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Labour court ruling may prompt more to join workers forums

Publication: Business Day Live

The judgment overturns a decision by the registrar of trade unions, who refused to register the forum as a trade union

In a judgment that could encourage more workers to join small and less formalised labour organisations, the labour court has ordered the registration of Simunye Workers Forum (SWF).

The recent ruling by labour court judge Andre van Niekerk means SWF, which represents just more than 6,000 casual workers, can now formally negotiate wages, handle disputes and appear before the Commission for Conciliation, Mediation and Arbitration (CCMA).

The judgment overturns a decision by the registrar of trade unions, Lehlohonolo Molefe, who refused to register the forum as a trade union on the grounds that it did not meet the requirements of the Labour Relations Act.

In a statement, the SWF said it had a constitution, it collected membership fees, and it sought to represent workers who are largely ignored by traditional unions. "Casuals" are more vulnerable to dismissal, victimisation and sexual harassment.

The forum was formed in 2015 with the help of the Casual Workers Advice Office, a nonprofit. It applied for registration in 2020 but was rejected by the registrar.

The judge said the SWF had a "unique" organisational model that aimed to keep the decisionmaking power in the hands of its members and avoid any personal financial interest.

Membership fees are fixed at R12.50 a month. Ordinary meetings are convened when necessary, and decisions are taken by majority vote.

Van Niekerk said the registrar was wrong to question the SWF’s independence from the Casual Workers Advice Office or its legitimacy as a trade union.

"The registrar is not the gatekeeper for traditional forms of trade union organisations, nor is it his function to question the wisdom of the SWF’s choices."

The judge said it had a compliant constitution and an address in SA. It was also independent of any employer or employer organisation.

"It is a genuine trade union. It is not a vehicle for enriching individuals," he said. Van Niekerk ordered the registrar to register the forum as a trade union within 14 days and ordered the registrar to pay some of the costs.

"I think the judge is correct," labour lawyer and DA MP Michael Bagraim said. "The whole idea is to have fairness and justice and representation. We are trying to open up the labour market and deregulate it as much as possible, but unfortunately the labour department is pulling the other way and trying to regulate it as much as possible."

Bagraim said the registrar was there to ensure the forum was legitimate and "not get involved in the politics of it, and basically the niceties such as its constitution, and that’s what they are doing. It’s like saying ‘your toilet paper is not double-ply so we are not going to register you.’ That’s how silly they are."

Labour consultant Tony Healy said: "The one comment I can make is: it does appear [there is] evidence of frustration, pockets of frustration, among workers who are becoming disenchanted with the established, traditional unions, "insofar as they feel [their needs] are not being met because there is a greater focus on socioeconomic and political union agendas."

Healy said the judgment could potentially result in "more applications of this nature being made to the registrar".

The SWF said it succeeded in getting more than 12,500 labour broker workers at companies 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."

When contacted for comment, Molefe said: "The only comment … is that we are studying the judgment and will decide if we should appeal or not." "

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