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[2018] ZALCJHB 370
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African Labour Civil Rights Union v Registrar of Labour Relations (J 1605/17) [2018] ZALCJHB 370 (9 November 2018)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Of
interest to other judges
case
no: J 1605/17
In
the matter between:
AFRICAN
LABOUR CIVIL RIGHTS UNION (ALCRU)
Appellant
and
REGISTRAR
OF LABOUR RELATIONS
Respondent
Heard
:
23 October 2018
Delivered
:
9 November 2018
Summary:
Appeal against Registrar’s refusal to register trade union –
LRA
ss 95-96 and 111.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an
appeal in terms of s 111(3)(b) of the LRA.
[1]
[2]
The Registrar of Labour Relations refused to register the appellant,
ALCRU, as a trade union following its application in terms
of ss 95
and 96 of the Act. The union appeals in terms of s 111(3)(b).
Background facts
[3]
The union applied to be registered on 7 February 2017. The Registrar
requested additional information. On 16 February 2017 his
office sent
the union a letter that is worth quoting in full:
“
Your
application for registration of a trade union received on 7 February
2017 refers.
1.
The Registrar, in considering applications for registration, does so
in terms of registration requirements of sections 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 applicant is hereby informed in terms of section 96 (4) of the
Act that the accompanying information submitted with the application
do not meet the requirements for registration in terms of section 96
(4) of the Act and you are here with afforded an opportunity
in terms
of section 96 (2) read with (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, and of the applicant [
sic
].
4.
In order to enable this office to determine whether the application
complies with the Act and is a genuine organisation, the
following
information should be submitted for consideration:
4.1
The minutes and signed attendance register when the union was
established and where the constitution was adopted. Also submit
minutes of any other meetings held and signed attendance registers;
4.2
List of names and work addresses of all office bearers and officials,
indicate clearly who officials are and who are office
bearers and
contact details of companies they work for;
4.3
Submit details of the previous involvement of the office bearers in
other labour organisations;
4.4
Submit proof that all office bearers are paying their membership
fees;
4.5
Submit proof of employment of office bearers in the form of salary
payslips;
4.6
Submit all the expenditure and income documents as well as copies of
proof of expenditure already incurred (include also the
commission
and travel allowances);
4.7
Submit application forms that have been completed by the members who
have joined the applicant trade union which should include
the
identity numbers of the employees;
4.8
Submit proof of paid-up membership for the last 3 months and indicate
the sectors members are employed.
4.9
Submit a copy of the signed lease contract of the applicant
organisation’s office(s).
4.10
It must be borne in mind that if the new constitution is compiled,
another meeting should be held to adopt the constitution
as indicated
in 4.1 above.
The
union is also requested to replace chapter 19 (ballots) with the
attached ballot clause.
The
union is also requested to provide clarity on the following concerns
raised by this office:
Why
should associate and retired members be entitled to benefits as they
are no longer employees?
Borrowing
of money in chapter 20 (71) “credit and debt”, did the
union receive any approval from FSB to borrow money
on credit, please
submit the proof.
Chapter
3 clause 11(1.1)(a) contradicts chapter 3 clause 13(2-3). How can an
unemployed person remain a member of the union. [
sic
]. Your
constitution says the member remain [
sic
] in good standing
when subscription fees are not more than 3 months in arrears.
It
is also noted that the numbering of clauses is incorrect, please
rectify, attached find your constitution reflecting changes
on the
numbering.
It
should however be brought to your attention that this office, when
considering an application for registration takes a decision
based
firstly
on the actual statutory registration requirements in
terms of section 95 of the Act and
secondly
on the provisions
of the guidelines 95 (8) of the Guidelines.
In
terms of section 95(7) of the Act “
the registrar must not
register a trade union or an employers’ organisation unless the
registrar is satisfied that the applicant
is a genuine trade union or
a genuine employers’ organisation”
.
In
terms of section 95 (8) of the Act, the Minister has issued
Guidelines in consultation with NEDLAC, which were published in the
Government Gazette on 10 October 2003 and are to be applied by the
Registrar in determining whether an applicant for registration
is a
genuine employers’ organisation [
sic
].
You
are hereby in terms of section 96 (4) given written notice that the
application does not meet the requirements for registration
and you
are given 30 days from the date of this letter to meet those
requirements.
Your
cooperation will be appreciated.
Yours
faithfully
REGISTRAR
OF LABOUR RELATIONS”
[4]
In response, the union submitted the following documents:
4.1
A document with the heading: “
30 April 2016
MINUTES OF A
MEETING HELD AT MBT (BAPSFONTEIN)”.
