This is the fifth alert notice of those issues that will cause YOU to slip and definitely trip in 2024.
Since the LRA came into operation in 1995, the labour market has changed radically. Workforces, once homogenous, have fragmented into core and marginal groups where new forms of work have emerged. Inevitably, new forms of work or organisations will develop to meet these challenges and better serve the interests of the more vulnerable. The registrar of labour relations is not a gatekeeper for traditional forms of trade union organisations nor is it its function to question the wisdom of the new trade unions when drafting their constitutions. In this environment, there is nothing untoward for a trade union not to make provision in its constitution for the employment of officials or the election of shop stewards in the conventional sense.
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- The scenario is as follows: a trade union applying for registration describes itself as a ‘modern trade union’ formed by workers 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 of the LRA), effective 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 applicant trade union is thus deliberately different from the organisational model developed by traditional South African trade unions. The constitution further records that the applicant trade union aims to keep decision-making power 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 recently deal with an application for registration of such a ‘modern’ trade union, taking into account the right to freedom of association?
- How did the labour court recently interpret the independence requirement for registration of a trade union where such union relies heavily on a third party, such as a community advice centre, in order to meet its organisational needs?
- Sections 95(5)(i) to s95(5)(n) of the LRA, in essence, deal with the office of secretary, office bearers, officials and trade union representatives to be catered for in the constitution of a trade union applying for registration. To what extent did the labour court recently indicate that there may be sufficient grounds for a trade union’s organisational structure to not provide for office bearers, officials and trade union representatives as these are defined in s213 of the LRA?
- The form of the application for registration requires, inter alia, the names, identity numbers, company addresses and contact numbers of a president or chairperson, a vice- president or vice-chairperson, a treasurer, additional members and also officials (union employees acting as general secretary and a deputy general secretary). What is the labour court’s viewpoint as to the scenario where a trade union applying for registration does not have such posts in its organisational structure?
- With reference to s95 of the LRA, that lists the requirements for registration of a trade union, what were the sole requirements for such registration recently identified by the labour court?
- In 2018, the Minister of Employment and Labour issued guidelines in terms of s95(8) of the LRA. These guidelines are not concerned with an evaluation of compliance with s95 of the LRA, but are concerned with the evaluation of the requirement of ‘genuineness’. How did the labour court recently deal with this issue?
- The labour court recently had to deal with the question as to whether or not the registrar of labour relations, once an applicant trade union has applied for registration and meets the requirements established by s95 of the LRA, is obliged to register such trade union. What is the nature of an appeal in terms of s113 of the LRA as to the decision of the registrar of labour relations not to register an applicant trade union?
