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This question arises time and time again – I am a senior manager – may I join a trade union?
The question was raised in IMATU & others v Rustenburg Transitional Council [1999] 12 BLLR 1299 (LC). The case dealt with the question of senior managers holding membership or holding office in a trade union. In this particular matter, the employer adopted a resolution prohibiting senior managerial employees from serving in the executive positions in trade unions and prohibiting them from participating in trade union activities. After an objection by some of its management, the employer withdrew the requirement that they were not allowed to be involved in union activities, but refused to withdraw the prohibition on senior management serving in executive positions in trade unions. The employees based their argument on the fact that the amended resolution contravened the provisions of the LRA and the Constitution.
The employer maintained that their senior managers could not remain loyal to the employer, and at the same time remain loyal to the trade union as office bearers of their union. The employer also maintained that if a senior manager was a member or office bearer of a trade union, he could not also at the same time remain loyal to those responsible for disciplining staff in the employment organization. The employer maintained that any person joining a trade union, including its senior managers, automatically became committed to that body. The union was committed to maximise the benefits of its members as derived from employment.
The employer maintained that senior managers could not remain loyal to that type of commitment and at the same time remain loyal to the employer. The Court stated that whilst there was no direct evidence to show that leaves senior managers would commit a breach of the duty to the employer by excepting a position on the executive of a trade union, or by becoming a member of a trade union, it was logical to assume that such a breach of duty to the employer would easily occur. It cannot be denied that a conflict between capital and labour always has been there and will continue to be there. Therefore, by committing themselves to a trade union, employees " go over to the opposition" as it were.
Employers are entitled to expect a greater loyalty from senior managers, and a senior employee who took up a leadership role in a trade union was automatically placed in a position of struggle against the employer. Therefore, in terms of common law it could be said that a senior employee should not be permitted to join a trade union. However, in terms of the Constitution, every employee has the right to join and hold office in a union and to participate in its activities. The LRA makes similar provisions.
The opinion of the court was that if it was the intention of the lawmakers to make a distinction between ordinary employees and senior employees with regard to membership of trade unions, then it would have done so - in the LRA and in the Constitution. However, no such distinction has been made. The court felt that despite these legal rights, employees who joined trade unions are still obliged to perform the work for which they were engaged - and this would include loyalty to the employer.
It would seem obvious that a senior manager who is a member of a trade union or an office bearer of a trade union, would bring about a serious conflict of interest. Senior employees who do not perform the duties for which they were engaged as a result of trade union membership, could be charged with misconduct and face disciplinary action. Senior employees who are considering membership of a trade union must therefore exercise great caution in making this decision.
It would therefore seem that whilst an employer cannot prohibit a senior employee from joining a trade union or from holding office in the trade union, the loyalty of that employee to the employer would be seriously brought into question. Due to other reasons, occasioned by such an employee's membership or holding office in the trade union, might subsequently result in that employee being dismissed.
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