right to association

The right to association: A case for labor unions.

The issue of employment has been widely discussed by scholars and workers’ rights activists, respectively, even our writers. When a client walked into my office this week, she inquired about her rights and what she expected from her new employer but was equally astonished to hear me educate her about her obligations as well as her right to association under a Labor Union Federation.

‘Have you signed a contract?’

‘Not yet.’

‘Do you know how much your employer will pay you?’

‘Of course, I do’, she laughed heartily.

‘Counsel, I know my job description very well’, she insisted. ‘No need to know my boss’ rights, don’t you think?’

‘I disagree.’

‘I’m the one paying for your legal advice’, she humorously commented. ‘Besides, it is the government employing me; I will have lots of freedom. Public service is easy to work with.’

‘Better know the details before you take any disagreement to the Industrial Court’, I continued. ‘What if you join a labor union, get involved in a picket and get reprimanded for it, do you know what will happen?’

‘And what is that for, now, huh?’

‘Do you know you will be entitled to maternity leave soon?’ I ask, looking at her protruding tummy. She compresses her face. ‘And what if they refuse to give you paid leave?’

‘Stop complicating things, counsel, her tone quivers.

‘You should also know what rights you have should you choose to join one in the future.’

‘OK, counsel’, she resigns. ‘You win. Tell me.’

Application of the law on labor unions

This law applies to employment relations between an employee and employer. The laws here under include the Constitution of Uganda, 2000 revised edition; the Employment Act, 2006; the Labor Unions Act, 2006; the Labor Disputes (Arbitration & Settlement) Act, 2006; and other regulatory provisions.

Who is an employee?

Section 2 of the Employment Act, 2006 defines an ‘employee’ to mean ‘…any person who has entered into a contract of service or an apprenticeship contract, including, without limitation, any person who is employed by or for the Government of Uganda, including the Uganda Public Service, a local authority or a parastatal organization but excludes a member of the Uganda People’s Defense Forces.

Who is an employer?

Section 2 also defines an ‘employer’ to mean  ‘…any person or group of persons, including a company or corporation, a public, regional or local authority, a governing body of an unincorporated association, a partnership, parastatal organization or other institution or organization whatsoever, for whom an employee works or has worked, or normally worked or sought to work, under a contract of service, and includes the heirs, successors, assignees and, transferors of any person or group of persons for whom an employee works, has worked, or normally works.’

What is the law on labor unions?

Section 2 of the Labor Unions Act, 2006 defines Labor unions to mean ‘any organization of employees created by employees for representing the rights and interests of employees and includes a registered labor union in existence at the commencement of this Act.”

Membership of a labor union is optional and is by employees as per Art.29 & 40 of the Constitution; S.3 of the Labor Unions Act, 2006; S.3, S.38-39 of the Labor Disputes (Arbitration & Settlement) Act, 2006. The Constitution of Uganda provides for the right of association wherein a labor union is one of the federations an employee can associate himself/herself with.

Art.29 provides for Protection of freedom of conscience, expression, movement, religion, assembly and association

Every person shall have the right to –

(b) freedom of thought, conscience and belief…’

(e) freedom of association which shall include the freedom to form and join associations or unions, including trade unions and political and other civic organizations…’

Also, article 40 provides for economic rights of a citizen where it states that:

‘…

(2) Every person in Uganda has the right to practice his or her profession and to carry on any lawful occupation, trade or business.

(3) Every worker has a right –

(a) To form or join a trade union of his or her choice for the promotion and protection of his or her economic and social interests;

(b) To collective bargaining and representation; and

(c)To withdraw his or her labor according to law.’

Is membership paid for? How are the contributions used, if any?

Membership is paid for by the employee through his/her employer. The employee wishing to join a labor union will have to write to his/her employer to remit deductions to the labor union where he/she has membership.

The contributions are used by the labor union to facilitate the activities of the Labor Union on behalf of the members at workplaces and elsewhere, as required.

Role of employers on Labor Unions

The law dictates that employers must not deter or interfere in their employees from joining and supporting the activities of their labor unions as long such activities do not interfere with employee work targets. (See S.4 of the Labor Unions Act, 2006).

