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[2011] ZALCJHB 232
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Commercial Mining and Allied Workers Union v Registrar of Labour Relations (J1732/10) [2011] ZALCJHB 232 (13 August 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J1732/10
In the matter between:
COMMERCIAL MINING AND ALLIED WORKERS UNION
...............................
Appellant
and
REGISTRAR OF LABOUR RELATIONS
............................................................
Respondent
JUDGMENT
FRANCIS J
Introduction
1. This is an appeal by the appellant, the Commercial Mining and
Allied Workers Union after the respondent, the Registrar of Labour
Relations (the Registrar) had refused to register it as a trade
union. The appellant had applied to be registered in terms of section
96 of the Labour Relations Act 66 of 1995 (the LRA). The registrar
had found that it was not a genuine trade union as envisaged
in the
LRA and refused to register it.
2. The appeal is brought in terms of section 111(3) of the LRA. The
appellant contends that it has met with the requirements of
the LRA.
Background facts
3. The appellant stated in its founding affidavit that on 5 June
2010, at Johannesburg, a meeting was convened by the workers
who
experience common problems and challenges at the workplaces
throughout South Africa. The aim of the meeting was to consider
the
possibility of forming a trade union to attend to and address the
common needs and problems of the workers. The meeting deliberated
on
the issues forming part of the agenda and ultimately adopted a
constitution and the name of the appellant. The office bearers
of
the appellant were elected by ninety workers who attended the
meeting. The elected executive were tasked with the registration
of
the appellant to ensure the optimal benefit to members arising out
of the registration with the Registrar. The current membership
of
the appellant stands at 201.
4. On 30 June 2010 the general secretary of the appellant in
pursuance of the mandate of the workers, completed and submitted
to
the Registrar an application form for the registration of the
appellant. The application is dated 5 June 2010. It submitted
three
copies of the constitution, the minutes of the meeting of 5 June
2010, identity document, copies of the office bearers
of the
appellant and attendance register. The minutes of the meeting read
as follows:
“
Minutes
of the meeting
held on the 5th June 2010
Present
See the attendance register attached hereto
Agenda
1. Opening and Welcome
2. Purpose of the meeting
(2.1) Adaptation of the name
(2.2) Adaptation of the constitution
(2.3) Appointment of office bearers/officials
3. Way forward
4. Closure
Opening and welcome
Cde Samuel Khosa opened and chaired the meeting and thanked
everybody present for attending.
Purpose of the Meeting
Cde Samuel Khosa informed workers about formation of a trade
union and the requirements as stipulated in
section 95
of the
Labour
Relations Act.
Adaptation
of a name
The name of a trade union was adopted to Commercial Mining and
Allied Workers Union (COMAMWU)
Adaptation of the constitution
The constitution was summarized and adopted by the meeting.
Appointment of the office bearers/officials
Appointment of president it was agreed that it will be Andries
Boshamane with work address as follows:
709 Rubenstein Moreleta Park working for Brinant Security.
Appointment of Deputy President was agreed that: it will be
Vhuhanani Ronald Nemafhohoni with work address as follows:
1 Tugela Crescent Lenasia working for Dynamic Engenering
Rebuilders.
Treasurer: it was agreed that it will be Solomon Sibulelo Twalo
with work address as follows:
6 Roper Street Eloff Ext working for Riverside Distribution
Appointment of Deputy Treasury: it was agreed that it will be
Sibongile Jostina Shongwe with work address as follows:
46 Robynweg Klerksoord Akasia working for Rethas Kitchens
Samuel Gezani Khosa was appointed as a General Secretary
Lorraine Mogamisi was appointed as a Deputy Secretary.
Secretary and Deputy were assigned to ensure that the
registration is been done within the period of 3 months
CLOSURE”
5. The Registrar responded in a letter dated 5 July 2010 as follows:
“
Your application for registration of a
trade union dated the 5th June 2010 has reference.
1. The Registrar, in considering applications for registration,
does so in terms of Section 95 and 96 of the Act. In addition to
the
above the Registrar must take into consideration the guidelines
published in terms of Section 95(8) of the Act.
2. The application and the accompanying information submitted do
not meet the requirements for registration and you are herewith
afforded an opportunity in terms of section 96(4) of the Act to
prove that the applicant complies with the Act and that it is
a
genuine trade union.
