Thanks cde Matela, I noted your point, it's unfortunate that this wasn't forthright but accept my humble apologies. Back to the issue you raised: "what should COSATU unions do with managers of public institutions who when confronted with difficult situation choose to approach hire structures of unions and request that Cdes be dealt with." Please be advised that the chapter 4 of Nehawu Constitution deals with workplaces and section 16 makes reference of Shop Stewards Committee whose role is prescribed in subsection 4. It states that: The shop stewards committee must meet at least every 14 days and is responsible to: (a) conduct the affairs of the union in relation to members at that workplace; (b) receive and attend to complaints affecting members concerning their employment and, where necessary, report such complaints to the BEC or the REC; (c) report any improper employment practice or any matter within the jurisdiction of a shop steward in terms of any legislation to the BEC or the REC; and (d) defend the individual and collective interests of the membership at the workplace. It's against this background that "SARS had no reason to dictate to NEHAWU on who should represent its members in disciplinary hearings" because NEHAWU is a corporate body having perpetual succession, legal existence, and all the legal powers of a juristic person to protect the job security of members, to advance their employment prospects, and to serve their individual and collective interests. I submit therefore that the conduct of SARS management does not only violate ethos of sound labour relations through collective bargaining but undermine core values of the LRA and NEHAWU as a trade union recognised in the Act. As such, I charge such managers as reactionary and out of order. And this situation warrants an action by the shop stewards committee or escalate the matter to the BEC or the REC for the purpose of soliciting political advice and assistance in this regard. Remain Morgan Phaahla
"Sometimes, if you wear suits for too long, it changes your ideology." - Joe Slovo --- On Thu, 8/11/11, Matela Mthwalo <[email protected]> wrote: From: Matela Mthwalo <[email protected]> Subject: Re: [YCLSA Discussion] Re: [CU] What should we do with SARS' actions? To: "morgan phaahla" <[email protected]> Cc: [email protected], "Oupa G. Magashula" <[email protected]>, "Million Mbatha" <[email protected]> Date: Thursday, August 11, 2011, 5:57 AM Cde Morgan, Comrade please understand reason behind this discussion, this was neither to look for support nor to ask comrades to takes sides, since there are no sides on this matter. The question was and remain, what should COSATU unions do with managers of public institutions who when confronted with difficult situation choose to approach hire structures of unions and request that Cdes be dealt with? Like in the case of SARS which chose to approach Provincial structure on an issue which was between NEHAWU and its own members, SARS had no reason to dictate to NEHAWU on who should represent its members in disciplinary hearings, that remain my point of view, I was looking for dicsussion on this matter. Lets engage! Regards, Matela Mthwalo On Thu, Aug 11, 2011 at 10:48 AM, morgan phaahla <[email protected]> wrote: Dear cde Matela, May I propose that all exchanges relating to this matter be treated as confidential, between yourselves and Nehawu leadership - under whose jurisdiction this matter falls. It will not help for all of you to forward such correspondence to the forum for the purpose of soliciting support for us to take a particular side, or to outsiders who are not necessarily privy to the internal workings of Nehawu. Bear in mind that the subscription to this forum is open to all, including journalists and agents provocateurs. As such, it's important to ensure that the integrity of our cadres is respected and protected at all times, and never drag their names to shame. My humble appeal is for comrades to use appropriate Nehawu structures to resolve this issue or escalate it to the upper body, if the situation dictates. Once the leadership has processed it and provided a shared and workable resolution to the dispute in question, then comrades shall be at liberty to share any information with all and sundry. I trust you will find this in order. Communist regards Morgan Phaahla "Sometimes, if you wear suits for too long, it changes your ideology." - Joe Slovo --- On Wed, 8/10/11, Matela Mthwalo <[email protected]> wrote: From: Matela Mthwalo <[email protected]> Subject: [YCLSA Discussion] Re: [CU] What should we do with SARS' actions? To: [email protected] Cc: [email protected], "Oupa G. Magashula" <[email protected]>, "Million Mbatha" <[email protected]> Date: Wednesday, August 10, 2011, 5:39 AM Cdes, When we represent the interests of our members public instotutions like SARS approach our union leaders and request that we be dealt with, here is one of those moronic actions of SARS..... read for yourself. What should I do? Matela From: Pule Motingoa ([email protected]) [mailto:[email protected]] Sent: 04 August 2011 12:24 PM To: [email protected] Subject: FW: Representation Please find the email below From: Million Mbatha [mailto:[email protected]] Sent: Thursday, January 21, 2010 9:51 AM To: Pule Motingoa ([email protected]) Subject: FW: Representation Dear Comrade Pule As per our discussions in the short meeting of the 19 January 2010, herewith find some detailed correspondence from Mr Matela. Since his resignation from SARS in February 2009, Mr. Matela has been in constant contact with SARS and communicates directly with the Commissioner of SARS on trivial issues. It is not our intention to