the RRCB examines reporting structures and job descriptions of all positions existing in the company. This allows the RRCB to discern the different “communities of interest” between the different groups or classifications of jobs. It is only after the bargaining units are determined, that certification can occur. Accordingly, since certification cannot occur without first determining the appropriateness of the bargaining units then as a natural consequence, any subsequent variation must be related to this determination and not whether the bargaining unit is certified.

In Section 39 (4), the RRCB is given the authority to vary a bargaining unit and to make an order for the variation of the certification and record, thereof, made under Section 41. It is therefore my respectful view, that at this point, the misinterpretation of the word "and" may have led to the board misdirecting itself on its authority, or lack thereof, to vary uncertified bargaining units. I have no doubt in my mind that the word "and" can only be construed to mean "as well as". In this regard, the variation of a bargaining unit and a record of certification are independent but related processes. One can occur without the other as contemplated by the IRA and the board's own practice rules applicable when a trade union first applies for recognition status.

The process by which the board decides on a petition to vary a bargaining unit must therefore be almost identical to its determination process, pursuant to any application of recognition. It is only logical that the variation process must therefore revisit the appropriateness of a bargaining unit to ensure its continued relevance. It then stands to reason that in such circumstances the possibility arises that variations of a certified bargaining unit can lead to a consequential variation of an uncertified one and vice-versa.

Upon a petition to vary, the employer should therefore present to the board, all the bargaining units that were previously determined to be appropriate and relevant along with evidence in support of the petition request including new or revised job descriptions. The board then is required to make its decision to vary, based on the current appropriateness of the bargaining units in accordance with Section 33 of the act be they certified or not.