CHAPTER SIX TRADE UNIONS AND EMPLOYERS' ORGANISATIONS (ss 95-106)

95. Requirements for registration of trade unions or employers' organisations

Any trade union may apply to the registrar for registration if-

it has adopted a name that meets the requirements of subsection (4);

it has adopted a constitution that meets the requirements of subsections (5) and (6);

it has an address in the Republic; and

it is independent.

A trade union is independent if-

it is not under the direct or indirect control of any employer or employers' organisation; and

it is free of any interference or influence of any kind from any employer or employers' organisation.

Any employers' organisation may apply to the registrar for registration if-

it has adopted a name that meets the requirements of subsection (4);

it has adopted a constitution that meets the requirements of subsections (5) and (6), and

it has an address in the Republic.

Any trade union or employers' organisation that intends to register may not have a name or shortened form of the name that so closely resembles the name or shortened form of the name of another trade union or employers' organisation that it is likely to mislead or cause confusion.

The constitution of any trade union or employers' organisation that intends to register must-

state that the trade union or employers' organisation is an association not for gain;

prescribe qualifications for, and admission to, membership;

establish the circumstances in which a member will no longer be entitled to the benefits of membership;

provide for the termination of membership;

provide for appeals against loss of the benefits of membership or against termination of membership, prescribe a procedure for those appeals and determine the body to which those appeals may be made;

provide for membership fees and the method for determining membership fees and other payments by members;

prescribe rules for the convening and conducting of meetings of members and meetings of representatives of members, including the quorum required for, and the minutes to be kept of, those meetings;

establish the manner in which decisions are to be made;

establish the office of secretary and define its functions;

provide for other office-bearers, officials and, in the case of a trade union, trade union representatives, and define their respective functions;

prescribe a procedure for nominating or electing office-bearers and, in the case of a trade union, trade union representatives;

prescribe a procedure for appointing, or nominating and electing, officials;

establish the circumstances and manner in which office-bearers, officials and, in the case of a trade union, trade union representatives, may be removed from office;

provide for appeals against removal from office of office-bearers, officials and, in the case of a trade union, trade union representatives, prescribe a procedure for those appeals and determine the body to which those appeals may be made;

establish the circumstances and manner in which a ballot must be conducted;

provide that the trade union or employers' organisation before calling a strike or lock-out, must conduct a ballot of those of its members in respect of whom it intends to call the strike or lock-out;

provide that members of the trade union or employers' organisation may not be disciplined or have their membership terminated for failure or refusal to participate in a strike or lock-out if-

no ballot was held about the strike or lock-out; or

a ballot was held but a majority of the members who voted did not vote in favour of the strike or lock-out;

provide for banking and investing its money;

establish the purposes for which its money may be used;

provide for acquiring and controlling property;

determine a date for the end of its financial year;

prescribe a procedure for changing its constitution; and

prescribe a procedure by which it may resolve to wind up.

The constitution of any trade union or employers' organisation which intends to register may not include any provision that discriminates directly or indirectly against any person on the grounds of race or sex.

The registrar must not register a trade union or an employers' organisation unless the registrar is satisfied that the applicant is a genuine trade union or a genuine employers' organisation.

[Sub-s. (7) added by s. 18 of Act No. 12 of 2002.]

The Minister, after consultation with NEDLAC, may by notice in the Government Gazette publish guidelines to be applied by the registrar in determining whether an applicant is a genuine trade union or a genuine employers' organisation and guidelines for the system of voting as contemplated in subsection 9.

For the purpose of subsection (5), 'ballot' includes any system of voting by members that is recorded and in secret.

96. Registration of trade unions or employers' organisations

Any trade union or employers' organisation may apply for registration by submitting to the registrar-

a prescribed form that has been properly completed;

a copy of its constitution; and

any other information that may assist the registrar to determine whether or not the trade union or employers' organisation meets the requirements for registration.

The registrar may require further information in support of the application.