prevent him from raising critical issues that the Commissioner of SARS may not be aware of, however raising issues of representation in disciplinary issues with the Commissioner does not only undermine the employee relations division in SARS but seek to undermine the relationship that Employee Relations had built over time with the unions. It is not our intention to prevent him from representing any members of NEHAWU; however such representation is limited to co-workers, shop stewards and union officials. Mr Matela argues that as a member of NEHAWU and therefore entitled to be involved in disciplinary and any matters affecting NEHAWU members at SARS, particularly his interest in the Klerksdorp Office. We would appreciate your assistance in this regard by clarifying whether or not Mr. Matela has been appointed as an official of the Union. I am available to discuss this matter should the need arises. Sincerely Million Mbatha Regional Employee Relations Manager MP,FS,NW,LMP Tel No 012 422 5389 Cell 079 891 9227 Fax 0861618013 email:[email protected] From: Matela Mthwalo [mailto:[email protected]] Sent: 18 January 2010 07:49 PM To: Bizoski Manyike Cc: Sam Shokane; Visit Gumede; Chris Sithole; Oupa G. Magashula ; Noleen Tagaree; Million Mbatha; Jabulani J Malobola Subject: Re: Representation Hi, My Chief Thanks for clearing the air, I actually knew that SARS' argument that I can't represent Noleen is just full of air and it needed someone to relief it! You know had I said it, some people would have felt that I am actually demeaning them, but as you can see the line of argument that was persued by the institution is going to burst anytime 'cause it is just full of air! Yours In Comradeship Matela Mthwalo On Mon, Jan 18, 2010 at 1:19 AM, Bizoski Manyike <[email protected]> wrote: Heartfelt compliments to all, Without further ado, the accusation levelled against the drafters of the policies referred by Cde Matela is regrettable, yet forgivable! Why? There will always be different interpretation of clauses depending not on the level of education, but premise that the author anchors his/her basis. The question of what seem in 'conflict' instead of confusion amongst the policies is usage of words to mean same thing. Nonetheless, Cde Matela is correct beyond reproach in respect of being afforded an opportunity to represent a member as per below referred policies. The meaning of 'union representative' as contained in the SARS policies, namely, Disciplinary Code & Procedure; Grievance Code; Recognition Agreement; NBF Constitution; Incapacity Policy and others, is deliberately inclusively. A union rep will include any individual of good standing within the union who is nominated (not necessarily democratically elected leadership) by a member of the similar union for the purpose of representation. However, the union should firstly be alerted and consulted of such nomination to cater for any eventually that may arise (vicarious liability). The employer will have no say on whether or not to approach such nomination. Shop steward (sic), office bearer and official are equally union representatives in their own right, including a cleaner in the union office. Suffice to indicate that such tasks to represent should be mandate driven! No where, in the above listed policies exclude a member of Cde Matela's calibre on the basis ‘of being not an employee of the employer (SARS)’ to represent any member of Nehawu in any institution where the later legally organises. In conclusion, it would augur well to with contention of excluding Cde Matela from representation only on the basis of his 'good standing' within the union being justly questionable. As much as divorced couple cannot be expected to have rights and duties assigned to married couple in relating to each other after the divorce. Similarly, since Nehawu has never disowned Cde Matela, he cannot be barred from servicing membership, whenever necessity demands, as current! We plea that we cease throwing missile and permit justice to take its full course for a higher cause!! You're ever well-wisher and servant's servant Bizoski Manyike NEHAWU Gauteng Representative Cherry Lane - Kopano Projects Brooklyn Tel (012) 452 4777 Fax 0866991951 Cell 082 926 5767 E-Mail [email protected] -----Original Message----- From: Matela Mthwalo [mailto:[email protected]] Sent: 18 January 2010 08:02 AM To: Sam Shokane Cc: Bizoski Manyike; Visit Gumede; Chris Sithole; Oupa G. Magashula ; Noleen Tagaree; Million Mbatha; Jabulani J Malobola Subject: Representation Mr. Shokane, (HR Consultant) We argued the whole of last week but we never arrived at point where we can actually agree that my argument is just full air. I just want us to revisit some of your arguments. I’d start with Collective Agreements and finish with LRA because you kept on repeating that I must go and “read” collective agreements. Let me indicate that the Collective Agreements which you base your arguments on in no way do they say I have no right to represent Noleen. I want us to go through the Collective Agreement on Recognition. Please open the Collective Agreement and go to page 6 of 18 and check point number 7; Representation. Clause 7.2 says I quote, “SARS accepts that any member of the Union may be represented by a trade union representative if he/ she choose, on any matter including SARS Grievance and Disciplinary Codes and Procedures”. Now this agreement does not say the representative within SARS or that SARS deem fit, it leaves the choice to the member. A member has the right to choose to be represented by “any member, office bearer or official of the party’s registered trade union”; LRA says that not SARS. Let us remember