Trade union irony in the labour court!


Trade unions – the vanguard of employee rights; viewed by some as the thin line between workplace exploitation or salvation –  are not immune to disputes from within their own ranks.

Every now and then our law reports give us a glimpse into the difficulties organised labour face when having to don the cap of employer or disciplinarian.

Statutory protection

The irony could not have escaped even the most casual observer when the National Entitled Workers Union approached the employment tribunal to argue that, as an employer, it was entitled to fair labour practices.

The tribunal declined to entertain the dispute. The trade union referred the matter to the Labour Court to review and set aside the tribunal ruling. The Labour Court confirmed that the constitutional right to fair labour practices does not extend to employers – only employees may rely on this protection. Employers have other remedies at their disposal and do not require statutory protection of their rights in this regard.

Another trade union approached the Labour Court recently, this time seeking assistance in a dispute with its general secretary. In South African Chemical Workers’ Union and another v Modise the president of the trade union, and the trade union itself, sought to interdict the general secretary from convening a meeting.

Lack of jurisdiction

The Labour Court was created in terms of the Labour Relations Act. Although it has the same status as the high courts, it has no inherent powers – it derives its powers from the LRA.

The court considered the empowering provision in the LRA that allows it to determine disputes between trade unions (or employers’ organisations) and their members. It considered the position of the general secretary within the trade union. The trade union conceded that the general secretary’s membership of the union’s structures was not the same as membership of the trade union itself. The court held that it was not satisfied that the trade union had made a case for the dispute to fall within the empowering provision. The judge dismissed the application for lack of jurisdiction.

Lessons to be learnt from these judgments include that parties approaching the tribunal and court should carefully consider their claims in order to ensure that these fall within the body’s jurisdiction. Even trade unions sometimes experience the difficulties occasioned by managing staff.

If nothing else, this can be a nice conversation-starter during the next round of collective bargaining between business and labour!

Johan Botes | Baker McKenzie | Partner and Head of the Employment and Compensation Practice |  | |




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