3. In considering a new application for registration, the
Registrar must take into account other factors such as the formation
of the applicant, activities of the applicant and membership of the
applicant.
4. In order to enable this office to determine whether the
application complies with the Act and is a genuine organization, the
following information should be submitted for consideration within
30 days of the date of this letter.
4.1 A list of the officials and office bearers of the applicant
union, their contract details, work contact details and addresses.
4.2 Copies of employment contracts of the officials of the
appellant organization.
4.3 Information on relevant work experience and qualifications of
all officials and office bearers which will be beneficial to the
positions they hold in the organization.
4.4 Proof of paid-up membership of the last 3 months and the
sectors in which the members belong.
4.5 Banking account of the applicant organization (bank
statement).
4.6 A copy of the signed lease contract of the applicant
organization’s office(s).
6. The appellant responded in a letter dated 23 July 2010 as
follows:
“
1. Your cognisance of the provisions of
sections 95 and 96 of the Act as well as your taking into
consideration the guidelines
published under section 95(8) of the
Act is greatly appreciated.
1.1 In terms of section 95(1) a trade union may apply to the
registrar for registration if it satisfies the provisions of the
provisions of paragraphs (a), (b), (c) and (d):
(a) it has adopted a name, Commercial Mining and Allied Workers
Union shortened COMAWU, that meets the requirements of subsection
(4), that is, the name or shortened form of the name that does not
closely resembles the name or shortened form of the name of
another
trade union and is unlikely to mislead or cause confusion. We submit
that the adopted name or shortened form thereof
does not resemble
that of any other trade union and is unlikely to mislead or cause
confusion.
(b) it has adopted a constitution which in our opinion satisfies
the requirements set out in subsections (5) and (6). A copy thereof
was handed in on 30 June 2010.
(c) it has an address in the Republic. The above stated postal
address is in the Republic and the physical address in the Republic
will be furnished once a registration certificate has been obtained
as the prospective landlord is willing and prepared to lease
his
property to the trade union upon production of a registration
certificate.
(d) this trade union is independent in that it is not under
direct or indirect control of any employer or employers’
organisation
and is free of any interference or influence of any
kind from any employer or employers’ organisation.
2. The trade union was formed at the inaugural meeting attended,
on 5 June 2010, by 90 founding members who associated with one
another to establish this union to regulate their relations with
their employers. It is at this meeting where the name and the
constitution were adopted and office-bearers appointed. The
membership presently stands at 201.
3. Membership is restricted to employees in the commercial
activities, mining and related and related industries - see clause 6
of the constitution.
4. The activities of the applicant are to regulate relations
between the members/employees and their employers and/or employers
organisations including the regulation of these relationships
through collective bargaining. It is evident from the attendance
register that the applicant seeks to recruit members from particular
workplace to entrench its organisational rights or collective
bargaining.
5. The following is the applicant’s response to paragraph 4
of your above stated correspondence:
5.1 POSITION NAME & CONTACT WORK ADDRESS
DETAILS
President Andries Boshomane Brinant Security
Tel: 073 999 1264 709 Rubenstein Moreleta Park
Deputy Vhulahani Ronald Dynamic Engineering
President Nemafhononi 1 Tugela Crescent Lenasia
Tel: 076 268 1953
Treasurer Solomon Sibulelo Riverside Distributor
Twalo 6 Roper Street Eloff Extension
Tel: 076 058 4041
Deputy Sibongile Jostina Rethas Kitchens
Treasurer Shongwe 46 Robynweg Klerkoord
Tel: 074 210 9505
General Samuel Gezani COMAWU
Secretary Khosa P O Box 7909 Johannesburg
Tel: 071 345 2290
Deputy Lorraine Mogamisi COMAWU
Secretary Tel: 078 341 3517 P O Box 7909 Johannesburg
5.2 The two employees/officials of the applicant union are
volunteers. Their contracts are attached hereto.
5.3 Copies of their cv’s and educational certificates are
attached hereto.
5.4 Because the applicant union does not have a bank account it
is not able to collect membership fees for fear of unavailable
safekeeping measures. The requested sectors are set out in clause 6
at pages 3 and 4 of the constitution.