The registrar-

must consider the application and any further information provided by the applicant; and

if satisfied that the applicant meets the requirements for registration, must register the applicant by entering the applicant's name in the register of trade unions or the register of employers' organisations.

If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar-

must send the applicant a written notice of the decision and the reasons for that decision; and

in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements.

If, within that 30-day period, the applicant meets the requirements for registration, the registrar must register the applicant by entering the applicant's name in the appropriate register.

If, within that 30-day period, an applicant has attempted to meet the requirements for registration but the registrar concludes that the applicant has failed to do so, the registrar must-

refuse to register the applicant; and

notify the applicant in writing of that decision.

After registering the applicant, the registrar must-

issue a certificate of registration in the applicant's name; and

send the certificate and a certified copy of the registered constitution to the applicant.

97. Effect of registration of trade union or employers' organisation

A certificate of registration is sufficient proof that a registered trade union or registered employers' organisation is a body corporate.

The fact that a person is a member of a registered trade union or a registered employers' organisation does not make that person liable for any of the obligations or liabilities of the trade union or employers' organisation.

A member, office-bearer or official of a registered trade union or a registered employers' organisation or, in the case of a trade union, a trade union representative is not personally liable for any loss suffered by any person as a result of an act performed or omitted in good faith by the member, office-bearer, official or trade union representative while performing their functions for the trade union or employers' organisation.

Service of any document directed to a registered trade union or employers' organisation at the address most recently provided to the registrar will be for all purposes service of that document on that trade union or employers' organisation.

98. Accounting records and audits

Every registered trade union and every registered employers' organisation must, to the standards of generally accepted accounting practice, principles and procedures-

keep books and records of its income, expenditure, assets and liabilities; and

within six months after the end of each financial year, prepare financial statements, including at least-

a statement of income and expenditure for the previous financial year; and

a balance sheet showing its assets, liabilities and financial position as at the end of the previous financial year.

Every registered trade union and every registered employers' organisation must arrange for an annual audit of its books and records of account and its financial statements by an auditor who must-

conduct the audit in accordance with generally accepted auditing standards; and

report in writing to the trade union or employers' organisation and in that report-

express an opinion as to whether or not the trade union or employers' organisation has complied with those provisions of its constitution relating to financial matters; and

if the trade union is a party to an agency shop agreement referred to in section 25 or a closed shop agreement referred to in section 26 express an opinion as to whether or not the trade union has complied with the provisions of those sections.

Every registered trade union and every registered employers' organisation must-

make the financial statements and the auditor's report available to its members for inspection; and

submit those statements and the auditor's report to a meeting or meetings of its members or their representatives as provided for in its constitution.

Every registered trade union and every registered employers' organisation must preserve each of its books of account, supporting vouchers, records of subscriptions or levies paid by its members, income and expenditure statements, balance sheets, and auditor's reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.

99. Duty to keep records
In addition to the records required by section 98, every registered trade union and every registered employers' organisation must keep-

a list of its members;

the attendance register, minutes or any other prescribed record of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate; and

the ballot papers or any documentary or electronic record of the ballot for a period of three years from the date of every ballot.

100. Duty to provide information to registrar
Every registered trade union and every registered employers' organisation must provide to the registrar-

by 31 March each year, a statement, certified by the secretary that it accords with its records, showing the number of members as at 31 December of the previous year and any other related details that may be required by the registrar;

within 30 days of receipt of its auditor's report, a certified copy of that report and of the financial statements;

within 30 days of receipt of a written request by the registrar, an explanation of anything relating to the statement of membership, the auditor's report or the financial statements;

within 30 days of any appointment or election of its national office-bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office-bearers; and

30 days before a new address for service of documents will take effect, notice of that change of address.

the records referred to in section 99.

101. Changing constitution or name of registered trade unions or employers' organisations

A registered trade union or a registered employers' organisation may resolve to change or replace its constitution.

The registered trade union or the registered employers' organisation must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution.

