BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting.

Before a trade union can legally force the employer to recognise shop stewards as worker representatives the trade union first has to:

1. Gain official recognition itself from the employer; and

2. Show that the trade union on its own (or together with other trade unions) has as members the majority of the employees at the workplace; and

3. Have, at the workplace, at least ten trade union members on its own or jointly with other unions.

The employer that recognises a trade union and shop stewards has to pay normal wages to the employees elected as shop stewards. When the worker puts aside his duties as an employee and carries out his/her shop steward duties the employer must still, in most cases, pay him/her!

It is therefore vital for the employer to enter into an agreement with the union before recognising the union and the shop steward so as to control the activities of the union and of the shop stewards. Without such an agreement the shop stewards might act beyond their authority and squander valuable production time. The employer should therefore:

· Refuse recognition of the shop steward until a properly drafted union recognition agreement has been signed

· Impose, via the recognition agreement, strict controls on the activities of the shop steward

· Make the shop steward fully aware of the consequences of breach of the terms of the recognition agreement and of the employer’s code of conduct

· Take swift yet legally correct action where shop stewards flout the rules

· Join a reputable employers’ organisation such as the GDPEO in order to gain access to expert legal advice and representation.

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Author may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: labourlaw@absamail.co.za. Web address: www.labourlawadvice.co.za.

To attend our May 2010 seminars in JHB and Cape Town on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.

By Ivan Israelstam

While arbitrators have repeatedly faulted employers for procedural unfairness at disciplinary hearings certain employers still maintain that there is no need for a formal hearing. Part of the reason for this misconception is the wording of Schedule 8 of the Labour Relations Act which states that the hearing need not be a formal one. However, the same item requires that the employee be allowed the opportunity to state a case in response to the allegations. The courts have frequently interpreted the latter requirement to mean that the accused employee must be given the right to an unbiased chairperson, to testify, to bring documents, call witnesses and cross examine evidence brought against him/her.

Thus, in order to be able to comply with this the employer needs to set up a formal hearing, the record of which becomes part of the evidence at the CCMA. Because it is at the CCMA where the employer will be required to prove that it complied with legal procedure when dismissing the employee.

Furthermore, where an employee is suspected of poor performance it is not enough to have an informal discussion with the employee about the problem and then to fire him/her the next week. The LRA sets down specific steps to be followed before a dismissal for poor performance can even be considered.

Again it is not practical to comply properly with such stringent requirements in an informal manner because informal processes are difficult to control and to prove.

Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings.

To attend our seminars on CHANGES AND DANGERS IN LABOUR LAW on 12 March 2010 (JHB) and 14 May 2010 (Cape Town) please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.

Business seminar- Changes and Dangers in Labour Law – presented by Ivan Israelstam.

Date: 12 March 2010

Where: Johannesburg

Presenter: lvan lsraelstam, CEO of Labour Law Management Consulting.

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