The right of managers to belong to a Union

Johanette Rheeder

Freedom of association is a Constitutional as well as a basic labour right of every employee in an organisation, regardless the status and seniority of the employee. Section 4 of the Labour Relations Act (LRA) determines that every employee has the right to participate in forming a trade union and to join a trade union, subject to its constitution. The employee furthermore, has the right to participate in its activities and stand for election.

This applies to senior managers as well and the section effectively trumps the common law in that a manager who belongs to a Union is not in breach of his/her duty of fidelity to the employer. This right can also not be excluded by contract. Any contract containing a clause prohibiting Union membership will be unenforceable.

The employer is also not without remedy. The senior employee or manager still owes the employer a duty of good faith and must perform his functions for which he was appointed under this duty. In IMATU & Others v Rustenburg Transitional Council (2002) 11 LC 12.2.1, The court held that "the employer cannot seek to infringe the employee's freedom of association, but may pursue breach of contract remedies should a senior manager, who is also in a senior position in the trade union, not be able to serve the interests of his employer in good faith. "The employee must still do the work for which he is engaged and observe the secondary duties by which he is bound under the contract. If he does not, he can be disciplined for misconduct or laid off for incapacity."

The employer should also enter into an agreement with the employee as to what is defined as confidential information which may not be disclosed to the Union and what it requires of the employee in this regard. The employee should also be cautious, the mere silence during a meeting may also indicate or disclose confidential information and best avoid sensitive meetings, than just keeping quiet, which might send its own message.

Important to note is that the right to freedom of association is in essence the right to act as a group, this presupposes collection action by members. This collective action does not give the individual more rights than he/she has on an individual basis. For instance, the employee does not have a right to claim deduction of levies from an employer if the Union is not sufficiently representative to claim the rights of section 13 of the Labour Relations Act. 

In Food & Allied Workers Union & another v The Cold Chain (2007) 16 LC 8.29.1, the employee had been dismissed by the employer. As an alternative to retrenchment, the respondent offered the employee a position on a higher grade, provided that he relinquished his position as a shop steward. When he refused, he was dismissed. It was held that section 23(2) of the Constitution guarantees employees the right to form and join trade unions, and to engage in activities related thereto. For the employer to deny an employee promotion into a higher position unless he surrendered his position as a shop steward would be unlawful. The employee was awarded 9 months' remuneration as compensation.

Johanette Rheeder AttorneysIn association with Gildenhuys Lessing Malatji Attorneys This e-mail address is being protected from spambots. You need JavaScript enabled to view it www.glmi.co.za