that your Collective Agreement in no way says an office bearer of the Union as voted by members, it says representative. A representative is someone who represents another regardless of their position within the Union, as the Labour Law stipulates that “any member, trade union official or office bearer”. Your Collective Agreements seem to have different meanings for the following words; trade union representative and union representative. In your Collective Agreement you define these two words differently, are they really different? SARS’ Collective Agreement on Incapacity Code and Procedure defines trade union representative as “an employee elected by the employees to represent the union and its members in the workplace” Your Collective Agreement on Grievance Code and Procedure defines union representative as “a shop steward and/or union official of the recognized trade union. This definition differs from the first one. It differs because the words used to define these words are themselves defined differently in your Collective Agreements, for instance union official and trade union official are defined differently in your Collective Agreements and these are the words that are used to define trade union representative and union representative. Your Collective Agreement on Grievance Code and Procedure defines the word union official as “a full time employee and/or office bearer of the Union who is nominated in terms of its Constitution. Your Collective Agreement on Incapacity Code and Procedure defines trade union official as “a person employed by the union”. What your definitions say is that a receptionist or floor sweeper at Union offices is the representative of members; don’t you find these definitions a bit drunk? And which one is valid? In one of the emails you indicated that the Law (LRA) stipulates “very clear that we should have collective agreements as to drive the agenda of labour peace”. I agree, but don’t you think your definitions as contained in Collective Agreements sow confusion which is likely to result in conflicts, and your good intentions might be compromised? And I don’t believe that SARS can, in all fairness, bind us to confusion unless if the institution believes that it cannot be questioned. And to quote African Communist Journal (Third Quarter Journal of South African Communist Party in 1994) when it referred to the attitude of the then governor of Reserve Bank, Chris Stols, and the institution, it said “clearly we are dealing here with an incredibly self-righteous institution”. Now chief, it would be immoral and self-righteous to use this confusion in definitions to deny Noleen her freedom to choose who should represent her, when LRA is so clear as to who can represent members at both CCMA and Labour Court, though collective agreement are there for labour peace as you indicated, they are also there to democratize working environment. The Collective Agreements of SARS cannot deviate from general principles as contained and expressed in LRA, any agreement that moves from these general principles renders itself null and void. Now, since I am a member of Union that SARS recognizes, I have every right to represent NEHAWU members. Clause 7.3 of the Collective Agreements says I quote, “SARS reserves the right to recognize any other Union but may not recognize any union if they cannot meet threshold as defined in Clause 1.13 of this agreement”. It does not say SARS reserves the right to recognize union representatives either internal or external. Now where does it say “only those within SARS”. I know your next argument might be “the general practice throughout the industry…blahh ..blaah”. We are not arguing industry norms, we are arguing representation as agreed on Collective Agreements that you are so fond of, whose definitions are so confusing and inconsistent it’s like they were drawn in the wee hours of Saturday morning. And we compare all this confusion with the Law. Now let’s go to page 11 of 19 in Collective Agreement on Grievance Code and Procedure, it says I quote, “ the employee may be represented/ assisted by a fellow employee or Union representative in a grievance hearing”. Again it does not say that this particular representative must come from within SARS, it says a “union representative”. But again I don’t know which definition of representative to follow since you have so many. I guess it refers to those from within and outside SARS. Now, show me in these collective agreements with confusing definitions where is says only NEHAWU members who are employed by SARS have exclusive rights to determine NEHAWU members’ future. Now why did your Collective Agreements leave out the word “Any member” when referring to those who can represent members, was this an oversight on the part of those who drew them or a deliberate omission to centralize and control union activities? Please recognize this word as it is contained in LRA which you so often ask me to study. If SARS changes the provisions of the Law in its agreements with Labour, then you need to tell me which Law is now governing labour relations at SARS. The burden of proof is on you to prove that I can’t represent Noleen; you can raise dispute at CCMA, we will go there to clarify this confusion. One thing that you need to know is that LRA principles and provisions are overriding. Mr Shokane let us meet on the 21 of January 2010 at 09H00 at SARS Klerksdorp, I represent Noleen. Regards, Matela Mthwalo -- Regards, Matela Mthwalo -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] . -- Regards, Matela Mthwalo -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] . -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] .
