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What does the cancellation of registration of a trade union mean?

By Magate Phala, Labour Law Specialist and founding Director of Magate Phala & Associates

 

On 24 April 2019, the Registrar of Labour Relations has in terms of section 106(2B) of the Labour Relations Act, 66 of 1995, issued a notice (in the Government Gazette) of its intention to cancel the registration of the Association of Mineworkers and Construction Union (AMCU). The Registrar further cited the following as the reasons for the intended cancellation;

 

-       The trade union has ceased to function in terms of its constitution; and

 

-       The trade union is not a genuine trade union as envisaged in the LRA.

 

The Registrar also extended an invitation to all interested parties to make representations as to why the union’s registration should not be cancelled.

 

Section 106 of the Labour Relations Act supra provides for the cancellation of registration of trade unions and employers' organisations.

 

Subsection (2A) provides that the Registrar may cancel the registration of a trade union or employers’ organisation by removing its name from the appropriate register if the Registrar –

 

(a)  is satisfied that the trade union or employers’ organisation is not, or has ceased to function as, a genuine trade union or employers’ organisation, as the case may be; or

 

(b) has issued a written notice requiring the trade union or employers’ organisation to comply with sections 98, 99 and 100 within a period of 60 days of the notice and the trade union or employers’ organisation has, despite the notice, not complied with those sections.

 

Subsection (2B) provides further that the Registrar may not act in terms of subsection (2A) unless the Registrar has published a notice in the Government Gazette at least 60 days prior to such action –

 

(a)  giving notice of the Registrar’s intention to cancel the registration of the trade union or employers’ organisation; and

 

(b) inviting the trade union or employers’ organisation or any other interested parties to make written representations as to why the registration should not be cancelled.

 

The Act also provides that when a trade union's or employers' organisation' s registration is cancelled, all the rights it enjoyed as a result of being registered will end.

 

In National Entitled Workers Union v Minister of Labour and Others (2011) 32 ILJ 1372 (LC), it was held that:

 

“The Labour Court can wind up a registered trade union and/or grant an order that it has ceased to be an independent trade union. Where it is no longer a genuine trade union, the Registrar is empowered to deregister the said trade union and no court order is needed. The Registrar has a discretion to cancel the registration of a trade union or employers’ organisation by removing its name from the appropriate register. This can only happen if the Registrar is satisfied that the trade union or employer’s organisation is not or has ceased to be a genuine trade union or employer’s organisation.”

 

An aggrieved person may within 30 days of the written notice of a decision of the Registrar, demand in writing that the registrar provide written reasons for the decision. The Registrar must give the applicant written reasons for the decision within 30 days of receiving the demand. Any person who is aggrieved by a decision of the Registrar may appeal to the Labour Court against that decision, within 60 days from the date of the registrar’s decision or if written reasons for the decision are demanded, the date of those reasons.

 

In CCMA v Registrar of Labour Relations & Others (2010) 31 ILJ 2886 (LC) (27 July 2010), Molahlehi J had lamented the lack of accountability of the Union in the following strong terms:

 

“The prejudice that a union may suffer as a result of de-registration and enforcing such, even pending appeal, should be weighed against the public interest of protecting the interests of union members in particular and that of ensuring that funds contributed are utilized for the purpose of benefiting union members. This simple accountability principle is founded on the notion that a union occupies a position of trust as concerning the management of the funds contributed by members. In short the provisions of section 106 of the LRA are protective in nature, intended to protect the vulnerable workers from abuse of their trust by unscrupulous union officials whose involvement in a union may be for no other reason but to advance their selfish business interest”.

 

In Unica Plastic Moulders CC v National Union of South African Workers (2011) 32 ILJ 443 (LC), AC Basson J held as follows at paragraph 23:

 

” There is no doubt that trade unions play an important role in the workplace and in that sense fulfill an important social responsibility towards employees who in most instances have no other recourse than the trade union who will then be entrusted to ensure that he or she is treated fairly by his or her employer. Where the union is registered, the union has the further right of representing the employee at the CCMA, Bargaining Council and the Labour Court. Commissioners, Arbitrators and Judges expect of union representatives to diligently and honestly serve the interest of their members. They have, after all, been granted the privilege and right to be able to represent their members by virtue of them having complied with the statutory provisions of the LRA. I am therefore in agreement with my learned brother Molahlehi, J that a trade union should not be able to represent these vulnerable workers if their conduct has been found to be unscrupulous by the registrar of Labour and especially where the registrar of Labour finds that the union is no longer operating as a genuine trade union but is being used to advance the selfish business interests of individuals”.

 

In Registrar of Labour Relations v Consolidated Association of Employers of SA Region 3 (2015) 36 ILJ 182 (LAC),

 

The Labour Appeal Court was concerned with the deregistration of an employers’ organization by the Registrar and stated as follows:

 

“The registrar is a creature of statute. He derives his powers from the LRA and the guidelines promulgated in terms of the LRA. During the period 1996 to 2002, the function of the registrar was restricted to determining whether a trade union or employers' organisation had adopted a name that met the requirements of the LRA and certain other requirements. If those requirements were met, the registrar was obliged to register the trade union or employers' organisation. Certain amendments to the LRA came into force in 2002 and the registrar was then given the additional authority in terms of s 95(7) of the LRA not to register any trade union or employers' organisation unless he was satisfied that the applicant was a genuine trade union or employers' organisation”.

 

The notice published by the Registrar on the 24th of April 2019 is seemingly in line with its press release issued earlier this year in which trade unions and employer’s organizations alike were warned about the possible consequences of not adhering to its constitution. It is predicted that more organizations such as AMCU may in future have to answer to the Registrar, especially those that do not comply with the amended Labour Relations Act in so far as it relates to the “secret ballot” requirement before a strike or lockout.

 

For more information kindly contact Magate Phala at or cell 082 678 8663 or visit www.magatephala.com

 

 

 

 

 

 

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