The national lockdown, and subsequent risk-adjusted strategy for economic activity, has had many clients’ question on what rights unions are entitled to during this time, and how such rights are to be exercised. We discuss the various union’s rights hereunder.
Section 21
Unions are bound to exercise their rights in terms of Section 21 of the Labour Relations Act, as amended (hereinafter referred to as “the LRA”). Unions seeking rights in the workplace must first send a letter stating they seek certain rights in the specific workplace and indicate how many members they have in the workplace. This letter must be accompanied by a certified copy of the union’s registration certificate as well as copies of the membership forms of the members in the workplace. When such a letter is received, it is paramount that SEESA is contacted as soon as possible as to ensure that the matter is dealt with accordingly.
In terms of the LRA, a meeting with the union is to be scheduled within 30 days of receiving the above letter from the union. As the President has announced 5 levels of the risk-adjusted strategy for economic activity on the 23rd of April 2020, and the relevant ministers are yet to issue directives as to how such union meetings are to be dealt with, our advice in these circumstances is to attempt to facilitate such a meeting to discuss organisational rights through means that limit physical contact (such as Skype or WhatsApp calls).
Access
Unions who have already obtained organisational rights by finalising the above process pose a bit of a problem in law, as one is forced to try to balance the union’s rights with the reigning national lockdown (level 5), or level of the risk-adjusted strategy for economic activity that reigns at that particular time.
Unions that do have a right to access to the workplace shall still be entitled to recruit members, serve members interests in the workplace, hold meetings with employees outside working hours or hold votes as long as the union itself is allowed to trade (depending on the level of risk-adjusted strategy for economic activity). It should be noted that all union access to the workplace must be at a time and place that is reasonable and safeguards life and property and prevents undue disruption to work.
Deduction
It is a well-known principle that trade-union subscriptions or levies are deducted from the employee’s salary and/or wage by his employer and paid directly to the union. In terms of section 13 (1) of the LRA, any employee who is a member of a representative trade union may authorize the employer in writing to deduct subscriptions or levies payable to that representative trade union from the employee’s wages. It, therefore, follows that should the employee not earn wages for a period of time the employer is not required to deduct trade union levies.
However, if an employer chooses to top up the loss of income the employee has suffered after the COVID-19 TERS fund has paid out and/or remunerate the employee for services rendered from home, normal deductions (including statutory and trade union deductions) will then apply to the value of the top-up money and/or remuneration received for services rendered. Thus the employer will be obligated to deduct the subscriptions or levies of the representative trade union from the top-up money and/or payment in kind and pay the deductions over to the representative trade union.
The deductions in this regard should be done in a manner that is stipulated on the stop order instruction. If the union subscriptions or levies are indicated as a set amount, that amount should be deducted, however, if the subscription or levies indicate a percentage (%) of the remuneration received, the deduction should be calculated on the reduced amount of the remuneration received.
It is to be noted that if an employer’s operations fall within the scope of a Bargaining Council and the employer makes monthly contributions towards the Bargaining Council and that Bargaining Council has entered into a Collective Agreement with UIF, with regards to the COVID-19 TERS fund, the case may be that normal statutory deductions will apply. The employer will have to peruse the particular Bargaining Council’s Collective Agreement with UIF.
Shop stewards
The union’s right to have the members in the workplace elect a representative (or shop steward) is unaffected during any level of the risk-adjusted strategy for economic activity, as long the shop steward’s activities or the union’s right to elect a shop steward adheres to the rules and regulations of the reigning level of risk-adjusted strategy for economic activity.
Leave for trade union activities
The right of shop steward’s / trade union representatives to take leave for union activity shall still be enforceable as long as they leave taken is both reasonable and adheres to the rules and regulations of the reigning level of risk-adjusted strategy for economic activity. Therefore, should the reigning level be level 5 and no union activity/gatherings shall be permitted the union shall not be entitled to enforce the said right?
ABOUT THE AUTHORS
Martin Engelbrecht is a Labour, Consumer Protection and POPI legal advisor at SEESA Nelspruit. He obtained his L.L.B degree from North-West University. He is an admitted attorney of the High Court of South Africa with over 5 years’ legal experience in various legal fields including Labour law, litigation, Consumer Protection and POPI compliance.
AND
Diandra Cowie is a Labour and BEE Legal Advisor at SEESA Nelspruit. She obtained her B. Com Law degree at UNISA and is currently studying towards her LLB degree. She has been employed with SEESA since 2013 during which period she gained extensive knowledge in the fields of Labour, BEE and Consumer Protection and POPI.