When is a Workers Forum a Union?

Simunye Workers Forum v Registrar of Labour Relations (J1375/2022, 21 June 2023)

Written By of Cowan-Harper-Madikizela Attorneys

Simunye Workers Forum (‘SWF’) initially operated as an unregistered trade union rooted in a community-based advice office, the Casual Workers Advice Office (‘CWAO’). However, in 2020 SWF reconsidered its position and adopted a constitution, approached the Registrar of the Labour Relations Act (‘the Registrar’) and submitted its application for registration as a Union under the Labour Relations Act (‘the LRA’).

The Registrar rejected SWF’s application on the basis that the SWF was not a ‘genuine’ trade union and its Constitution did not comply with several requirements set out in section 95 of the LRA.

SWF appealed the Registrar’s decision to the Labour Court, arguing that the Registrar had erred in concluding that it is not a genuine trade union.

The Labour Court evaluated the requirements for registration of a trade union under the LRA and found that, in summary, those requirements entailed the following:

  • A name that does not resemble that of another Union when in its shortened form, which is likely to confuse or mislead;
  • A constitution which complies with the requirements of the LRA;
  • An address within the Republic of South Africa;
  • Independence from any employer; and
  • Genuineness, which is to be measured against the guidelines issued by the Minister of Employment & Labour.

The Court found that if SWF met these requirements, the Registrar was obliged to register it and that, in accordance with international standards, the Registrar has no discretion regarding this issue.

The Court also found that section 95 of the LRA must be interpreted and applied in a manner so as to give effect to Convention 87 of the International Labour Organisation. This was imperative to give effect to the constitutional right to freedom of association. Importantly, the Labour Court found that the guidelines published under section 95 of the LRA are not peremptory and are intended to assist the Registrar in deciding the issue of genuineness and are not to be applied strictly. The Registrar applied a checklist approach to the determination, which was unnecessary.

The Court found that the Registrar misunderstood the meaning of genuineness and disagreed with the Registrar’s consideration of the collaborative nature of the relationship between the CWAO and SWF. It was common cause that the SWF was not in the direct or indirect control of CWAO, as CWAO is not an employee or employer organisation.

Furthermore, the Court highlighted that many trade unions in the past have been brought into existence by people who were not employees but social activists, academics, or politically motivated individuals. Consequently, the Labour Court found that nowhere in the LRA does it provide that trade unions are barred from obtaining services from or working in collaboration with community advice offices.

Of particular importance was the Court’s finding that the SWF’s organisational structure, albeit different from that of a traditional trade union, did not preclude it from registration under the LRA.

It said as follows:

“[38] To the extent the registrar’s concerns are motivated by the appellant’s organisational structure, while it is correct that the structure is unique, that is not in itself a basis to reject the application. The emergence of trade unions that eschew traditional trade union structures is inevitable. Since the LRA was brought into operation in 1995, the labour market has changed radically. Workforces, once homogenous, have fragmented and segmented into core and marginal groups where new, less secure forms of work have emerged .... New forms of worker organisation will inevitably emerge to meet these challenges and better serve the interests of the more vulnerable. The fact that the appellant has elected not to make provision on its constitution for the employment of officials or the election of shop stewards in the conventional sense represent conscious choices by the appellant’s members, informed by their prior experience regarding trade union governance. Their autonomy must be respected. The registrar is not a gatekeeper for traditional forms of trade union organisation, nor is it his function to question the wisdom of the appellant’s choices.”

The Registrar, having had its decision overturned by the Labour Court, sought leave to appeal. This application was dismissed with costs on 14 August 2023. It is unclear whether a petition for leave would serve any purpose.

The judgment acknowledges the changing nature of worker representation in our society. It is our view that the judgment will not ‘open the floodgates’ to the registration of atypical worker representation, and much less will it signal the demise of traditional unions. The Court in this case did no more than interpret (and even restate) various aspects of our law as they pertain to the registration of trade unions. Any applications for registration of Unions must, of necessity, be considered against the requirements of section 95 of the LRA and the guidelines promulgated thereunder.

Neil Coetzer

Neil Coetzer
Head of Employment

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