10 May

10 May 2024

Freedom of association is a fundamental right, and it is protected under sections 18 and 23 of the Constitution. This protection is extended by section 4 of the LRA— stating that employees have the right to form, join, and participate in the lawful activities of a trade union. The LRA protects employees from dismissal and victimisation because of their trade union activities.

The essence of the LRA’s protection of freedom of association is that the employer may not victimise or prejudice an employee for exercising the fundamental right to freedom of association.  If there has been a dismissal, as defined in section 186, and the reason for the dismissal was victimisation for trade union membership or activity, the dismissal will be automatically unfair. If you choose to join UASA, be aware that your employer, other unions, associations, or guilds do not have a right to intimidate or oppose your choice of association.

Rights of Trade Union Members

Section 4 does not only protect the right to join and form a Union.  It also grants members of a union the right to participate in the union’s affairs; an employee has the rights to:

  • Participate in (the Unions/lawful activities);
  • Participate in the election of any of (the Union office bearers or trade union representatives;
  • Stand for election and be eligible for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in terms of the LRA or any collective agreement.

Protection of Freedom of Association

Section 5 of the LRA prohibits a wide range of actions that infringe on the right to freedom of association contained in section 4. In terms of section 5(1) of the LRA:

  • “No person may discriminate against an employee for exercising any right conferred by this Act.”

This prohibition is stated in fairly broad terms; examples of actions that would typically fall within the scope of section 5(1) include:

  • An employer dismissing an employee for failing to give the employee a discretionary annual bonus because the employee has joined a trade union,
  • An employer refusing to grant a merit increase to an employee or an employer failing to promote an employee because, for example, the employee has been elected as a trade union representative (shop steward) or has been elected chairman of the union or shop steward’s committee.
  • An employer is resorting to harassment against an employee because the employee has been elected as a trade union representative, for example, by subjecting the employee to unfounded disciplinary charges.

A dismissal will be automatically unfair if an employer dismisses an employee and the reason for the dismissal is related to the employee’s trade union membership, or activities.

 

Ref: www.uasa.org.za

 

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