5.5 A bank account could not be opened because the bank’s
prerequisite for opening an account is a certificate showing that
the union has been registered. A copy of the bank’s letter is
attached hereto.
5.6 The landlord requires a copy of the registration certificate
to enable him to sign the lease contract.
5.7 Because the applicant union does not have a certificate it is
unable to invoke the provisions of section 21 to access the stop
order facilities and/or workplace or appoint shop stewards.
It is the applicant union respectful submission that your
requirements as per paragraphs 4.2, 4.4, 4.5 and 4.6 of your
communication
put the applicant union in an invidious position in
that it seems to be a case of which the chicken and the egg came
first”.
7. The appellant was informed in a letter dated 17 August 2010 that
its application was refused. The letter reads as follows:
“
I refer to your application for
registration of a trade union.
On 5 July 2010 you were, in terms of section 96(2) of the Act,
requested to provide the Registrar with further information in
support of your application. From the information that was submitted
the members are not paying membership fees in terms of the
union
constitution. This case doubt as to whether there is any employee
that can claim to be a member of the union. An applicant
trade union
must be functioning as a trade union before applying for
registration.
As a result thereof, the applicant union does not qualify for
registration.
Consequently your application is refused with effect from 17
August 2010”.
8. After the appellant had written to the Minister on 9 September
2010, the Registrar responded in a letter dated 23 September
2010 as
follows:
“
I refer to your letter dated 9
September 2010 addressed to the Minister requesting his
intervention. I will elaborate on the reasons
for the refusal of
your application as was provided to you in my letter dated 17 August
2010.
When considering an application for registration, I make my
decision based on the registration requirements as well as the
guidelines
issued by the Minister in 2002 to determine whether an
applicant for registration is a genuine trade union.
A trade union as per definition of the Act means “An
association of employees whose principal purpose is to regulate
relations
between employees and employers including employers’
organisation”. I am not convinced by the operations and
activities
of the applicant that the union members were associating
together as required by the Act.
According to Guidelines, the process followed to form a trade
union can give important indications as to whether or not an
organization
is a genuine trade union. In an attempt to prove that
employees came together to form the trade union, minutes of a
meeting dated
5 June 2010 were submitted by the applicant union. A
copy of an attendance register submitted did not indicate in respect
of
which meeting it was for and no contact details were provided to
enable this Office to verify if the individuals mentioned in the
minutes did indeed attend the meeting. The minutes were poorly
crafted and no clear resolution or discussion was captured. It
is
the view of this Office that the minutes were not a reliable source
to confirm that members associated together to form the
applicant
union. From the minutes it is confirmed that “Cde Samuel Khosa
informed workers about formation of the trade
union” which is
an indication that certain individuals decided on the formation of
the applicant union and not the members
themselves.
The fact that the names and details of office bearers was the
only information that could be submitted leads this Office to
believe
that it was only these individuals that established the
organisation.
The applicant union claimed to have 201 members as per the LRA
Form 6.1. The applicant in its letter dated 23 July 2010 confirmed
than none of the “members” were paying membership fees
and that there was no bank account. A letter from the First
National
Bank confirmed that the applicant union did not have a bank account.
The constitution indicated that membership fee is R42.00. Despite
the provisions of the constitution that the members shall pay
membership fees, none of the members paid any membership fees as
required by the constitution. Furthermore, the union failed
to prove
in any way that workers were members of the applicant union by for
instance submitting completed membership forms to
show their
commitment to the membership of the applicant union. Despite this
being a requirement of the constitution.
This was a clear indication that the applicant union had no
members and existed in name only. The Act requires that any trade
union may apply to the Registrar for registration if it complies
with certain requirements. In my view the applicant is not
functioning
as a trade union. The applicant must at least show that
it is in some way functioning in terms of its constitution, before
registration
can be considered.
The applicant failed to submit a copy of a lease agreement as was
requested to prove that it had an address in the republic. It
failed
despite this office’s request to submit a copy of the lease
agreement.
Based on the above, the registration of the applicant union was
therefore refused.”
9. After the Registrar had refused or register the appellant, the
appellant brought this appeal against the Registrar’s
decision.
