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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 [email protected]

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

 

POPIA: Protection of Personal Information Act

22 June 2021 (09:00 - 12:00) Fully Booked)

Interactive Online Course

22 June 2021 (13:00 - 16:00) (Fully Booked)

Interactive Online Course

23 June 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

23 June 2021 (13:00 - 16:00) (Fully Booked)

Interactive Online Course

29 June 2021 (09:00 - 12:00) Fully Booked)

Interactive Online Course

30 June 2021 (13:00 - 16:00)

Interactive Online Course

COVID-19 Workplace Compliance Health, Safety and Claims Management Course

23 & 24 June 2021 (08:30 - 13:00)

Inter active Online Course

Basic Labour Relations

24 June 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

29 July 2021 (09:00 - 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

25 June 2021 (09:00 - 12:00)

Interactive Online Course

Employment Equity Committee Training

02 July 2021 (09:00 - 16:00)

Interactive Online Course

Workshop Chairing Disciplinary Hearings

15 & 16 July 2021 (09:00 - 16:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

16 July 2021 (09:00 - 12:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

22 July 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

28, 29 & 30 July 2021 (08:30 - 16:00)

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The OHS Act and the Responsibilities of Management

29 July 2021 (08:30 – 16:00)

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