The Labour Relations Act establishes a process for trade unions to be registered with the Registrar of Labour Relations. This Act also entitles the Registrar to cancel the registration of a trade union for a host of reasons and to remove that trade union's name from the register.

What is the effect of deregistration?

In the recent Labour Court decision of Unica Plastic Moulders CC v National Union of South African Workers the Labour Court was called upon to consider the position and rights of a deregistered trade union.

The facts of this case were that NUSAW had a number of employees as its members who worked for Unica. NUSAW was deregistered by the Registrar of Labour Relations and as a result its name was removed from the Register of Trade Unions maintained by the Registrar's office. When the trade union sought to bargain on behalf of its members and seek organisational rights, including the right to meet with its members at the Unica's premises, Unica went off to Court seeking an urgent interdict to restrain the trade union from "interfering with its business and its employees and from approaching or being within 50m of its premises and from recruiting and writing letters to Unica Plastics".

Prior to the interdict coming before the Court, NUSAW lodged an appeal against the Registrar's decision to de-register it.

Legal position

The Court looked at the various rights that a trade union has and considered the impact that deregistration would have on these rights. It looked firstly at the organisational rights that the Labour Relations Act creates for trade unions. These rights relate mainly to trade union access to the workplace, its entitlement to receive subscriptions from its members via the employer and the rights of shopstewards to be granted leave by their employer to attend to trade union activities.

The court looked at the wording of the relevant provisions in the LRA and concluded that these rights can only be enjoyed by "registered" trade unions. In fact as far as organisational rights are concerned the LRA makes reference to "registered trade unions" being given organisational rights.

As such, it was found that NUSAW was precluded from demanding organisational rights from Unica because it had been deregistered. The Court was not convinced that the appeal that NUSAW had lodged against its deregistration entitled it on any account to claim organisational rights. The Court also went on to state that deregistered trade unions are not entitled to represent their employee members before the CCMA, any Bargaining Council or in the Labour Court.

But this was not the end of the matter. In dealing with the actual situation that had resulted in Unica coming to Court seeking an interdict, the Court considered whether a deregistered trade union is prohibited from recruiting members or negotiating on their behalf or for that matter calling for them to strike.

The decision of the court

While the Court stated that NUSAW could not exercise organisational rights or appear at any Court forum on behalf of its members, it found that there was nothing in the LRA that stopped the deregistered union from recruiting employees, bargaining wages on their behalf with Unica or even engaging in a strike.

On this basis the Court dismissed the application for an interdict by Unica.

What does this mean?

In summary this decision clarifies the position of the unregistered and deregistered trade union. Contrary to popular belief trade unions do not need to be registered to enjoy some of the rights created for them in the Labour Relations Act. They can, for example, engage in collective bargaining and can even compel an employer with the threat of strike action to engage with them in wage negotiations.

There are obviously certain activities which they may not carry out and these include the exercise of any organisational rights as this is expressly prohibited by the LRA.

This case has also made it very clear that strike action called for by an unregistered trade union is not necessarily illegal or unprotected simply because the trade union is unregistered.