As more and more independent trade unions arise and the country faces ongoing retrenchments, the business of trade unions has been under threat.
It should be noted that trade unions and their members are specifically granted rights in terms of the Constitution and our labour law. These rights are curtailed through legislation and regulations.
First, for a trade union to be effective it must be registered with the Department of Employment and Labour.
Second, the trade unions would have to obtain sufficient representativity at the workplace to access certain rights and duties.
Third, one issue which has been in dispute, a trade union could only represent its members and those members must be registered within the scope of the trade union constitution.
The being said, numerous organisations are desperately trying to parade as trade unions and trying to represent employees under the guise of a quasi-trade union.
An obvious example of this is the labour desk of the EFF political party which often writes to employers demanding access to meetings, to documents and representation.
The Department of Employment and Labour has denied rights to all of these sham trade unions. The bullying tactics of these quasi-trade unions are felt across the country and in almost every single industry.
Employers are warned not to participate in discussions of this nature. There are also certain labour consultancies purporting to have the right to represent employees.
These labour consultancies even try to represent workers at the Commission for Conciliation, Mediation and Arbitration (CCMA) and go as far as trying to appear at the Labour Court.
Once again, none of this is acceptable and all the formal labour institutions have rejected it.
It should be said that properly registered and resourced trade unions have played a successful and enhancing role in the labour arena. I have said in a previous column that many of the trade unions and, in particular, those under the Cosatu umbrella, have been partly to blame for the plethora of new independent trade unions and breakaway trade unions.
The reason for this is that the union movement is not paying enough attention to the workers’ complaints and demands. This was reported in 2012 by Patrick Craven who was then the Cosatu’s national spokesperson.
In Craven’s book The Battle for Cosatu, this sentiment was reiterated.
Trade union umbrella bodies and in particular Cosatu seem to spend a lot of time and effort pursuing political goals as opposed to the “bread-and-butter issues” representing workers at the workplace. This issue of the trade unions moving away from workerist issues can be seen clearly in the statements coming out of Cosatu about the Government of National Unity.
Another important issue has been the early principle of “One industry, one Union” of Cosatu. This principle has been undermined in recent years and trade unions, desperate to keep their membership high, have been trying to recruit in almost every single industry. The falling numbers and failing influence of the trade unions is taking its toll.
In a very interesting and all-important court case in the Constitutional Court (Case CCT188-22) acting Judge Schippers has declared that the admission of trade union members outside the registered scope of that trade union was invalid. Therefore, that union representing workers not in their registered scope is declared outside the law. In other words, trade unions cannot represent employees in proceedings when the workers belong to an industry outside the scope of registration of that union.
In this court case, the National Union of Metalworkers of SA (Numsa) tried to represent workers employed by a company which manufactures and distributes animal feeds. In essence, the court found that the employees were not eligible for membership for the simple reason that they were employed outside the registered scope of that trade union.
The reality is that a trade union is a voluntary association which is bound by its own constitution. Unions have no power outside the document of their constitution.
In essence, if the members are in another industry outside the scope of the trade union, that trade union has no authority to represent the employees and has no legal standing in proceedings.
The court said that employees have a right to join and be represented by any trade union whose registered scope permits them to be members.
In essence, both employees and employers are hereby alerted to the fact that the union at the workplace must have its constitution defined to include that workplace.
* Michael Bagraim is a veteran labour lawyer.
** The views expressed here are not necessarily those of Independent Media.
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