Download PDFThe Simunye Workers Forum (SWF) and Casual Workers’ Advice Office (CWAO) are heartened that Labour Court judge Andre van Niekerk has dismissed with costs the Registrar of Labour Relations’ application for leave to appeal his ruling that the Registrar must register the SWF as a trade union.
The Department of Employment and Labour (DEL) must stop using the tax money of the working class to bring pointless court cases that it has no chance of winning – cases that seem to have the sole aim of preventing workers from organising.
This is the very same Department that is completely unable to enforce the Basic Conditions of Employment Act and basic health and safety standards on farms because it says it doesn’t have the funding to hire Labour Inspectors. The DEL is also failing to implement the National Minimum Wage Act, with tens of thousands of workers, potentially more, being paid less than the minimum wage.
Instead of wasting money on challenging small organisations made up of vulnerable, casual workers, the DEL should hire more Labour Inspectors and combat the internal corruption in the Unemployment Insurance Fund and Compensation Funds.
Key points in judge van Niekerk’s ruling (attached):
* The Registrar was wrong to assert that another court would rule that section 95 of the LRA is so restrictive that it limits workers to joining only unions of a certain type (those unions that do not elect rotating steering committees but only elect a tiny group of leaders who remain in leadership positions for three years). Judge van Niekerk points out that the courts have already ruled that the rights of workers to freely associate “must be interpreted generously”.
* The Registrar had insisted that SWF’s constitution does not comply with s95 of the LRA, because it does not establish the office of a secretary. The Court held that this was incorrect: SWF’s constitution does indeed establish the office of a secretary. Insofar as the Registrar contended that a secretary must be a permanent General
Secretary who manages the union’s administration (instead of a rotating role, elected at each Meeting), the Court held that the SWF constitution provided for the Standing Committee to administer the union, subject to the overall direction and control of Meetings. SWF “is entitled to make that choice”.
* The Registrar had complained that the LRA treats unions equally and does not make provision for ‘traditional’ or ‘new’ forms. The Court agreed that all unions are treated equally, but this does not mean that the Registrar is entitled to refuse to register a union that has chosen to adopt organisational structures which do not replicate those of the unions which are currently registered.
* The Registrar claimed that the Court had measured the union’s freedom of association rights against the SA Constitution instead of the LRA, but the Court held that here again he was wrong: Section 8 of the LRA gives full expression to the constitutional rights to freedom of association.
Background to the case:
In June 2022, the Registrar rejected the SWF’s application to register as a union for reasons that have no validity in law, except his own insistence that it did not look like traditional trade unions.
The SWF challenged this in the Labour Court and won the case in June 2023, with judge van Niekerk ruling that the Registrar must register SWF within 14 days. The Registrar then brought a fruitless and wasteful application for leave to appeal this ruling last month, which he has now, again, lost.
The SWF has consciously resolved not to have positions such as general secretary, president, and deputy president. Instead, it has a Standing Committee which takes minutes of all meetings, keeps an attendance register, and controls the collection and spending of membership fees.
Each meeting elects a different chairperson and a secretary, at least one of whom must be a woman. This ensures that everyone gets a chance to develop skills in meeting procedures and prevents domination by any particular workplace or grouping and minimises the likelihood of corruption.
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For comment, please call:
SWF – Vuyelwa Magidela – 076 154 3813
CWAO – Sydney Moshoaliba on 078 562 1942
This press statement was released by Simunye Workers Forum & Casual Workers Advice Office on 15 August 2023.
