On Wednesday 14 June, the Labour Court in Johannesburg will hear an appeal by the Simunye Workers Forum (SWF) against the Registrar of Labour Relations refusal to register the SWF as a trade union.
The outcome will have a significant bearing on what worker organisations are going to look like in the decades ahead.
The SWF is a trade union of 6600 members, which organises workers known as casual. It has a constitution, it collects membership fees, and it seeks to represent workers at the CCMA and in the relevant Bargaining Councils. Other existing unions have had decades in which they could have organised casual workers, but did not do so.
Instead, casuals were historically, and still are today, seen by trade unions as difficult to organise and so they remain largely un-unionised. This leaves these workers especially exposed to rights violations: casuals are more easily dismissed, they are victimised for exercising basic rights, and women casuals are more frequently sexually harassed or exploited than permanent, unionised workers.
The Registrar of Labour Relations says the SWF is not a genuine union because it does not have office bearer positions. Actually, the SWF 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 is a woman. This ensures that everyone gets a chance to develop skills in meeting procedure, and it also prevents domination by any particular workplace or grouping.
The other reason given by the Industrial Registrar when he refused to register SWF as a union was that the Casual Workers Advice Office (CWAO) helped establish it, and therefore the SWF is not independent. Yet this is not unusual in South African labour history - the General Workers Union grew out of the Western Province Advice Bureau in Cape Town, the Metal and Allied Workers Union (later NUMSA) grew out of the Industrial Aid Society, and the Combined Small Factory Workers Union grew out of the Alexandra Workers Advice Office. There are many non-profit labour service organisations like the CWAO who still partner with unions today to do research, education and other work as requested by the union.
The SWF specifically included a clause on its independence in its 2016 constitution: Simunye Workers Forum is independent of the Casual Workers Advice Office (CWAO), but shares a relationship with the CWAO based on common principles and values. CWAO provides support to Simunye Workers Forum.
The SWF asked to meet the Registrar to discuss this with him. He refused to meet the SWF. He said it was pointless for the SWF to explain to him why it wanted to be a better kind of union because he insists that there can be only one type of union - the type with office bearers.
The impact of the Registrars refusal to register SWF as a union is severe. It leaves thousands of casual workers without any representation in the CCMA or Bargaining Councils. It means that bosses can continue refuse to negotiate any aspect of working conditions with the SWF (on the grounds that it is not a union). It effectively means that casual workers have to negotiate everything individually with their bosses. Many casual workers working on day to day contracts (albeit for the same employer, often for years without interruption). Any attempt by individual casual workers to negotiate pay or working conditions simply means that the boss tells the labour broker that they wont hire that worker again (victimisation).
The CWAO, which was a tiny advice office for individual casual workers, has not been able to keep up with the demand for representation since the Labour Relations Act amendments came into effect on 1 January 2015. (These amendments stipulate that labour broker workers who have been placed at client companies to perform ongoing, and not genuinely temporary work would, after three months, be deemed to be employed directly by the client and entitled to treatment no less favourable than enjoyed by the clients employees).
Once these new rights came into effect, the trade union movement proved ineffective in enforcing proper implementation. The employers got together and decided to resist the new amendments in an unprecedented show of defiance to the law. Employers simply refused to make casual workers permanent. This resulted in thousands of casual workers requesting assistance from the CWAO to be made permanent. The CWAO employed more staff, and expanded its office space - but it was overwhelmed by the sheer volume of disputes being brought to our offices by precarious workers.
From 2015, these precarious workers began to meet every Saturday morning in the CWAO hall. They could not join the CWAO which is a non-profit advice office and not a membership organisation. Having been let down by trade unions in the past, they decided to associate as a Forum instead of a union. They named it the Simunye Workers Forum.
In mid-2018, the Constitutional Court confirmed that the client company is the sole employer of labour broker workers placed for more than three months. But even this judgement from the apex court did not help casual workers to claim their legal right to be permanent because, again, employers refused to comply and continued to hire workers on a casual basis.
“When Simunye members tried to talk to their bosses, they were told that because they are not a registered union, the bosses do not need to recognise them, and they wont talk to them“ says one of SWFs founder members, Vuyelwa Magidela, a deponent to an attached affidavit for this case
This left workers who are known as casual at an impasse - they were deemed to be permanent under the law, but their employers were flouting the law and continuing to employ them as casuals. At the same time, they were left without any representation when they tried to use the correct channels (CCMA, Bargaining Councils) to have the law implemented because their only association, the SWF, was not denied registration as a trade union, and often barred from representing them.
Thus, the SWF decided to register as a union. It is not fair and reasonable for the registrar to refuse SWF the right to register as a trade union, just because it is trying to be a more democratic and accountable union.
The SWF has already been functioning as a union for some time. It succeeded in getting more than 12 500 labour broker workers at companies large and small (including Dischem, Barlow Rand, Kelloggs, Takealot, Simba and Heineken) made permanent employees. But in other workplaces, bosses have simply refused to negotiate with SWF on the grounds that it is not a registered trade union.
The SWF believes it has adequately explained that it is a different kind of trade union from those with which the Registrar might be familiar, but a genuine trade union nonetheless.
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Category: MEDIA COVERAGE | DISPUTES