The trade union movement in South Africa is extremely powerful. This is not only because of the high proportion of unionised employees and because of the extremely strong legislation supporting unionisation but also because of the political alliance between the biggest union confederation and the ruling party.
In view of the above trade unionism can mean problems for any employer. However, employers who understand the rights of trade unions, union officials, union office bearers and union members are most likely to be able to deal with trade unions successfully. This is especially so of employers who also know the limits of union rights because such employers will not be prone to allowing unions and unionised employees to do whatever they wish.
Due to their uncertainty as to where the rights of unions start and end many employers lose out because they unnecessarily give to unions rights that they are not legally required to give them. Just as often employers lose out because they fail to accord to unions rights that have been conferred by law.
The Labour Relations Act (LRA) gives employees the right, under certain circumstances, to elect union representatives (shop stewards) from amongst themselves. Section 14 of the (LRA) gives shop stewards a number of special rights such as the right to:
- Assist employees in disciplinary and grievance hearings.
- Monitor and report any of the employer’s contraventions of the law to the appropriate authorities.
- Take reasonable time off with pay during working hours in order to perform these duties.
Where a manager is aware of the risk of losing the contract due to union action he/she may become nervous and over react towards shop stewards. They may see shop stewards as invaders trying to ruin or take control of the business. Such managers then tend to see shop stewards as their enemies and plot to get even with or get rid of the shop stewards. Such an approach is clearly counterproductive because it is very likely to cause industrial action.
Instead of becoming negative towards shop stewards, managers, supervisors and foremen need to:
- Be given a full understanding of what the shop stewards’ rights are and where those rights are limited.
- Learn to keep their tempers and act rationally in the face of pressure.
- Know when and how to take legitimate action against shop stewards who exceed their powers.
- Be empowered to keep control of the workforce regardless of the presence of shop stewards.
Managers do have the right to discipline shop stewards but this must be done for fair reasons and in a fair manner. Ignoring the legal procedures is extremely dangerous when disciplining any employee, but to do so in the case of a shop steward can cause irreparable damage.
Item 4(2) of the LRA’s Code Of Good Practice: Dismissal Code states that discipline against a shop steward should not be instituted before the employer has first consulted with the trade union.
It is thus clear that the law sees shop stewards in a different light to other employees. The question is how differently must we treat shop stewards? In Dunn vs Telkom SA (2003, 11 BALR 261) a shop steward was dismissed for insubordination. The CCMA found that the shop steward had justifiably been found guilty of serious misconduct meriting dismissal. However, the arbitrator found the dismissal to be unfair because the employer had not consulted the applicant’s union before disciplining the shop steward.
However, in an unreported CCMA case, in which the author was involved, the chief shop steward was dismissed for misconduct related to his duties as a shop steward. Despite this the CCMA found that the dismissal was fair in all respects. This was because the employer was able to convince the CCMA arbitrator that the shop steward’s status as a union representative did not exempt him from adhering to the employer’s rules. [NUMSA obo Mahlangu vs Hernic Ferrochrome (Pty) Ltd case number NW2126-01]
Because the dividing line between acceptable and unacceptable discipline of shop stewards is so thin no employer should implement such discipline without the full involvement of a reputable labour law expert. The power of unionisation in South Africa combined with our pro-union legislation means that employers need to be very careful how they treat shop stewards and other employees and should never underestimate the resolve and resources of trade unions.
By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]. This article first appeared in The Star.
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