The appellant’s contentions
10. The appellant contended that it has satisfied the requirements
of section 95(1) and(2) of the LRA. It has also responded
to the
requirements of the Registrar in full taking into account the
provisions of section 95(8) of the LRA. The Registrar’s
concern was whether the appellant was a genuine trade union. It
stated that of all the requirements stated by the Registrar,
it was
only unable to provide the information or documentation beyond its
control. It was unable to open a bank account as the
bank requires
proof of registration as a trade union by way of a certificate of
registration. It was unable to provide a copy
of the lease agreement
for its offices as the landlord wanted a copy of the certificate of
registration as a trade union. Proof
of paid - up membership for the
last 3 months could not be submitted as the appellant could not
invoke the provisions of section
21 of the Act as it is not
recognized by employers’ organisations due to non
registration. The rights of the appellant
are seriously curtailed if
non existence at all. It cannot take the risk of collecting money
without any bank account. It cannot
comply with the requirements as
they were beyond its reach.
11. The appellant contended further that it is independent as
required by section 95(2) of the LRA. In his refusal to register
the
appellant, the Registrar relied on the provisions of sections 95(7)
and (8) which provides that the Registrar must not register
a trade
union or employer’s organization unless the Registrar is
satisfied that the applicant is a genuine trade union
employer’s
organization. The further requirement which is the reason for non
registration of the appellant is the fact
that according to the
Registrar, the appellant must be functioning as a trade union before
applying for registration. It is further
the Registrar’s view
that since the appellant does not have members contributing
membership fees in terms of its constitution,
there is a doubt
regarding the membership of the appellant. The appellant contended
that it was unable to comply or satisfy the
above condition as it
does not enjoy organizational rights enjoyed by registered trade
union. It is thus not recognized by employers’
organization
alternatively a certificate of registration is required to allow for
employers to deduct membership fees. In terms
of section 23(2) of
the Constitution of the Republic of South Africa, every worker has
the right to form and join and to participate
in its activities and
programs. This right so it was contended has been frustrated by the
Registrar without just cause. The appellant
has complied with all
the requirements for the registration of a trade union and therefore
the Registrar must register the appellant
accordingly. It has met
the requirements regarding its name, constitution, independence and
its reason for its formation are
not contested by the Registrar.
Analysis of the facts and arguments raised
12. Chapter VI of the LRA deals with trade unions and employers’
organisations. Sections 95 to 106 deals with the registration
and
regulation of trade unions and employers’ organisations. A
trade union may apply to the registrar for registration
if it meets
the criteria set out in section 95(1)(a) - (d) of the LRA. It
provides as follows:
“
1. Any trade union may apply to the
Registrar for registraion if -
(a) It has adopted a name that meets the requirements of
subsection (4);
(b) It has adopted a constitution that meets the requirements of
subsection (5) and (6);
(c) It has an address in the Republic; and
(d) It is independent”.
13. The registrar must in terms of section 95(7) of the LRA refuse
to register any trade union unless he is satisfied that it
is a
genuine trade union. In terms of section 213 of the LRA trade union
means “an association of employees whose principal
purpose is
to regulate relations between employees and employer”. The LRA
provides no definition of the term ‘genuine’,
but such
meaning can be gleaned from the guidelines issued in terms of
section 95(8) in GNR146 in Government Gazette 25515 of
October 2003.
The registrar’s powers under section 95(7) of the LRA should
be construed as including a reference to the
mischief which the 2002
amendment sought to address. The following appears in
WUSA v
Crouse NO & Another
[2005] 11 BLLR 1156
(LC) at paragraph
27:
“
Moreover, the registrar’s powers
under section 95(7) should be construed as including a reference to
the mischief which
the 2002 amendment sought to address. It is well
known that the amendments effected to sections 95 and 106 of the LRA
in respect
of registration and deregistration of trade unions and
employers organisations on the grounds of genuineness sought to deal
with
a clearly defined mischief which was set out in the explanatory
memorandum to the Bill in the following terms:
‘
Since the enactment of the 1995
Labour
Relations Act there
has been a significant increase in the number of
trade unions and employers organizations. A significant number of
these are
no more than disguised labour consultants that have
registered for the sole purpose of gaining appearance rights at the
CCMA
and Labour Court.
