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 Grant Ray-Howett of The Labour Consultancy. THIS week, Grant Ray-Howett B.A LLB, of the Labour Consultancy discusses the impact of certain sections in the new Labour Relations Act, dealing with the registration of trade unions, on the employee’s rights. The Adverse effects of S 95 of the Labour Relations Act of 1995.A sufficient amount of time has passed since the promulgation of the new Labour Relations Act (The LRA) to allow us to make informed judgements concerning it’s success and failures. This week, we focus on certain problems, which have been created by the act. The idea for this article originated out of an interview we had with an official from the Department of Labour, who gave us some very interesting insights into some of the problems created by the LRA. This week we shall concentrate on problems created by the sections of the act dealing with the registration of trade unions and employers organizations.Section 95 of the LRA, says that” any trade union may apply to the register for registration if:
It is evident from this section that in order to register as a trade union, certain “weak” formal requirements have to be met, thus making it fairly easy for anyone to register as a trade union. What becomes obvious is that, even if you only have one member but you have a constitution and a unique name, the register has no discretion but to register you. This combined with the lack of sections giving the Department of Labour the power to investigate whether or not an applicant for registration or a registered trade union is bona fide, has produced some adverse effects. Firstly, we have seen a proliferation of trade unions since the advent of the LRA. Statistics provided to me by the Department of Labour show that between December 1995 and December 1996, 35 new unions became registered. This is significant if you compare it to the previous year, in which only 12 new unions registered and although the new LRA only came into force on the 11th of November 1996, the official annual report for by the department of Labour for 1997, attributes the difference mainly to the advent of the new LRA. An anonymous source at the Department of Labour also suggested that the registration figures for the period between December 1996 and December 1997 are likely to be much higher than was previously the case. On the face of it, this might seem innocuous but on closer inspection, the situation is much more sinister. It is common cause that a union’s power to protect its members is a function of the size of its membership. While there has been a mushrooming of trade unions since the new LRA came into force, the pool of actual and potential union members has remained fairly constant throught the same period. This means that more and more unions have to share the same membership pool, which in turn means that each union’s share of the membership pool is getting correspondingly smaller. The effect of this mushrooming is then, the undermining of a union’s collective bargaining power. Thus the provisions in the LRA relating to the registration of trade unions is having the paradoxical effect of undermining the individuals power base in the workplace. Secondly, we have seen the emergence of ‘fly by night’ trade unions. Due to the fact that one has only to meet certain formalities to register combined with the lack of statutory authority to investigate into the substance of a application for registration, a few unscrupulous individuals have used unions as a way of defrauding employees out of money. What typically occurs is the following, these unscrupulous individuals register as a union. As we have seen, they do not even have to have any bona fide members but basically a unique name and a constitution (which one can pick up at any Department of Labour). They are then able to attract members. They take money from members in terms of fees and when a member turns to them for help, they are unavailable for help. The Department of Labour is aware of the existence of such operators but due to the constraints of the new LRA is unable to do much about them. Thus we can see a second way in which the provision relating to the registration of trade unions paradoxically militates against employee’s security in the workplace. S 95(3) of the LRA, which deals with the registration of the employers organizations basically mirrors the requirements needed to register a trade union and like section 95(1) presents it’s own problems. One of the most significant problems, at least from the employee’s perspective, is that it provides a loophole to the limitations put on legal representation at the conciliation stage, by section 135 of the LRA. That section states that at the stage of conciliation:
“ a party to the dispute may only appear in person or be represented by a co-employee or by a member, office bearer or official of that party’s trade union or employers organization…” What many Labour practitioners do is register as an employer’s organization and then appoint themselves as an members, office bearers or officials of that employers organization. Their corporate clients then become members of that organization and hey presto, they cannot be barred from representing their clients in conciliation. As I have already pointed out, this is not bad from the employer’s perspective but it does undermine the whole idea behind section 135. The idea there was to allow the process to be uncluttered by technical legal argument and to prevent prejudice to the employee party, who more often than not is without the means to obtain legal representation. However, given the recent trend at the CCMA to force a settlement under any circumstance, even where the settlement offer is far from right and just, allowing legal representation at conciliation proceedings might not be a bad idea. However, not all is lost, according to a source at the department of Labour, amendments to the new The Labour Relations Act, which will make it harder to register trade unions and give the Department of Labour more control over the whole process, are to be tabled sometime soon. |
