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 ce
