In South Africa Trade Unions are recognised in the Constitution, which provides for the right of workers to join trade unions, and for unions to collectively bargain and strike.
South Africa accepts that strong trade unions are necessary for effective collective bargaining, which is an important way of regulating industrial relations and of determining workers wages and benefits.
Trade union representation is now an accepted facet of industrial practice. Almost all sectors of the economy, including public service, have representative unions which engage employers over issues affecting their workforce.
As of October 2015, there are 184 registered trade unions and 23 trade union federations in South Africa, according to the Department of Labour.
It was thus important for statutory law to lay down certain rules and regulations. Section 95 – 106 of the LRA, deals with the registration and regulation of trade unions.
Section 95 deals with the requirements for registration of trade unions and clearly states as follows in:-
“(1) Any trade union may apply to the registrar for registration if-
→ It has adopted a name that meets the requirements, and
→ It has adopted a constitution that meets the requirements…..”
Section 96 deals with the method of registration and states in:-
“(1) Any trade union may apply for registration by submitting to the registrar-
→ A prescribed form that has been properly completed;
→ A copy of its constitution.
The registrar must consider the registration and when satisfied will issue a certificate of registration in the union’s name and will then send the certificate and a certified copy of the registered constitution to the union.
Section 101 deals with the changing of constitution and amendments thereof.
The registrar must register the changed or new constitution if it meets requirements for registration. If it does not comply the registrar has the right to decline such requests.
In 2015 the union NTM (National Transport Movement), filed various requests for amendments but all these requests were declined by the registrar.
During last year the union NTM (National Transport Movement), recruited a number of employees working at one of our members, BB Snacks, as members, and as such requested to meet in terms of Section 21 of the LRA.
They also informed BB Snacks of certain organizational rights they are seeking and the conclusion of a Collective Agreement to that effect.
Parties met on the 18th September 2015 and the outcome was that the union’s request was declined due to the effect that they could not recruit members from BB Snacks, as their Constitution did not make provision for that type of business. Fact is that BB Snacks does not falls under their scope of application. BB Snacks is in the business of manufacturing chips/niknaks, and then transports the goods to clients in the North West and Northern Cape.
The Union disputed our submission and the matter was referred to the CCMA.
During conciliation on the 5th November 2015, we raised a point in limine that the Union’s Constitution did not make provision for our member’s type of business, and as such they could not recruit our employee’s as members.
The matter remained unresolved and the Union still proceeded to operate and referred out of their scope.
In the interim it came to light that the Union is also using an amended Constitution not duly registered with the Registrar at the Department of Labour in terms of section 95 (5) and (6) of the LRA, and under these false and vexatious manner is seeking organization rights at the workplace of BB Snacks. All requests by NTM in 2015, to amend their Constitution, were declined by the Registrar.
On the 19th January 2016 the matter was heard at arbitration level, where upon these serious points were raised as points in limine. On the 26th January 2016 the honourable commissioner Prakash Roopa issued a ruling, and I quote: “the matter has to be set down for an in limine determination at which the parties are required to lead evidence before me in respect of the official constitution of the union on which I can place reliance on before making a ruling on the point in limine raised.”
With this ruling I do not agree, as points in limine were already raised, and the commissioner should have dealt with it as such.
In SATAWU v Telekleen / Compukleen (2010) 7 BALR 768 (CCMA) the Respondent raised a point in limine whether the members the union had recruited fell within the scope of their Constitution. Only once this issue had been determined, could the dispute relating to organizational rights be heard. The Commissioner found that in terms of the Union’s Constitution, the members recruited, did not fall within the scope of the trade union’s own constitution and therefore the application for organizational rights was flawed and the rights sought were ultra vires. The point in limine was upheld.
In CEPPWAWU / Pop Snacks (2009) 11 BALR 1156 (CCMA) , the Commissioner noted that the union may only operate in sectors defined in its Constitution and therefore they were bound by their constitution. He also found that the CCMA lacked jurisdiction to make an order regarding the enforcement of organizational rights in terms of section 21 of the LRA, in circumstances where the employees fell outside the registered scope of the union’s constitution. The application was dismissed.
Our dispute was placed down for arbitration on the 17th March 2016, and not as an inlimine as per the ruling of the commissioner. Only time will tell what the outcome of this frivolous matter would be.
Article by: Maureen Nel
CEO Dispute Resolution Official – Klerksdorp