Author: Sheila Moagi– Associate Designate
*Supervised by: Gugulethu Mthalane – Director & Head of Employment
Recently, a certain political party took the unprecedented step of conducting restaurant visits in pursuit of inspecting employee lists to determine the ratio between foreign born and local employees, and to ensure that locals were prioritised, and that fellow Africans got a fair share of employment. But do political parties have locus standi in the workplace?
The Calgan Lounge judgment
In Calgan Lounge (Pty) Ltd v National Union of Furniture and Allied Workers Union of South Africa (NUFUWSA) and Others, one of the issues the court had to determine was whether the conduct of members of the Economic Freedom Fighters (EFF) in involving themselves in workplace-related issues was lawful.
In this case, the EFF had purported to represent Calgan’s employees and had made various demands on their behalf. When the demands were not acceded to, the EFF called for a work stoppage, which gave rise to a protest march and resulted in damage to property and intimidation of other employees and members of the public.
In considering the EFF’s involvement in the matter, the court held:
“…the EFF… is not a registered trade union. There is no place in this structure for the involvement of political parties. In fact, it is my view that the practicing of any form of politics, be it under the guise of protecting employee rights or other socio-economic aspirations, in the workplace, is an untenable proposition. The workplace should be free from these kind of influences”.
The court further held that the EFF’s argument, that the Constitution entitled it to conduct itself as it did, was flawed, as direct reliance on the Constitution was not permissible where there was specific statute regulating a constitutional right; in this case the Labour Relations Act, the Basic Conditions of Employment, and the like.
By assuming a role that is reserved for trade unions under the Labour Relations Act 66 of 1995 (LRA), the EFF was in effect bypassing all the legislative provisions that trade unions must comply with. For the party to be acting like a trade union, the court stated, could not be what the legislature had intended when seeking to regulate the rights under section 23 of the Constitution by way of the LRA.
The court went further to hold that:
“What the EFF did in this case was to undermine orderly collective bargaining and dispute resolution, which is the cornerstone of the LRA”.
Not only do political parties not have the authority to get involved in workplace issues, but by demanding proof of employment particulars, such as employee lists with ID or passport numbers, they were in direct contravention of the Protection of Personal Information Act 4 of 2013 (POPIA).
POPIA, was enacted to give effect to the constitutional right of privacy, by safeguarding personal information when processed by a responsible party. By personal information, POPIA refers to, among others, information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including but not limited to information relating to race, gender, national ethnic or social origin and any identifying number.
Political parties who demand personal information of employees from their employers, and employers who hand over such personal information, are in direct contravention of POPIA. POPIA requires that personal information be safeguarded and only disclosed under strict conditions, provided for in the act. No political party has a legitimate or lawful reason to request such information. Political parties are not to involve themselves in an arena they do not belong in.
Moreover, employers who provide such personal information to political parties or any other third party without the required consent are opening themselves up to potential investigation or fines by the Information Regulator, should those employees whose personal information was shared choose to lodge complaints with the Regulator.
Conclusion
It is trite law that issues relating to the workplace are designated to employers’ organisations, trade unions and workplace forums. The fundamental right of fair labour practice is enshrined in the Constitution and is given effect by the Labour Relations Act, among others. The Calgan Lounge judgment should be a constant reminder to political parties not to concern themselves with workplace-related matters that have a bearing on the employment relationship. In law, employers are not obliged to consult or negotiate with them.
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