4.2
A document headed
MEETING FOR DRIVERS
and dated 30 April 2016.
4.3
A list of 20 names of people who attended a meeting at MBT petroleum
on 30 April 2016.
4.4
A document headed
01 MAY 2016
MINUTES OF A MEETING HELD AT
HONEY LOTUS
4.5
A document headed
MEETING FOR DRIVERS
and dated 1 May 2016.
4.6
A list of some 31 names of people who attended a meeting at Honey
Lotus on 1 May 2016.
4.7
A document headed
PROPOSAL FOR A MEETING – READING AND
ADOPTION OF CONSTITUTION
with the date 15 May 2016 and the venue
64 Allandale Park, Midrand.
4.8
Minutes of a meeting held at Midrand (undated).
4.9
A list of 35 names of people attending a “union meeting”
at MBT Petroleum on 15 May 2016.
4.10
A document headed
BACKGROUND OF THE FORMATION OF THE TRADE UNION
MOVEMENT
containing the following annotation:
“
BELOW
IS THE FIRST SITTING:-
DATE:
7
th
May 2016
TIME:
10h00
VENUE:
Block 64 Allandale Park, Midrand.”
4.11
Some 85 signed application forms for ALCRU membership.
[5]
The minutes of the meeting of 30 April 2016 reflects the following
under the heading, ‘’Establishment and registration
of a
trade union”:
“
During
the meeting workers discussed that due to their working conditions,
exploitation and unfair labour practices they are encountering
at the
workplace. [
sic
]. The workers voice that when they try to
challenge and engage their employees individually when they [
sic
]
having problems in the workplace; they are always being victimised by
their employers. Workers said they are not allowed to exercise
their
rights the workers felt that the voices are not being heard by the
employers and I always being exploited by the employers
because they
are unorganised; then they decided that they need to so that their
voices can are heard [
sic
] by their employers and that their
challenges can be addressed in a structured manner.
After
all that was said during the meeting: the workers agreed that they
need to have two names from the workers that will form
the interim
structure to assist Mr P Khubeka in making sure that the meetings
that will deal with the establishment are coordinated.”
[6]
The minutes reflect that the workers identified Messrs Peter Moopeloa
and Alfred Mnono “to make sure that the establishment
and
registration of the union is coordinated to all the employees.”
[7]
The minutes of the next meeting “for drivers” at Honey
Lotus on 1 May 2016 contain
verbatim
the same passage under
the heading, “Establishment and registration of a trade union”.
The only difference in the minutes
appears to be that a further two
names are added “to make sure that the establishment and
registration of the union is coordinated
to all the employees”,
namely Messrs Isaac Motha and Sphamandla Jiyane.
[8]
It appears that a meeting was then held on 7 May 2016 in Midrand,
attended by five people, viz Messrs Kubheka, Motha, Jiyane,
Mnono and
Moopeloa. They agreed on the name of the union (ALCRU). The minutes
then reflect:
“
A
proposal was made that the union need a constitution to be
registered, as well as members who will join the union and pay the
monthly subscriptions. The challenge was how the members can join the
union which is not registered. Finally it was agreed that
the
constitution should be drafted.”
[9]
The final set of minutes appears to be that of Midrand, apparently on
15 May 2016. At that meeting “the constitution was
read by the
General Secretary, before the workers” – apparently the
35 workers present who signed what appears to be
an attendance
register. The constitution was adopted and “the NEC signed a
document of resolution to open the bank account
to any registered
bank in South Africa.” It was also suggested that the union
should be registered as soon as possible.
[10]
After the union’s application for registration in February
2017, the Department of Labour submitted a report on the verification
of the application for registration to the Registrar on 29 March
2017.
[11]
The report referred to the full set of minutes outlined above. It
noted that only 20 people attended the meeting of 30 April
2016. The
report states that “the executive committee elected themselves”
and that “there is no clear indication
on how the constitution
was drafted as there are duplicates of minutes”. It concluded
that there was no proper adoption of
the constitution; that members
did not participate in the drafting and adoption of the constitution;
and that there was no proper
formation of the trade union.
[12]
The report also states that the union does not have any current
activities. It claims to have 171 signed copies of application
forms
and it submitted a typed list of 109 people purported to be paid up
members. But when an official of the Department randomly
contacted
some of those individuals, some denied having any knowledge of the
union (ALCRU) and others claimed to belong to AMCU
(the Association
of Mineworkers and Construction Union). The report expressed doubt
that the union has members in good standing.
