The imposition of the Economic Freedom Fighters (EFF) has become a common occurrence in the South African workplace. The Labour Court has, however, already taken a strong stance against the EFF in two reported judgments being that of Calgan Lounge v EFF and Others (2019) 40 ILJ 342 (LC), and Gordon Road Spar v The Economic Freedom Fighters and Others (2021) 42 ILJ 1953 (LC).
Undeterred, leader of the EFF, Julius Malema, publicly broadcasted his intention to visit businesses in the hospitality industry to “inspect labour practices”, including the ratio of foreign nationals to South African workers employed. On 19 January 2022, Malema visited the restaurant ‘Kream’ at the Mall of Africa demanding a meeting with the owner. However, Kream’s representatives refused the meeting on the basis that Malema’s authority to conduct an inspection of the restaurant’s labour practices was not established. Malema responded that he was attending in his capacity as a member of parliament.
Responding to the events of 19 January 2022, the Department of Employment and Labour (DoL) has expressed the view that violence affects labour market stability and labour peace, stating that “One cannot seek to see the enforcement of the law by breaking the law too.” The DoL stressed that non-compliance with labour laws is in the domain of the DoL and relevant bargaining councils which in our view is the correct assessment of the law. Urging any political party or organisation that wishes to raise issues relating to non-compliance with the labour law to do so through the right channels, without violence and intimidation.
In light of these events, a retrospective of the judgments dealing with EFF interference in workplace matters, was necessary. CDH also considered the legitimacy of the EFF’s latest quest from a different perspective, the Protection of Personal Information Act 4 of 2013 (POPI). Essentially, this raised the question, “can a political party demand that an employer disclose the national origin of employees?”
Gordon Road Spar v The Economic Freedom Fighters and Others
In June 2021 the Labour Court in Gordon Road Spar v The Economic Freedom Fighters and Others interdicted the EFF from interfering with the employer’s business and instigating violence at the workplace.
The position of the court was that where unlawful conduct is perpetrated in the name of the party, the EFF is empowered by its constitution to enforce its provisions and act against members, such as protestors who participate in unlawful protest action. In this matter the EFF did not hold its members accountable in accordance with its constitution. The court found that the EFF could not contend in such instance that it existed separately from its members and could not be held liable for their actions. Accordingly, it was found that there was no substance to the argument that the EFF could not be held liable for the conduct of its members who ostensibly acted on their own behalf. Read the detailed discussion on this important case in the 4 October 2021 Employment Law Alert.
Calgan Lounge v EFF and Others
In this matter, the court stated that the Labour Relations Act 66 of 1995 (LRA) designated employers’ organisations, trade unions and workplace forums to resolve workplace issues. The EFF however was not a registered trade union and therefore had no standing to deal with the workplace disputes of its members. Orderly collective bargaining and dispute resolution are pivotal objectives of the LRA, after all.
The position of the Labour Court on the interference of the EFF in workplace business was epitomized by the words of the court as follows “the practicing of any form of politics, be it under the guise of protecting employee rights or other socio-economic aspirations, in the workplace, is an untenable proposition.” This is discussed at length in the 12 November 2018 Employment Law Alert.
The legal principles developed in these cases would apply where the EFF carry out “labour inspections”. They simply have no authority.
It is only the DoL that has the authority to carry out labour inspections through its labour inspectorate appointed in terms of section 63 and 64 of the Basic Conditions of Employment Act 75 of 1997. Without the necessary authority, citizens cannot purport to have any right to carry out these functions, even if they are high ranking political members or even members of parliament. The EFF have tested another boundary in the labour arena.
The circumstances of 19 January 2022 also speak to an employer’s obligations to safeguard employees’ personal information in terms of POPI.
Is an employee’s national origin protected personal information?
In terms of POPI, personal information includes the national origin of a data subject, being the employee. This information, together with an array of other personal information that would be shared during a labour inspection is therefore subject to the protections afforded under the act, justifiably protecting employees’ privacy in circumstances where the basis for sharing such information is not established in law.
POPI requires employers to have a lawful basis for processing personal information, which extends to sharing such information with a third party. Grounds to process personal information may arise (1) in terms of an obligation imposed by law, (2) for the performance of a contract, (3) in performance of a public law duty by a public body, (4) in the legitimate interest of the subject or the third party, or (5) by the consent of the subject.
The EFF are not appointed labour inspectors by the DoL and thus cannot contend that an employer has an obligation in law to share the personal information of its employees. If the employees do not consent to their information being shared for the purpose of the EFF conducting a census of foreign nationals employed in the hospitality industry or any other reason, there are no legal grounds for the employer to share the personal information of its employees with the EFF, and to do so would be in breach of POPI.
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Read the original publication at Cliffe Dekker Hofmeyr