It has also come to the attention of the department that a number
of these trade unions adopt coercive practices that are indicative
of the fact that they are not genuine trade unions:
(a) .............
(b) if the trade union acts on behalf of a ‘member’
in a claim, excessive or disproportionate, the full amount of any
payment received is not paid over to the member and often a service
fee is charged.
(c) ..............
There are also strong indications that some financial and
insurance brokers have become active in the establishment and
affairs
of trade unions and employers’ organisations in order
to market financial or insurance products. In one instance a
magistrate’s
court ordered the transfer of the union’s
assets and all records (in effect the registration and management)
to an insurance
broker. This broker then attempted to continue by
cloaking its activities under the banner of a union. The status quo
was partially
restored but only after a lengthy, resource-absorbing
and time-consuming process.
The operation of certain labour consultancies that have
registered as employers’ organisations undermine effective
dispute
resolution. These organizations tend to recruit their
members from small businesses that are inexperienced in respect of
labour
relations matters. Once gullible employers have joined, they
are frequently faced with exorbitant fees.
This creates a negative impression of the
Labour Relations Act
and
its dispute resolution institutions and undermines the efforts
of genuine organisations participating in collective bargaining
structures to recruit such employers. This in turn negatively
impacts on the participation by certain employers, including small
employers in bargaining councils.
The proposed amendments to
section 95
are intended to discourage
the formation and registration of trade unions and employers’
organizations that are not genuine,
by introducing a requirement
that they be genuine or bona fide and giving the registrar of labour
relations the power to refuse
to register organizations which are
not. The Minister will have the power to issue guidelines concerning
whether or not a trade
union or employers’ organizations is
bona fide. Any refusal to register a trade union on these grounds
will be subject
to appeal to the Labour Court.
The International Labour Organization has expressed the view that
this is in keeping with its standards concerning the promotion
of
collective bargaining and freedom of association.”
14. The Minister of Labour has in terms of
section 96(8)
of the LRA,
in consultation with NEDLAC by notice in the Government Gazette
published guidelines to be applied by the Registrar
in determining
whether an applicant is a genuine trade union or a genuine
employer’s organisation. The Minister has published
guidelines
in GNR1446 in GG 25515 on 10 October 2003. Clause 1 of the
guidelines sets out there purpose which is as follows:
“
This document contains guidelines
published by the Minister of Labour, in consultation with NEDLAC,
that are to be applied by
the registrar of Labour Relations in
determining whether an applicant for registration in terms of the
Labour Relations Act is
a genuine trade union or a genuine
employers’ organization. In terms of
section 95(7)
of the
Labour Relations Act, the
registrar may only register a trade union
or an employers’ organisation if the registrar is satisfied
that it is a genuine
trade union or a genuine employers’
organization. In addition in terms of
section 106(2A)
of the
Labour
Relations Act, the
registrar may cancel the registration of a trade
union or an employers’ organization that is not, or has ceased
to function
as, a genuine trade union or employers’
organization, as the case may be”.
Clause 7 of the guidelines for the registration of trade unions
provide that the process followed to form a trade union can give
important indications whether an organisation is a genuine trade
union. Amongst others, key aspects of the process include the
number
of founding members who attended the inaugural meetings to establish
the trade union and who completed signed registers
indicating their
names and place of work, the means by which the constitution of the
trade union was drafted and adopted and
the election of an executive
committee or council of members and the election of office bearers.
They are guidelines and remains
that.
15. The appellant applied to be registered as a trade union on 30
June 2010 with the Registrar which application was dated 5
June
2010. Upon receipt of the application, the Registrar considered the
application and was not satisfied that the appellant
met the
requirements for the registration. It sent the appellant on 5 July
2010 a written notice and informed it that it had
30 days from the
date of the notice to furnish the Registrar with additional
information, amongst others, a list of the officials
and office
bearers of the applicant union, their contact details, work contact
details and addresses, copies of employment contracts
of the
officials of the applicant’s organisation, proof of paid up
membership of the last three months and sectors in which
the members
belong, banking account details of the applicant, and the address of
the applicant in South Africa.
