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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

 

The Protection of Personal Information


By Jan du Toit, Senior Consultant, SA Labour Guide

 

After more than seven years in the making, President Ramaphosa announced last year an effective date of 1 July 2020 for the Protection of Personal Information Act (POPI), Act 4 of 2013. “Responsible Parties” only have approximately 5 months left until 30 June 2021 to become compliant in full.

 

The duration of a typical POPI compliance project will differ from one business to another depending on the nature and size of the business, as well as the Personal Information processed by a Responsible Party. Business owners are therefore advised to, without delay, embark on a compliance project to meet the deadline.

 

Even though the Protection of Personal Information Act is welcomed by most, it has been long overdue and will require business owners (“Responsible Parties” in terms of the Act) to process Personal Information according to 8 processing conditions as set out in the Act.

 

The purpose of the Protection of Personal Information Act is in essence found in the title of the Act; to protect the Personal Information of “Data Subjects”. It gives effect to ones right to privacy as enshrined in the Constitution but also provides balance in terms of the right to privacy weighed up against the right to access to information.

 

The Act regulates the manner in which Personal Information must be processed and provides protection and recourse to those whose rights are infringed. Further to this, the Act makes provision for the establishment of an Information Regulator. Advocate, Pansy Tlakula has already been appointed as the Information Regulator a couple of years ago and has done a great deal of work in establishing her office.

 

Before I get into more detail about the eight processing conditions, it is important to note that the Act is “definitions driven”. It is therefore of utmost importance to first highlight some of the definitions found in the Act for readers to better understand the eight processing conditions.

 

The first definition is that of “Personal Information”. Personal Information is widely defined in the Act and includes, but is not limited to, information relating to an identifiable living natural person or a juristic person (“Data Subjects”), such as:

  • Race, gender, sex, pregnancy, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, believe, culture, language, birth

  • History - education, medical, financial, criminal, employment

  • Identifiers – number, symbols, e-mail address, physical address, telephone numbers, location, online ID or other assignment to a person such as a unique identifier (in example a student or patient number)

  • Biometric information – physical or psychological behavioural characterization, blood type, fingerprints, DNA analysis, retinal scanning, voice recognition

  • Personal opinion views or preferences

  • Correspondence implicitly or explicitly of a private and confidential nature

  • Views or opinions of another individual\

  • The name of the person with other information or the name alone

 

The second definition of importance is that of “processing”. The processing of Personal Information includes but is not limited to any operation/activity or any set of operations, whether automated or not, concerning Personal Information. It includes:

  • Collection / receipt / recording / organizing / collation / storage / updating / modification / retrieval / alteration of Personal Information

  • Dissemination by means of transmission distribution or making available to others.

  • Merging / linking / restricting / degradation / erasure / destruction of Personal Information.

 

A Responsible Party can either be a public body, private body or any other person or persons, domiciled in South Africa and that determines the purpose and means for processing of Personal Information.

 

Throughout the entire lifecycle of Personal Information in any business, eight processing conditions must be adhered to. The eight processing conditions are summarized below:

 

Condition 1 – Accountability. The Responsible Party must always ensure that the conditions set out in Chapter 3 of the Act and all the associated measures are complied with.

 

Condition 2 – Personal Information must be collected and processed lawfully in a reasonable manner that does not infringe the privacy of a Data Subject. The Personal Information may only be processed if it is adequate, relevant, and not excessive.
Personal Information may only be processed if the Data Subject consented thereto. Alternatively, where it is necessary to do so for the conclusion or performance of a contract, an obligation in terms of law, to protect the legitimate interest of the Data Subject, or to pursue a legitimate interest of the Responsible Party.

 

A further requirement is that the Personal Information must be collected directly from the Data Subject.

 

Condition 3 requires that Personal Information must be collected for a specific explicitly defined and lawful purpose related to a function or activity of the Responsible Party. Such Personal Information may not be retained any longer than necessary for achieving the purposes for which the information was collected and/or subsequently processed.

 

Condition 4 prohibits the further processing of Personal Information unless such processing is compatible with the initial purpose of collecting the information.

 

Condition 5 requires that Responsible Parties must take reasonable, practicable steps to ensure that Personal Information is complete, accurate, and not misleading. Such Personal Information must also be kept up to date, taking into consideration the purpose of the Personal Information.

 

The nature and purpose of the Personal Information will dictate as to how often such Personal Information must be updated.

 

Condition 6 addresses some of the rights of Data Subjects, such as the right to be informed by the Responsible Party before information is collected. The purpose of collecting and from where Personal Information will be collected must be disclosed to the Data Subject.

 

A Data Subject is entitled to the details of the Responsible Party and to be made aware of the consequences of not making Personal Information available to the Responsible Party.

 

Should it be required that Personal Information be collected and processed in terms of legislation, the Data Subject must be made aware accordingly.

 

As per Section 72 of the Act, the Data Subject must be advised if Personal Information will be transferred across the borders of South Africa. Under such circumstances the Data Subject is entitled to first be made aware of legislation in other countries that provides adequate protection of the Personal Information. In the absence of legislation, whether there are any binding corporate rules in place, alternatively a written agreement that offers adequate protection for the Data Subject, concluded between the Responsible Party and he third party.

 

Condition 7 requires that Responsible Parties must secure the integrity and confidentiality of Personal Information by taking appropriate reasonable, technical and organisational measures, to prevent loss or unlawful access of Personal Information under the control of a Responsible Party.

 

In this regard the Responsible Party is required to identify all reasonable and foreseeable internal and external risks, and to establish and maintain appropriate safeguards. Compliance with such safeguards must be regularly audited and measures updated if so required.

 

Condition 8 deals with the rights of Data Subjects and participation. In terms of condition 8, Data Subjects have the right to establish whether Personal Information is held by a Responsible Party and to have it corrected or destroyed if it is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, or have been obtained unlawfully.

 

Responsible Parties are also further required to introduce Data Subject rights and participation in their PAIA (Promotion of Access to Information Act) manuals.

 

Responsible Parties are also not permitted to send direct marketing material to Data Subjects without their written consent as per from 4 four of the regulations of the Act.

 

Other important considerations in terms of the Act are that a Responsible Party may be issued with an administrative fine of up to R10 million for its non-compliance with the Act. Additionally, Data Subjects have the right to sue Responsible Parties and under specific circumstances, the Information Officer of the Responsible Party may be imprisoned.

 

Each Responsible Party must register an Information Officer (the head of the organization or a person acting in such capacity) with the Information Regulator. The Information Officer may appoint deputies to assist with ensuring compliance within the business.

 

From the above, it is evident that a POPIA compliance project is not something that should be undertaken without a solid understanding of the Act.

 

Our subscribers, a.k.a. “Responsible Parties”, are invited to attend our online POPIA presentations to better understand the Act and to ensure compliance. In-house training can also be arranged on request.

 

The author of this article is also available to assist employers with compliance projects in the form of awareness sessions, gap analysis, policy development / implementation and staff awareness.

 

For further information pertaining to training, readers are invited to visit www.labourguide.co.za or to contact Jan du Toit at .

 

 

 

 

 

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