Section 213 of the Labour Relations Act defines a trade union as “an association of employees whose principal purpose is to regulate relations between employees and employers, including any employer’s organisation” which does not operate for private gain.
These institutions are formed in terms of the Act and their primary role is to engage in collective bargaining with their members’ employers, and to represent their members in grievance and disciplinary proceedings. Trade unions and employers’ organisations appoint officials to ensure employers comply with statutory obligations. The rules for trade unions apply mutatis matandis to employers in respect of employer’s organisation.
Section 96 of the Act provides the procedure to be followed for a union to become registered. Registered trade unions are entitled to more rights conferred by the LRA than ones that are not registered. The requirements are as follows:
- The union name should not be similar to an existing trade union;
- They must be independent of any influence and control by an employer;
- Their constitution must meet certain statutory requirements.
To be registered the registrar must consider that the union is genuine. In Independent Municipal & Allied Trade Union v Municipal & Allied Trade Union of SA & Others, the concern in this case was that the newly formed union were a disgruntled group of the IMATU union. Were they genuine in forming a new union? The court found that MATUSA’s name did not so closely resemble IMATU’s name, that it was not likely to mislead or cause confusion, and that the Labour Court could not be faulted for its finding that the provisions of section 95(4) did not create a bar to MATUSA’s registration as a trade union.
Prospective Trade Unions seeking registration are required to make an application to the registrar of Labour relations together with the aforementioned supporting documentation. In terms of section 95(2) a trade union cannot be considered to be independent if an employer exercises influence or control over the union.
Section 97(3) provides that registration of a Union also indemnifies union officials against personal liability for damages that may be cause when exercising their duties in good faith.
Unions can, however, be held liable for damages caused to third parties should they fail to exercise control over their members at gatherings or strikes. In SATAWU v Garvis & Others, the Constitutional Court held that organisers of gatherings could be held liable for damages caused by the gathering unless they took all reasonable steps to avoid the damage and they did not reasonably foresee that damage. In In2Food (Pty) Ltd v FAWU & Others, the union was fined R500 000.00 for failing to control its members during a strike.
Sections 98 to 100 provide that trade unions are required to keep proper accounts and records of members, financial statements, preserve ballot papers and keep minutes of meetings as these may be required by the registrar.
The right to freedom of association and the right of every worker to form and join a trade union is expressed in section 4 (1) of the LRA which guarantees every employee the right to join a trade union. Union constitutions cannot discriminate against who any and who may not join, based on sex or race. However as a union is recognised as a legal person, they may decide whom to admit as a member. In CEPPWAWU & Another v Glass & Aluminium, the Labour Appeal Court held that the resignation of a shop steward constituted a constructive dismissal. The court also found that the reason for the dismissal related to the employee’s exercising his functions as shop steward which is deemed to be automatically unfair.
Employers should be aware that their employees who hold union office must still carry out their obligations to their employer in good faith and these employees are not exempt from performing their duties in an adequate and satisfactory manner. This is confirmed by schedule 8: Code of Good Practice: on dismissal, requiring the Union to be notified of any disciplinary action against its shop steward.
Unions are accountable to their members and their members may have a claim for damages if the union has been negligent or acted against the interests of its members. The Constitutional court confirmed this in FAWU v Ngcobo No & Another. The union had referred a matter to the CCMA on behalf of its members for unfair retrenchment. It then waited more than two years before referring the matter to an attorney for an opinion on the prospects of success who advised that the application would be unsuccessful. It was held that FAWU had breached its obligation to its members to provide them with legal assistance.
Bargaining institutions enjoy a particular place in the workplace. In Calgan Lounge (Pty) Ltd V National Union Of Furniture & Allied Workers Of Sa & Others. Where the EFF intervened in a labour dispute the court confirmed that the deliberate design of the LRA is to designate the task of dealing with workplace disputes and grievances to employers’ organisations, trade unions and workplace forums and that there is no place in this structure for the involvement of political parties.
Article by: Gordon Flanagan
Dispute Resolution Official – East London