Case law and legislation review
Source:- Business Report http://www.busrep.co.za/index.php?fSectionId=553&fArticleId=129257
LABOUR DEPARTMENT WINS BATTLE WITH EMPLOYER BODY
IT COULD BE FAR EASIER FOR BOGUS TRADE UNIONS AND EMPLOYER ORGANISATIONS TO BE WEEDED OUT IN FUTURE, FOLLOWING A RECENT JUDGMENT IN A DISPUTE BETWEEN THE NATIONAL EMPLOYERS' FORUM (NEF) AND THE MINISTER OF LABOUR HANDED DOWN BY ACTING JUDGE BRIAN PATTERSON OF THE LABOUR COURT.
Prior to the amendments to the Labour Relations Act, which came into effect on August 1 2002, employer organisations and trade unions had proliferated.
Many of these, it has been alleged, were set up by individuals to make
profit and gain representation for "members" at the Commission for
Conciliation, Mediation and Arbitration (CCMA).
In terms of labour legislation, labour consultants and, to a lesser extent, attorneys and advocates, are effectively denied the right to represent their clients at the CCMA - unlike registered trade unions and registered employer organisations.
The amendments to the act give the registrar of labour relations the power to cancel the registration of a trade union or employer organisation that does not function as a genuine trade union or employer organisation.
A deregistered body loses the right to appear at CCMA hearings and the right to enter into binding collective agreements.
The dispute between the NEF and the minister of labour emanated from a notice issued by the registrar of labour relations advising the NEF of the registrar's intention to cancel its registration.
A registered trade union or employer organisation must keep accounts and prepare annual financial statements. It must also provide the registrar with information relating to its membership, auditors' reports and financial statements every year.
The registrar invited the NEF to make representations as to why its registration should not be cancelled. In addition to this, the registrar placed the NEF's name on a list on the Labour Department's website entitled: List of Bogus Employer Organisations.
The NEF approached the Labour Court for an urgent interim order reviewing and setting aside the notice. Furthermore, an order was sought interdicting the registrar from in any way deregistering the NEF as an employer organisation and from removing all references to the NEF as a bogus employer organisation.
The NEF won the first round, with the labour court granting it an interim order on January 31 and calling on the department of labour as well as the registrar of labour relations to show why the order should not be made final.
On the return date, Patterson dismissed the application.
He rejected the NEF's claim that the registrar, by publishing a notice in the Government Gazette giving it 60 days' notice of the registrar's intention to cancel its registration, had breached the NEF's right to fair and lawful administration of justice.
The NEF had argued that the registrar and the labour department had not complied with the audi alteram partem ("hear the other side") principle, which is fundamental to our law. It was argued that prior to a notice being published, the NEF ought to have been afforded a proper opportunity to present its case in a decision affecting it.
While Patterson agreed that actions taken by the registrar to deregister an employer organisation were administrative actions which ought to be taken having regard to the audi alteram partem principle, he disagreed that the degree of hearing was uniform in all cases.
The court held that while the right to be heard normally required that a party who may be prejudiced by an administrative action must be given a reasonable opportunity to make representations, the right to personal appearance or legal representation did not necessarily follow. One had to apply an attenuated form of audi alteram partem, "failing which the act would be unworkable and the ability of the registrar to deal with such matters would be severely hampered".
On the facts of the case, the judge found that representations had been invited and made by way of correspondence prior to the publication of the notice. The registrar had published a notice calling for representations as to why the NEF ought not to be deregistered only after considering the written representations.
In addition, the NEF was given the right to make further written representations as to why it ought not to be deregistered. The court did not say whether a greater recognition of the right to be heard would be required after the expiry of the 60-day period.
"The written representations made by the NEF amounted to a sufficient exercise of the right to be heard, and accordingly the application was dismissed.
"To have required the registrar to convene a full-blown inquiry prior to giving notice in the Government Gazette to deregister an employer organisation, would make the ability of the registrar to deregister non-compliant organisations a cumbersome and expensive affair.
"The courts have recognised numerous situations where procedural fairness is satisfied by acceptance of written submissions. This is not to say, however, that an affected party's right to make personal and legal representations regarding the merits of the deregistration is jettisoned. As the court pointed out, once the registrar deregisters the organisation after the 60-day period has expired, such a decision can always be challenged by approaching the labour court," Patterson adds.
"The court, however, refused to order the unsuccessful applicant to pay the minister's costs. This was undoubtedly in order to show its displeasure with the fact that the department and the registrar had, contrary to the interim order, failed to remove the NEF's name from its website referring to it as a bogus employer organisation."
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