A trade union employee cannot be an Officer of the trade union s/he works for-part 2

Correspondent | Monday May 9, 2016 15:20

In this part we look at the employment relationship, Good governance principles and the ‘Jack Tlhagale’ case. Lastly, we suggest a way forward for trade unions faced with this problem.

 

The Employment Relationship

The nature of employee/employer relationship does not support the notion that a union employee could hold union political office.

However, it is important that we first define the employment relationship – a relationship of two parties, employer on one side and an employee on the other. The two parties enter into an employment contract. The TUEOA, TDA and the Employment Act (AE) all define the parties to an employment relationship:

“employee” means any person who has entered into a contract of employment for the hire of his labour;

“employer” means any person who has entered into a contract of employment to hire the labour of any other person;

In both definitions there are exceptions only in relation to disciplined forces.

The Courts have developed a test for whether there is an employment relationship between parties if a dispute exists. The most common test is the dominant impression test which comprises the following among others:

Supervision by the employer

Ability to be disciplined by the employer

Employer providing the tools for trade

Work schedule under employer control

There is no doubt that where union members become employed by their trade unions they test positively when this test is applied.

 Key to these elements is that they are remunerated by the union, their working time is controlled by the union, they are supervised by the union and they can be disciplined by the union. They are therefore union employees and thus barred from union membership.

There is only an exception where a union Officer is seconded by the employer to do trade union duties on fulltime. Under this arrangement, the union officer remains an employee of the substantive employer e.g. a government department or private company.

He/she continues to be remunerated by the employer and is subjected to some of the conditions of his/her employment except for those that go with the secondment such as union hours of work. This is usually a temporary arrangement that comes to an end after a few months or years.

A trade union employee who becomes an Officer of the trade union would therefore play two conflicting roles, of being an employee and an employer at the same time.

As a member of the union Executive Committee s/he would be vested with the responsibility and delegated powers to run the affairs of the union and make decisions on behalf of members who are the substantive owners of the union.

Not being a member and ineligible to be elected s/he would not be clothed with the delegated union congress mandate to run the affairs of the union, hence his/her holding office would be fraudulent.

There are basically two types of union employees: those occupying non-political positions and those holding elected political office. Both may be hired through one of the following ways;

An employee hired from outside the union through conventional means, e.g. advertising, applications, interviews etc;

A union member identified by the union and a resolution taken to hire him/her into a non-political position, usually on a fixed term contract;

Converting a part-time elected volunteer positions into full-time paid officer, where either the union amends its constitution/rules or silently absorbs an elected Executive committee member; also when the union absorbs an elected Executive member who has been dismissed by the employer for trade union work;

An elected union Executive member on sabbatical or unpaid leave who takes up a union position either as a normal employee or as full-time official;

 

An Executive Officer temporarily seconded, but paid in full by the substantive (industry) employer.

In all these scenarios the overriding factor is whether their hiring by the union satisfies the four tests for the existence of an employer/employee relationship. Whenever an employment relationship exists it disqualifies the union employee from holding political office.

As stated above secondment is the only clearly legitimate way of engaging full-time union officials.

A situation of union employees holding office is effectively a scenario of servants in control of their masters. Being on the side of the employer would also mean that s/he exercises control over other fellow employees of the union, during the time that s/he holds union office.

Gadzani Mhotsha