The Establishment and Registration of Trade Unions Different From Traditional Union Structures

Abstract

Internationally, various instruments protect the right to freedom of association. Domestically, in South Africa, it is protected by the Constitution of the Republic of South Africa, 1996. This right, amongst others, includes employees’ right to establish and join trade unions. Trade unions in South Africa are regulated under the LRA. A trade union is a voluntary association that may exist and function without being registered. However, it is beneficial for trade unions to register with the Department of Employment and Labour. Benefits for registration include the acquisition of a legal personality separate from members, organisational rights, the conclusion of collective agreements enforceable under the LRA, membership of bargaining councils, the establishment of workplace forums, and authorisation of pickets. Moreover, section 213 of the LRA defines a trade union as “an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers’ organisations.” It is evident from this definition that a trade union should be an association of employees with the main purpose of regulating relations between employees and employers. Through trade unions, employees with common concerns combine to maintain and advance industrial and other interests.

The LRA provides for the registration of trade unions under section 95. This section outlines the requirements for registering trade unions, including the content that the constitution of a trade union should cover. Moreover, its subsection (7) states that the registrar must not register a trade union unless he is satisfied that it is a genuine trade union while subsection (8) states that the Minister may, in consultation with the National Economic Development and Labour Council, by notice in a Government Gazette, publish guidelines to be applied by the registrar in this regard. If satisfied, the registrar must register the applicant trade union, however, if not satisfied, the registrar must send the applicant a written notice of the decision and the reasons, giving the applicant 30 days to comply with the requirements; failure which, the registrar must refuse to register the applicant. In the recent case of Simunye Workers Forum v The Registrar of Labour Relations ((2023) 44 ILJ 2021 (LC)), the registrar refused to register the applicant amongst others because of the way it was established, due to its non-compliance with provisions of section 95 of the LRA, and because it was not a genuine trade union. As a result, the union appealed the registrar’s decision. In view thereof, the discussion considers the facts of the case, the registrar’s grounds to reject the application for registration, the finding of the court, and the legal framework for the establishment and registration of trade unions in South Africa.