[13]
The report further states that, although the union had submitted a
bank statement in the name of the union reflecting a balance
of R5,36
(fieve Rand and thirty six cents), it was established that the union
was using an ATM card to withdraw cash from the bank.
That cast some
serious doubt about the financial control over the union’s
finances. It concluded that the union does not
have proper control of
expenditure.
[14]
With regard to the premises of the union, the report had regard to a
copy of the lease agreement entered into between the union
and Jeany
Enterprises (Pty) Ltd for the months of December 2016 and January
2017. However, it was also established on verification
that the union
had moved to a different location.
[15]
In conclusion, it was recommended that the application for
registration be refused.
The Registrar’s
decision
[16]
The Registrar wrote to the union on 8 May 2017 and said:
“
Your
application for registration of a trade union dated received [
sic
]
on 7 February 2017 [
sic
].
You
are hereby notified that your application was perused and found not
acceptable for approval and is turned down on the following
grounds:
·
There was no proper formation of the trade union;
·
Union do [
sic
] not have members; and
·
No financial accountability could be traced in the minutes of the
meeting.
This
is therefore not a genuine trade union as envisaged in the Act.
Consequently
you are advised that the application is refused with effect from 8
May 2017.”
[17]
On 15 May 2017 the union requested reasons for the refusal. The
Registrar responded on 14 June 2017. He referred to the Guidelines
issued by the Minister in terms of s 95(8) in consultation with
NEDLAC. He elaborated on the following criteria contained in the
Guidelines:
17.1
Formation of a trade union
: The Registrar referred to key
aspects, including the number of: the means by which the constitution
of the trade union was drafted
and adopted; and the election of an
executive committee. He noted that only 20 individuals attended the
inaugural meeting on 30
April 2016; that an interim committee appears
to have already been in place before 30 April 2016 and that it was
not clear how
the interim committee was nominated; that the
appointment of the interim committee had no basis in the union’s
own constitution;
and that, effectively, no leadership was elected.
He also noted that the minutes of the meeting of 1 May 2016 and the
agenda were
the same as the one for 30 April 2016, apart from 2
individuals being added to the interim committee; and that 35
individuals signed
the attendance register for the meeting 15 May
2016. The attendance register for 7 May 2016 indicates that only
members of the
interim committee were present during that meeting.
All of these statements are an indication that the meeting of 7 May
2016 was
not a meeting of employees associating together with the
purpose of regulating relations between employers and employees. The
registrar
concluded that the fact that individuals behind the
establishment of the trade union failed to involve members in the
whole process
is a clear indication that the process of establishing
union was flawed. There was no proper formation of the trade union as
required
by the Guidelines.
17.2
Membership of the trade union
: The union claimed to have 121
members, of which 72 were reflected as paid-up members. It submitted
171 signed copies of application
forms for membership. The
application forms reflect membership fees to be “R60 or R90,
whichever is the greater” while
the constitution submitted by
the union provides for a monthly subscription fee not exceeding1,5%
of the member’s basic salary.
When the case official randomly
contacted individuals that appear on the application forms, some
denied having any knowledge of
ALCRU and others claimed to belong to
AMCU. That created doubt that the union has members in good standing.
17.3
Association not for gain:
The Registrar noted that the union
was using an ATM card to withdraw money, which casts some serious
doubts about financial control
by the union. The president of the
union also confirmed during verification that he had the ATM card.
“The availability of
the ATM card indicates that the money can
be withdrawn by anybody, anytime and anywhere. This is unacceptable
as it clearly indicates
that the applicant union does not have proper
financial control and accountability.”
[18]
The Registrar concluded that it is evident that the union does not
have proper control of expenditure and cannot be regarded
as a
genuine trade union as envisaged by the Act. He concluded that there
was no proper formation of a trade union; the union does
not have
members; and there was no financial accountability. He concluded that
it was not a genuine trade union as envisaged by
the Act and
therefore the application for registration was refused.
Grounds of appeal
[19]
The applicant union has raised four grounds of appeal:
19.1
The Registrar erred in concluding that there was no proper formation
of a trade union;
19.2
the Registrar erred and misdirected himself in the minutes of the
meeting on 15 May 2016;
19.3
the Registrar erred in concluding that the union does not have
members; and
19.4
the Registrar erred in concluding that the union does not prove
financial accountability in the minutes of its meetings.
Evaluation
[20]
I shall
consider each of the grounds of appeal in turn. At the outset, it
must be borne in mind that this is a proper appeal in
terms of s 111
of the Act and not a review. This Court must decide whether section
of the registrar was correct, and not merely
whether he acted
reasonably.