The registrar must-

register the changed or new constitution if it meets the requirements for registration; and

send the registered trade union or registered employers' organisation a copy of the resolution endorsed by the registrar, certifying that the change or replacement has been registered.

The changed or new constitution takes effect from the date of the registrar's certification.

A registered trade union or registered employers' organisation may resolve to change its name.

The registered trade union or registered employers' organisation must send the registrar a copy of the resolution and the original of its current certificate of registration.

If the new name of the trade union or employers' organisation meets the requirements of section 95 (4),* the registrar must-

*These are the requirements relating to the name of a trade union or employers' organisation to be registered.

enter the new name in the appropriate register and issue a certificate of registration in the new name of the trade union or employers' organisation;

remove the old name from that register and cancel the earlier certificate of registration; and

send the new certificate to the trade union or employers' organisation.

The new name takes effect from the date that the registrar enters it in the appropriate register.

102. Amalgamation of trade unions or employers' organisations

Any registered-

trade union may resolve to amalgamate with one or more other trade unions, whether or not those other trade unions are registered; and

employers' organisation may resolve to amalgamate with one or more other employers' organisations, whether or not those other employers' organisations are registered.

The amalgamating trade unions or amalgamating employers' organisations may apply to the registrar for registration of the amalgamated trade union or amalgamated employers' organisation, even if any of the amalgamating trade unions or amalgamating employers' organisations is itself already registered, and the registrar must treat the application as an application in terms of section 96.

After the registrar has registered the amalgamated trade union or amalgamated employers' organisation the registrar must cancel the registration of each of the amalgamating trade unions or amalgamating employers' organisations by removing their names from the appropriate register.

The registration of an amalgamated trade union or an amalgamated employers' organisation takes effect from the date that the registrar enters its name in the appropriate register.

When the registrar has registered an amalgamated trade union or amalgamated employers' organisation-

all the assets, rights, obligations and liabilities of the amalgamating trade unions or the amalgamating employers' organisations devolve upon and vest in the amalgamated trade union or amalgamated employers' organisation; and

the amalgamated trade union or amalgamated employers' organisation succeeds the amalgamating trade unions or the amalgamating employers' organisations in respect of-

any right that the amalgamating trade union or the amalgamating employers' organisations enjoyed;

any fund established in terms of this Act or any other law;

any arbitration award or court order;

any collective agreement or other agreement;

membership of any council; and

any written authorisation by a member for the periodic deduction of levies or subscriptions due to the amalgamating trade unions or amalgamating employers' organisations.

103. Winding-up of trade unions or employers' organisations

The Labour Court may order a trade union or employers' organisation to be wound up if-

the trade union or employers' organisation has resolved to wind-up its affairs and has applied to the Court for an order giving effect to that resolution; or

the registrar or any member of the trade union or employers' organisation has applied to the Court for its winding up and the Court is satisfied that the trade union or employers' organisation for some reason that cannot be remedied is unable to continue to function.

[Sub-s. (1) substituted by s. 19 (b) of Act No. 12 of 2002.]

1A. If the registrar has cancelled the registration of a trade union or employers' organisation in terms of section 106 (2A), any person opposing its winding-up is required to prove that the trade union or employers' organisation is able to continue to function.

[Sub-s. (1A) inserted by s. 19 (c) of Act No. 12 of 2002.]

If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must-

consider those interests before deciding whether or not to grant the order applied for; and

if it grants the order applied for, include provisions in the order disposing of each of those interests.

In granting an order in terms of subsection (1), the Labour Court may appoint a suitable person as liquidator, on appropriate conditions.

[Sub-s. (3) amended by s. 30 of Act No. 42 of 1996 (English text only).]



The registrar of the Labour Court must determine the liquidator's fees.

The Labour Court, in chambers, may review the determination of the registrar of the Labour Court.

The liquidator's fees are a first charge against the assets of the trade union or employers' organisation.

If, after all the liabilities of the trade union or employers' organisation have been discharged, any assets remain which cannot be disposed of in accordance with the constitution of that trade union or employers' organisation, the liquidator must realise those assets and pay the proceeds to the Commission for its own use.

