TRADE UNION SUBSCRIPTIONS AND MEMBERSHIP Upon due recognition of a union by an employer, in terms of Section 42 of the Industrial Relations Act, 2000 (as amended and hereinafter called the IRA), as a bargaining partner and representative of its employees, the union acquires certain rights and corresponding duties in relation to the employer. Some of these rights include the right to the collection of union dues. Employees who are members of the union may in writing authorize the employer to deduct from their salaries, their subscriptions due to the union. These written authorizations are usually called stop-order forms and in practice they double as union membership forms. Subject to the verification of the authenticity of the documents, the employer is obliged upon receipt of these stop-order forms from the union, to immediately deduct from the salaries of the union members in question, the specified union fees and to promptly remit the collected amounts to the union, monthly. For its trouble, the employer is allowed to retain a collection fee of not more than 5% of the total amount collected (Section 43 of the IRA). Questions that normally arise in relation to union dues, include whether an employer is obliged to adhere to a stop-order form for the deduction of subscriptions for a union which has not been recognised by the employer. A reading of Section 43(1) of the IRA, reveals that the employer is not obliged to make the deductions. The employee must tender his subscription to the union himself. In practice, unrecognised unions are normally apprehensive of remitting the stop-order forms to employers prior to talks for the recognition of the union, for fear of victimisation of their members by employers. They usually are more comfortable in handing the forms to the employer in conciliation proceedings for recognition of the union at CMAC. This unfortunate position is entrenched by Section 26 of the Code of Good Practice published in terms of Section 109 of the IRA, which postulates that, in replying to an application for recognition, management is entitled to know how many employees in the undertaking are union members but not their identities. It should be stated that any acts of victimisation against employees for their union membership are prohibited inter alia, by Section 100 of the IRA. Such acts include threatening to or imposing any discipline or disadvantage to an employee who participates in union activities or promising such an employee a benefit for their non-participation in union activities. Another question that normally arises in relation to union subscriptions is, what is the liability of an employer who refuses or neglects to deduct a recognised union’s subscriptions, as per its members’ stop-order forms? It is not uncommon to find an employer failing to effect the subscription deductions despite having received the stop-order forms. Section 43(10) of the IRA, provides that any party affected by a non-compliance to the provisions on union subscriptions must make its complaint to the court. An incidental question is who between the employer and the union members are supposed to pay the arrear subscriptions following the employer’s failure to make the deductions? The unions usually argue that the employer must be punished for its failure to effect the deductions by being made to pay the arrear subscriptions, whereas the employer argues that, since the subscriptions come from the members’ salaries, if an employee notices that no subscriptions deduction has been made to his salary, it is the employee’s duty to pay the subscription to the union. In the arbitration proceedings for union recognition, SCAWU v Judy’s Pride t/a Fashion World SWMZ 56/08, the arbitrator opined that, “unless a trade union’s constitution provides otherwise, an employee should not wait until stop-order forms are effected by an employer before paying the requisite membership fees to his organization. The obligation is placed on the member to pay the required fees.” WRITTEN BY: COMMISSIONER NSINDISO THWALA.
Posted on: Thu, 03 Oct 2013 07:11:24 +0000
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