UPUSA v Registrar of Labour Relations ;  2 BLLR 201; (2010) 21 ILJ 198 (J2178/09, 15/10/2009) per Van Niekerk J.
Assume that a trade union has successfully registered itself as a corporate body with the Department of Labour but fails to comply with the statutory requirements and the Registrar of Labour Relations cancels its registration. How can the trade union challenge the Registrar’s decision? What if an employer terminates a collective agreement with that trade union pending the outcome of any appeal? To what extent is the Registrar accountable to the trade union members and the public? What degree of diligence can be expected from the Registrar to enforce the statutory requirements?
Recently Van Niekerk J in UPUSA v Registrar of Labour Relations (Labour Court case J 2178/09, dated 15/10/2009) refused to grant the trade union’s urgent application seeking interim relief in respect of such a decision pending the outcome of an appeal lodged by UPSA in terms of s 111(3) of the Labour Relations Act 66/1995 [LRA] even though some employers had already terminated collective agreements with UPUSA.
Van Niekerk J held that “UPUSA has failed to satisfy the threshold requirement of a reasonable possibility that an appeal against the Registrar’s decision might succeed”. In paragraph  of his judgment Van Niekerk J explained why registered trade unions need to meet the requirements of the LRA:
“Trade unions are public institutions, not private businesses. The act of registration confers many benefits on those trade unions that seek to be registered. But these benefits come at the price of submission to the reporting requirements established by section 100 of the LRA, all of the requirements that are intended to provide a guarantee to union members that their membership subscriptions have been utilised to further their interests. A failure by a registered trade union to comply with section 100 and to keep books of account and records to the standard required by section 98 undermines this statutory guarantee. Ultimately, it is the Registrar who is the underwriter of this warranty, and like all underwriters, the Registrar must protect the general interest at the expense of the particular when this is necessary. The Registrar is accountable to the public as a whole should a registered trade union (or employers’ organisation, for that matter) fail to implement the required financial and administrative controls, and a degree of due diligence by the Registrar in enforcing the relevant requirements of the Act is therefore necessary”.
Section 231 of the LRA provides that a “trade union means an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers’ organisations”.
Chapter VI of the LRA regulates trade unions and employers organisations and allows any trade union to apply to the registrar of labour relations, an officer of the Department of Labour designated as such by the Minister of Labour [Registrar]. The trade union must have an acceptable name, adopt a suitable constitution, have an address in South Africa and be independent in the sense that it is not under the control of any employer and free from any interference or influence of any employer. The constitution of a trade union must state that it is an association not for gain [LRA s 95(5)(a)].
Registered trade unions have various privileges in terms of the LRA. For instance they become corporate bodies and can enter into valid collective agreements and they have the right to exercise certain organisation rights. But there are important duties as well; inter alia keeping books and records of income, expenditure, assets & liabilities, preparing financial statements, arranging for annual audits, making financial statements & reports available to members. In addition every registered trade union must provide the Registrar annually with a certified statement of its members & a certified copy of the auditor’s report & financial statements [LRA s 100].
Section 106 of the LRA, as amended in 2002, allows the Registrar to cancel the registration of any trade union, subject to certain conditions. Section 111 of the LRA provides for appeals against any decision to cancel the registration.
The Registrar maintained that UPUSA had failed to comply with its statutory obligations and after complying with the statutory procedures deregistered UPUSA on 2/10/2009. The interim relief sought to prevent the Registrar from publishing a notice to that effect on 16/10/2009.