[2]
Formation of the trade
union
[21]
The Guidelines provide the following guidelines in clause 7:
“
The
process followed to form trade union can give important indications
as to whether an organisation is a genuine trade union.
Key aspects
of the process that should be examined include –
·
the number of founding members who attended the inaugural meeting(s)
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;
·
the election of an executive committee or council of members and the
election of office bearers.
The
crucial issue that must be addressed is whether the formation of a
trade union involved employees associating with one another
to
establish an organisation to regulate relations with their
employees.”
[22]
The registrar considered the fact that only 20 members (or workers)
attended the meeting of 30 April 2016. And only the
five
members of the “interim structure” attended the inaugural
meeting of 7 May 2016.
[23]
Mr
Serage
submitted that it is clear from the minutes of the
30
th
April meeting “that the individuals who met
were employed by MBT (one company) and they agreed to form a trade
union.”
But that is far from clear. The Registrar correctly
took into account that only 20 workers attended that meeting and
that, apart
from deciding that they needed to organise themselves in
the form of a trade union, the only agreement reached was that to
workers
were identified to “form the interim structure to
assist Mr P Khubeka”.
[24]
The registrar correctly found that the election of an executive
committee was not done in accordance with the union’s
own
constitution. And although the constitution was adopted on 15 May
2016, it appears to have been drafted by the five members
present at
the meeting of 7 May 2016 without any involvement of the members.
[25]
Having considered the evidence before the Registrar, I agree with his
view that the applicant union has not established that
it was formed
with the aim of operating as a genuine trade union. Although the
small number of employees allegedly involved in
its formation cannot
be viewed as a simple numbers game – for example, it is
conceivable that a trade union with 20 members
can have a significant
impact in a small workplace with, say, 30 employees – it is
remarkable that ALCRU claims more than
171 members when only 20
people attended the first meeting. The way in which the constitution
was drafted and adopted also points
to minimal involvement by the
membership. And, as the verification report pointed out, the “interim
committee” appears
to comprise a self-appointed president and
four other individuals who were appointed by a small group of workers
at two subsequent
meetings.
The meeting of 15 May
2016
[26]
The union raises as a ground of appeal that the Registrar did not
consider that, at the meeting of 15 May 2016, the union’s
constitution was “adopted and signed”; that it resolved
to open a bank account; and to have the union registered.
[27]
That meeting was attended by 35 individuals. The minutes reflect that
they did “adopt” the constitution, although
they were not
involved in its drafting. And it was not signed, contrary to Mr
Serage
’s submission: the minutes only reflect that “the
way forward was that the President and the General Secretary are
mandated
to sign it and disclose it when opening the bank account,
furthermore it should be submitted when the union is registered [
sic
]
to the registrar.”
[28]
It is so that the “NEC” signed a “document of
resolution” to open a bank account. But the Registrar
pointed
out that no NEC was properly appointed; and there was no proper
financial control over the use of the bank account, to
the extent
that Mr Khubheka (or anyone else) could simply withdraw cash from an
ATM. That consideration by the Registrar is not
open to appeal.
Membership
[29]
The verification team found that some of those who purported to have
signed application forms for ALCRU did not even know about
the union,
and others claimed to be members of AMCU. Mr
Serage
did not
place any evidence to the contrary before the Registrar or this
Court. I agree with the Registrar that that cast serious
doubt upon
the claimed membership of the union. His consideration of that factor
cannot, in my view, be overturned on appeal.
Financial accountability
[30]
The Registrar noted that the union is using an ATM card to withdraw
money from its bank account which casts serious doubts
upon its
financial control. And the ATM card makes it possible that “money
can be withdrawn by anybody, anytime and anywhere”.
[31]
The Registrar correctly found that the union does not have proper
control of expenditure. The refusal to register the union
on that
additional ground is not open to appeal.
Conclusion
[32]
I agree with the decision of the Registrar. On the documents
submitted by the union, he correctly found that it is not a genuine
trade union and refused to register it. In my view, it is the correct
decision.
[33]
In law and fairness, I do not believe that the union should be held
liable for costs. The formation of trade unions should
not be
discouraged and I do not believe the appeal was frivolous.
Order
The
appeal is dismissed.
Steenkamp
J
APPEARANCES
APPELLANT:
T
M Serage (attorney).
RESPONDENT:
M
Rantho
Instructed
by the state attorney.
[1]
Labour
Relations Act 66 of 1995
.
[2]
IMATU
v MATUSA
(2017)
38
ILJ
1283
(LAC);
MATUSA
v Crouse N.O.
(2015)
36
ILJ
3122
(LC).