[Sub-s. (5) substituted by s. 19 (d) of Act No. 12 of 2002.]



The Labour Court may direct that the costs of the registrar or any other person who has brought an application in terms of subsection (1) (b) be paid from the assets of the trade union or employers' organisation.

Any costs in terms of paragraph (a) rank concurrently with the liquidator's fees.

[S. 103 amended by s. 19 (a) of Act No. 12 of 2002. Sub-s. (6) added by s. 19 (e) of Act No. 12 of 2002.]

103A. Appointment of administrator

The Labour Court may order that a suitable person, who may be a Commissioner, be appointed to administer a trade union or employers' organisation on such conditions as the Court may determine if the-

Court is satisfied that it is just and equitable to do so; and

trade union or employers' organisation has resolved that an administrator be appointed and has applied to the Court for an order to give effect to that resolution; or

registrar has applied to the Court to appoint an administrator.

Without limiting the generality of subsection (1)(a), it may be just and equitable to make an order in terms of subsection (1) if-

the trade union or employers' organisation fails materially to perform its functions; or

there is serious mismanagement of the finances of the trade union or employers' organisation.

If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must consider their interests before deciding whether or not to grant the order.



The registrar of the Labour Court must determine the administrator's fees.

The Labour Court, in chambers, may review the determination of the registrar of the Labour Court.

The administrator's fees will be paid as an expense of the trade union or employers' organisation.

The Labour Court may, on the application by the trade union, employer's organisation or registrar-

vary or amend any prior order made in terms of this section; or

if it is satisfied that an administrator is no longer required, terminate the appointment of the administrator, on appropriate conditions.

104. Winding-up of trade unions or employers' organisations by reason of insolvency.
Any person who seeks to sequestrate a trade union or employers' organisation by reason of insolvency must comply with the Insolvency Act, 1936 (Act No. 24 of l936), and, for the purposes of this section, any reference to the court in that Act must be interpreted as referring to the Labour Court.

105. Declaration that trade union is no longer independent

Any registered trade union may apply to the Labour Court for an order declaring that another trade union is no longer independent.

If the Labour Court is satisfied that a trade union is not independent, the Court must make a declaratory order to that effect.

[S. 105 amended by s. 20 of Act No. 12 of 2002.]

106. Cancellation of registration of trade unions or employers' organisations

The registrar of the Labour Court must notify the registrar if the Court-

in terms of section 103 or 104 has ordered a registered trade union or a registered employers' organisation to be wound up; or

in terms of section 105 has declared that a registered trade union is not independent.

[Sub-s. (1) substituted by s. 21 (a) of Act No. 12 of 2002.]

When the registrar receives a notice from the Labour Court in terms of subsection (1), the registrar must cancel the registration of the trade union or employers' organisation by removing its name from the appropriate register.

2A. The registrar may cancel the registration of a trade union or employers' organisation by removing its name from the appropriate register if the registrar-

is satisfied that the trade union or employers' organisation is not, or has ceased to function as, a genuine trade union or employers' organisation, as the case may be; or

has issued a written notice requiring the trade union or employers' organisation to comply with sections 98, 99 and 100 within a period of 60 days of the notice and the trade union or employers' organisation has, despite the notice, not complied with those sections.

[Sub-s. (2A) inserted by s. 21 (b) of Act No. 12 of 2002.]

2B. The registrar may not act in terms of subsection (2A) unless the registrar has published a notice in the Government Gazette at least 60 days prior to such action-

giving notice of the registrar's intention to cancel the registration of the trade union or employers' organisation; and

inviting the trade union or employers' organisation or any other interested parties to make written representations as to why the registration should not be cancelled.

[Sub-s. (2B) inserted by s. 21 (b) of Act No. 12 of 2002.]

When a trade union's or employers' organisation's registration is cancelled, all the rights it enjoyed as a result of being registered will end.