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A question of that crops up from time to time is the question of whether or not senior management are allowed to join a trade union.

The question that should be asked is not whether senior management are allowed to join a trade union - because they are allowed to join a trade union. They have freedom of choice the same as any other employee, and a senior manager is free to join a trade union and hold office in that trade union if he so chooses.

The question that should be asked is what would happen in terms of conflict of interest between the senior managers duties and responsibilities to the employer, and his duties and responsibilities to the trade union, if he was a member or office-bearer of such trade union?

 

That is the crux of the issue.

There is unfortunately not much by way of case law available on this question, but I did manage to find some information.

In IMATU & others v Rustenburg Transitional Council [1999] 12 BLLR 1299 (LC), case number J1543/98, heard in the Labour Court on 17th September 1999.

The respondent employer in this matter had adopted a resolution prohibiting senior employees from serving in  executive positions in trade unions and participating in trade union activities.

The stance of the respondent was that its senior officials could not discharge the obligations as trade union office-bearers, and at the same time be responsible for directing and disciplining staff, and for ensuring that the council's resolutions were carried out. The respondent also pointed out that these officials concerned and access to confidential information.

 

The question facing the court was the respondent's resolution, stating that "employees on the job level 1 – 3 not be allowed to serve in executive positions of trade unions, or be involved in trade union activities."

The words " or be involved in trade union activities" were later deleted from the resolution, but the balance remained.

The trade union took the matter to the Labour Court, in an effort to have the entire resolution set aside.

The job levels referred to in the resolution comprised the senior executive and managerial officials of the council.

 

The respondent gave three reasons for introducing this resolution - the first was that officials of the council have access to confidential information such as levels of maximum increases to which the respondent my degree in wage negotiations, which they would be duty-bound to disclose to the trade union if they served on its executive.

The second was that the senior managers are required to initiate or conduct disciplinary hearings against employees, and should the accused employee be a member of the union, the senior manager acting as chairman might also be a member of the trade union, and this could be seen to compromised be fulfilling of the disciplinary duties.

 

The third was that the senior managers might, by reason of their membership of the union executive, find themselves in a position in which they were" unable or unwilling to fulfil the essential tasks required of them by the employer."

The judgement stated that when employees join a trade union, they commit themselves to a body whose primary object is to maximise the benefit that its members arrived from their relationship with their employers. The point here is that trade unions are competitors for a share in the revenue of the enterprise, and by joining a union, the employee commits himself to a body that stands in opposition to the employer.

In a sense, the employee" goes over" to the opposition.

 

This, stated the judgement, can be a breach of the duty of fidelity owed by an employee to an employer, for " the servant is bound to give of personal service to his master and, as a consequence, to refrain from any course of conduct, the natural tendency of which is to injure his master's trade or business".  (R v Eayrs (1894) 12 SC 330 at 332)

The judgement also quoted from Premier Medical & Industrial Equipment (Pty) Ltd v Winkler 1971 (3) SA 866 (W) at 867H–I

 "There can be no doubt that during the currency of his contract of employment the servant owes a fiduciary duty to his master which involves an obligation not to work against his master's interests."

The Judge stated further that " there is, as far as I know, no place in our law in which it has been held to be lawful to dismiss an employee for joining a union, but I have little doubt that such a dismissal might be legitimate at common law.  Aligning oneself with a body specifically established as a counterweight to the employer is arguably a greater infringement of the duty of liability than taking up a part-time position with a competitor ; it certainly seems to be no less."

"The determining factor is, generally, the status of the employee : the more senior he is , the greater loyalty expected of him."

 

A senior employee is expected to be loyal to his employer - he is expected to support his employer in any conflicts or negotiations with the trade union, and even when a strike occurs, senior employees on expected to take up the pick and shovel.

It is obvious that a senior managerial employee who is a member of the trade union, or office-bearer of it, who has called strike, would be placed in a position of serious divided loyalty.

Such a situation would be untenable to the employee concerned, as well as to the employer.

 

The Bill of Rights, section 23,  confers on every worker the right to join a trade union and to participate in the activities and programmes of a trade union, and the right to strike.

Similarly, certain sections of the Labour Relations Act confer such rights upon an employee. Including the right to participate in the lawful activities of the union and to stand for election and be eligible for appointment as an office-bearer or official of the trade union.

The upshot of this judgement was that the respondent's resolution, prohibiting employees on job levels 1 – 3 from serving in executive positions on trade unions, was declared to be an unlawful resolution, and was set aside to the extent of the prohibition.

What is really means is that should members of senior management wish to join a trade union, they can do so.

Should those members of senior management wish to or be elected to hold office in the trade union, they can do so.

But they would then have to make a choice - between their duty of fidelity to the employer, and their duties and responsibilities to the trade union.

Such a manager could face disciplinary action for breach of duty of fidelity to his employer.

 

He could not face disciplinary action for holding union office or union membership per se.

Such a senior managers have an unfettered right to join and hold office in trade unions - but they are still bound to perform their duties and responsibilities to the employer.

It really is a matter where the senior manager must choose between the frying pan and the fire.

 

For further information, contact

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at   

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

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