The scenario is as follows: a trade union applying for registration describes itself as a ‘modern trade union’ formed by employees in non-standard employment relationships. It has its roots in a community advice office. The catalyst for its formation was the amendments to the LRA (and specifically the amendments to s198) effective from 1 January 2015, when statutory protections were extended to employees in non-standard forms of employment or, as more colloquially described, precarious workers. The constitution adopted by the trade union is thus deliberately different from the organisational model developed by traditional South African trade unions. The constitution further records that the trade union aims to keep decision- making in the hands of those members affected by the decision in question and to ensure that all work is done by members, without remuneration, so as to remove any potential for personal financial interest.
How did the labour court, in Simunye Workers Forum v Registrar of Labour Relations, per Van Niekerk J, in terms of s111(3) of the LRA, on appeal, deal with the decision of the registrar refusing the application of the aforesaid trade union?
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- The constitution of the union in casu:
- does not cater for the employment of officials and all organisational work is to be done by the members of the trade union
- the union is served by a standing committee appointed by majority vote at the annual general meeting
- the committee is responsible for the day-to-day running of the union and may nominate any named member or volunteer as an office bearer for the purposes of the LRA, CCMA rules or rules of bargaining councils
- the union does not have a president/chairperson/vice-president/vice chairperson/treasurer/additional members/general secretary/deputy general secretary in its organisational structure
- The registrar refused the registration on two primary grounds, namely:
- the constitution did not meet the requirements of s95 of the LRA, especially s95(5)(i) to (n) – the organisational structure does not cater for a secretary/office bearer/official/trade union representative with reference to their election, functions, removals or appeals
- the union was not considered to be a genuine trade union for the purposes of s95(7)
- In 2018, the minister issued guidelines in terms of s95(8) of the LRA – these guidelines are not concerned with an evaluation of compliance ito s95 of the LRA, but are concerned with the evaluation of genuineness. It takes into account, in order to determine such genuineness, inter alia, the following factors:
- the purpose of the formation of the trade union
- the composition and membership and activities undertaken by the trade union on behalf of its members, whether or not there are appropriate
qualifications placed on membership - whether or not the trade union seeks to regulate relations between its members and their employers and employers’ organisation by exercising
organisational rights - whether or not the trade union’s activities solely, or to a large extent, consist of referring disputes in cases on behalf of members
- whether or not the trade union is independent of any employer or employers’ organisation
- the financial arrangements with members of a trade union when litigation takes place
- whether or not the trade union is affiliated to a federation of trade unions
- There are only five sole requirements to be met for registration of a trade union, namely:
- the name does not closely resemble the name, in a shortened form, of another trade union that is likely to mislead or cause confusion
- the constitution meets the prescribed requirements (s95 of the LRA)
- the address of the trade union must be in the Republic of South Africa
- the trade union must be independent from employers or employers’ organisations
- the requirement of genuineness must be complied with (with reference to the guidelines issued in 2018 by the minister)
- If the applicant union meets these requirements, the registrar is obliged to register such union by entering its name in the appropriate register – the registrar has no discretion in this regard, entailing that, if the requirements are being met, the registrar is obliged to register the applicant trade union.
- An appeal in terms of s111(3) of the LRA, is an appeal in the wide sense – the court is empowered to consider the correctness of the registrar’s decision, with or without additional evidence or information, and may take into account reasons, objections and facts not placed before the registrar at the time when the decision to refuse the registration was made.
- How should the requirements of s95 of the LRA be interpreted? – in a manner that promotes the purport and objectives of the Bill of Rights (s39(2) of the Constitution). Furthermore, s3 of the LRA requires a court to interpret the provisions to give effect to the LRA’s primary objectives, in compliance with the constitution (s23: freedom of association) and in compliance with public international law obligations (Convention 87).
- If the requirements for registration in s95 limit the right to freedom of association (s23 of the Constitution), then these requirements are to be
interpreted restrictively. - The aforesaid guidelines are not peremptory and are not a checklist of mandatory requirements and are to be interpreted with their purpose in mind – to address coercive practices on behalf of disguised labour consultancies and the activities of financial and insurance brokers.
- The applicant trade union was entitled to rely on the community advice centre in order to meet its infrastructural needs – this did not mean that such applicant
trade union was dependent on an employer or an employers’ organisation. - The grounds upon which the registrar refused registration (as set out above) meant that the registrar took improper considerations into account and, in this
regard, his decision was wrong. - To require a trade union to appoint and deal with the issues pertaining to, as set out in s95(5)(i) to s95(5)(n), a secretary, other office bearers, officials, etc, entails an unjustified inroad into the trade union’s autonomy and establishes an obstacle that could amount to a system of previous authorisation, contrary to Convention 87 and s23 of the Constitution.
