Although the lockdown had suspended numerous rights and obligations which flow from the employment relationship, there are certain anomalies that exist, where a right or corresponding obligation may continue to operate notwithstanding the lockdown. This article addresses the question of whether the employer is required to continue making trade-union deductions from any monies the employee receives during the lockdown
It is a well-established principle that trade-union deductions or levies are deducted from the member’s salary or wage by his employer and paid directly to the union. It is a fundamental right enjoyed by unions and flows either directly from Legislation, in the Labour Relations Act(LRA) or from a collective agreement concluded between the employer and representative union.
In terms of section 13 (1) of the LRA, 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. It, therefore, follows that should the employee not earn wages for a period of time the employer is not required to deduct trade union levies.
The definition of remuneration, as contained in the LRA, has relevance in understanding the issue. “Remuneration means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the state, and “remunerate” has a corresponding meaning.” As wages fall within the scope of remuneration, it thus follows that the trade union deduction can only be made from money paid by an employer, to an employee for work actually done and not from other payments received by the employee, for example, UIF payments or ex gratia payments made by the employer to his employees.
We will consider various circumstances which will determine whether union fees should be deducted or not:
In terms of section 23 of the Basic Conditions of Employment Act, an employer must pay an employee for sick leave, the wage the employee would ordinarily have received for work on that day.
As the employee is still earning his or her full remuneration, the full union deduction can still be made from the employee’s salary or wage.
Should the employer compel the employee to take annual leave during the period of lockdown, the union deduction should be deducted.
EMPLOYEES WORKING FROM HOME
In cases where employees can work from home and are being paid remuneration, trade union deductions should be may during this period.
As a result of this pandemic, employers and employees can agree or negotiate that the employees work for a reduced salary or short time in order to prevent lay-offs. Under these circumstances, trade union deduction should be made, the quantum of the deductions will be discussed below.
PART OF THE WORKFORCE IS STILL FULLY EMPLOYED WHILST A PORTION THEREOF IS ON TERS OR UIF IN TERMS OF THE COVID 19 REGULATIONS.
In such a scenario the portion of the workforce who is receiving remuneration, union deductions should be made, however, the rest of the workforce that is not being remunerated, including those receiving UIF payments, will not be subjected to union deductions.
HOW MUCH SHOULD BE DEDUCTED
If union deductions are done in terms of the abovementioned guidelines, the amount of the deductions should be done in terms of the stop order instruction and may or may not be affected by variations in remuneration received.
Should the union levies be a set amount, that amount should be deducted. Should the amount be a % of the remuneration received, the deduction should be calculated on the reduced amount of remuneration.
Should a dispute arise between the employer and the union, affected by the reduction in union fees collected, CEO will assist our members in the resolution of such disputes.
Article by: Nandi Basson
Dispute Resolution Official – Pretoria