The collective bargaining process requires time, effort and money from unions – in the form of subscriptions, in order to effectively engage and bargain with employers. The employer’s contribution towards the collective bargaining process is to facilitate and manage the collection and payments of trade union fees, thus financially affording the union the funds they require to fulfil their functions.
Section 13 of the Labour Relations Act (“LRA”) lays down the procedure which must be followed for making the deductions and remitting the money deducted to the trade union.
Section 13 of the Labour Relations Act states as follows: –
1. “Any employee who is a member of a representative trade union may authorise the employer in writing to deduct subscriptions or levies payable to that trade union from the employee’s wages.
2. An employer who receives authorisation in terms of subsection (1) must begin making the authorised deduction as soon as possible and must remit the amount deducted to the representative trade union by not later than the 15th day of the month first following the date each deduction was made.
3. An employee may revoke an authorisation given in terms of subsection (1) by giving the employer and the representative trade union one month’s written notice or, if the employee works in the public service, three months’ written notice.
4. An employer who receives a notice in terms of subsection (3) must continue to make the authorised deduction until the notice period has expired and then must stop making the deduction.
5. With each monthly remittance, the employer must give the representative trade union-
a) a list of the names of every member from whose wages the employer has made the deductions that are included in the remittance;
b) details of the amounts deducted and remitted and the period to which the deductions relate; and
c) a copy of every notice of revocation in terms of subsection (3).”
If a trade union can prove that its members at the workplace represent the majority of all the employees employed at the workplace or becomes merely “sufficiently” representative, it will be entitled to the right to the deduction and pay over of union subscriptions in terms of s13 of the LRA.
An employee who is a potential union member becomes a fully-fledged member in good standing only after the employer has started deducting trade union levies or subscriptions in respect of that member. In other words, it is only once the money starts flowing to the union by means of a stop order facility that the member becomes a full member of the union.
Where a union fails to confirm proof of membership and level of representation, an employer can refuse to deduct union subscriptions from its members. This was shown in the case of National Union of Mineworkers v Paintrite Contractors CC (2008) 29 ILJ 806 (CCMA), whereby the employer successfully defended its case on the grounds of the union failing to provide proof of membership and level of representativeness.
An unregistered trade union may not, as a matter of right, claim any of the organisational rights provided for in terms of the LRA; notably in terms of s13. This, however, does not prohibit an employee from joining such a union, as Section 23(2) makes provision for employees’ right to form and join a union of their choice. How and when the union fees are paid to such an un-registered union is between the union and the employee themselves. There is no duty on the employer to follow up as to whether union fees have been paid or are up to date, as such union will not be able to claim any organisational rights.
What must further be taken into consideration is that union subscriptions add an administrative burden and cost to the employer. This can be cured by an administration fee being charged by the employer. Employers must, however, be cautious not to unilaterally impose an administration fee but rather make provision for the fee in the collective agreement between the parties.
In the case of United Association of South Africa obo Members v Franklin Farming (Pty) Ltd t/a Franklin Sawmill 2019 2 BALR 222 (CCMA), the issue in dispute was whether it was fair for the employer to levy a 10% administration fee for the account of the union, for deducting union subscription fees from the salaries of union members. The employer argued that “it cost the company approximately R2 500 per month to process the payroll deductions” and that “as they were experiencing financial difficulties, it could not afford to render a free service to the union.” Finding that neither the agreement between the parties nor the provisions of the LRA make provision for an administration fee to be set off against the deductions, the CCMA ruled that the employer is not entitled to levy an administration fee.
From the above, there is a clear onus on an employer to deduct union subscriptions when authorised. Failure of which may result in employees/unions seeking recourse at the bargaining council or CCMA.
Article by: Nagarsen Naicker
Dispute Resolution Official – Pretoria