An employer who does so commits an offense and is liable to a penalty of a fine not exceeding 96 currency points (a currency point is Ushs.20,000/=); or imprisonment for four (4) years; or both. (Section 5 of the Labor Unions Act, 2006)

Employees are expected to participate in labor union activities outside work hours. Their activities may include forming and electing labor union representatives, contributing to collective bargaining agreements with employers (S.38-39 of the Labor Disputes (Arbitration & Settlement) Act, 2006); participating in a lawful industrial action (S.30 of the Labor Disputes (Arbitration & Settlement) Act, 2006); and withdrawing their labor according to the law (Art.40 of the Constitution).

Registering Labor Unions (S.15 of the Labor Unions Act, 2006)

  • The members must file three (3) certified copies of the Labor Union Constitution;
  • File documents showing names, ages, addresses, nationalities (must be Ugandan citizen or with a valid work permit to work in Uganda), job descriptions, etc. of members;
  • Pay stamp duty and registration fee;
  • Receive a certificate of registration from the Registrar as proof of registration. (s.18)
  • Completion of the registration process must be done in ninety (90) days.

On Industrial Action, employees have the following guidelines:

  • Participants or leaders must notify concerned employers of their intended industrial action fourteen (14) days before action to allow employers correct the situation before actual industrial activity.
  • Intention of any industrial action like picketing, sit-down strike and other peaceful and legal forms is to persuade the employer to perform favourably to the employees.
  • Participation in an industrial action is optional and peaceful. Non-participants or members should be intimidated into joining the activity and neither should they be punished for not being part of the activity. Intimidating acts and annoyance or causing damage to the employer’s property are disallowed and are punishable (See S.32 of the Labor Disputes (Arbitration & Settlement) Act, 2006))
  • Unlawful industrial action is an offense punishable by a fine of up to 24 currency points or imprisonment of up to one (1) year or both.

Collective Bargaining Agreements (CBA) in labor union matters

  • CBAs are agreements describing the terms and conditions of employment between an employee or more, their Labor Union or more and employer(s) or employer federations;
  • CBAs must be written and registered;
  • They are enforceable even without registration;
  • They must be filed at the Registry of the Labor Office within twenty eight (28) days after execution; and
  • Must be merged in the contract between employer and employee if the employee belongs to the labour union that formulates them.

The right of association merges well with the rights of an employee, whose rights are laid out in the CBAs. Among the many rights an employee is entitled to under the Act include the following:

  • Weekly rest (s.51)

Weekly rest is a day, according to the law. An employee can work for six consecutive days but must have a day’s break. The employee cannot work for more than six consecutive days without rest. The employee and employer can agree on which day is for rest. Other workers like those in family businesses can discuss their own details/formula.

  • Payment and Calculating pay (S.52)

Pay is calculated basing on hours or days or the type of contract existing between the parties and must be timely made to the employee. A contract employee whose pay is made weekly or more is entitled to pay even for the day of rest.

Work hours are forty eight (48) hours per week (S.53). Any excess hours are calculated as overtime hours and must be paid for.

  • Annual leave and public holidays (S.54)

Employees who have worked continuously for six (6) months or an employee working for sixteen (16) hours a week or more under a contract of service are entitled to annual leave.

The annual leave is for seven (7) days every after four months of continued work, paid for.

  • Sick pay (S.55)

Sick pay is paid in case of sickness or injury and must be claimed for by the employee or his/her legal representative.

  • Maternity leave (S.56)

A pregnant employee is entitled to sixty (60) working days of which four (4) weeks shall be after child birth or miscarriage. She should however, give seven (7) days’ notice to the employer to be entitled to this right.

  • Paternity leave (S.57)

A male employee (after his wife’s childbirth or miscarriage) is entitled to four (4) working days paid paternity leave.

Conclusion

Every contract has its terms and conditions but heavily relies on established principles of employment law. Likewise, labour unions thrive where employees understand their right to association and the freedom to join or not to join one. My client got more than she paid for. Hopefully, she will remember my advice if that time comes.

BY ATUHAIRWE AGRACE

This article appears in our law newsletter Vol 2 Issue 2 of February  16th  2018. To receive The Deuteronomy in real time, click HERE

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