16. The appellant responded with a letter dated 23 July 2010. It is
stated in paragraph 2 of the letter that the trade union
was formed
at the inaugural meeting attended on 5 June 2010 by 90 founding
members who associated with one another to establish
the union to
regulate their relations with their employers. It was at that
meeting where the name and constitution were adopted
and the
office-bearers appointed. The membership presently stood at 201. It
has clearly failed to provide the Registrar with
a list of the
officials and office bearers contact details, work contract details
and addresses. No bank account had been opened
and no office address
has been furnished.
17. It is also clear from the aforesaid letter that the appellant
did not meet before 5 June 2010 and that the constitution was
adopted on 5 June 2010. The constitution must have been drafted
before the meeting by the deponent of the founding affidavit,
Samuel
Khosa who is not an employee. Only employees are required for
purposes of the formation of a trade union. Samuel Khosa
described
himself in his founding affidavit as “I am an adult male
elected as the general secretary of the Appellant And
I am
furthermore duly authorized to depose to this affidavit in Terms of
the resolution attached hereto as
Annexure “A”
.”
Since the deponent is not an employee himself, the meeting alone
could not have been convened by the workers since a
trade union is
formed by an association of employees.
18. The appellant in its founding affidavit has provided its address
as P O Box 7909 Johannesburg 2000. In paragraph 2 of the
founding
affidavit it is stated that “the appellant is Commercial
Mining and Allied Workers’ Union (COMAWU), a voluntary
association of workers, which is constituted as such in terms of its
constitution with its as P O Box 7909, Johannesburg 2000.”
The
appellant has stated that a meeting was convened on 5 June 2010 by
workers who had experienced common problems and challenges
at the
workplace throughout the Republic of South Africa. The aim was to
consider the possibility of forming a trade union to
attend to and
address the common needs and problems of workers. It is clear from
the above that as at 5 June 2010 the applicant
was not a trade union
when it applied for registration. It has defined itself as a
voluntarily association of workers. It also
does not have a physical
address or office address as contemplated in
section 95
of the LRA.
Only an existing trade union can apply for registration in terms of
section 95
of the LRA.
19. It is not clear from the minutes how the officials were elected.
The constitution was adopted without elections. There is
no
indication that there was any voting or election of office bearers.
It is not stated from the minutes of the said meeting
who made the
resolution and how the resolution was arrived at to adopt the
constitution. The minutes have not been signed by
either office
bearers or the members themselves. The attendance register does not
state what it was for and even if it was accepted.
There are no
details of the attendees and employment contact details on the
register. There are no contact details and employment
contract
details to establish indeed that they are employees. As stated above
Samuel Khosa who claimed that he chaired the meeting
was not a
worker. It is strange that he would arranged for the formation of
the trade union when he himself is not an employee.
A trade union
should be formed by workers but he was the role player in this case
and is not a worker. The appellant has stated
that the current
membership was 201 but nowhere in the papers is the membership base
recorded and none of the employment details
of the members has been
provided.
20. The appellant has admitted that it did not comply with the
requirements of the LRA for lack of an address in South Africa.
It
does not have an office where it operates from and this is also a
basis for the registrar not to address it. First National
Bank has
requested that the appellant furnish a certificate and this is proof
that it does not have a bank account which means
that it has not
been operating as a trade union. It is not true that the appellant
will not be able to open a bank account without
proof of
registration. Any voluntary association can open a bank account.
21. The appellant has stated that it cannot take the risk of
collecting money without any bank account and that it could not
comply with the respondent’s requirements as they were beyond
its reach. It is clear from the contents that there is no
membership
and subscription fees and this is an indication that it is not a
trade union.
22. The appellant’s application for registration was refused
because it is not a trade union and that it does not comply
with
section 95
of the LRA in that it does not have an office or address
to operate from. The appellant has admitted in its founding papers
that
it has failed to comply with some of the requirements. Since it
has failed to meet those requirements, it follows that the appeal
stands to be dismissed.
23. I do not believe that this is a matter where costs should follow
the result.
24. In the circumstances I make the following order:
24.1 The appeal is dismissed.
24.2 There is no order as to costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPELLANT : S RATIME - UNION OFFICIAL
FOR RESPONDENT : AM PHETU INSTRUCTED BY STATE ATTORNEY
DATE OF HEARING : 5 AUGUST 2011
DATE OF JUDGMENT : 13 AUGUST 2011