Can a trade union organise and represent members outside the confines of its own constitution?
We are often approached by employers as to whether organisational rights sought after by a trade union should be granted, where such trade union’s organisational scope is limited to a specific industry. This issue was determined by the Constitutional Court in the matter of National Union of Metal Workers of South Africa (NUMSA) v Lulfil Packaging (Isithebe) (2020) ZACC 7 which upheld the Labour Appeal Court’s findings (LAC) that employers may only need to consider granting organisational rights to a trade union, where the organisational scope of the trade union falls within the employer’s industry of trade.
In this matter, NUMSA had referred a dispute to the CCMA in order to seek organisational rights. It enjoyed 70% membership of Lulfil Packaging’s employees; however, the employer had elected not to recognise NUMSA as a trade union on the basis that the employer’s business did not fall within NUMSA’s constitution and registered scope as a trade union. The CCMA had found in favour of NUMSA in that it was eligible to represent the employees of Lulfil Packaging and on review to the Labour Court (LC), the decision was upheld. The matter was then taken on appeal to the LAC, which then overturned the decision of the (LC) where the LAC found that the union’s right to represent the employees of Lulfil Packaging, did fall outside of the scope of its own constitution.
On appeal, the constitutional court had to determine whether an employee’s right to freedom of association would be affected, when considering Section 8(a)(i) of the Labour Relations Act (The LRA) i.e. did the trade union in question (NUMSA), have in place a valid constitution and rules? As per NUMSA’s constitution, it was found that specific categories of industry which fell primarily under the scope of the metal and related industries, are referred to. As NUMSA had chosen to define the scope of its membership which in this case excluded the scope of industry that Lulfil Packaging trades under, the argument therefore that the right to freedom of association had failed because they had limited themselves to their own constitution and set of rules. The adoption of a trade union’s [own] constitution, should be viewed as a collective and binding agreement where the relationship between its members become public. NUMSA did have the right to amend its constitution before it admitted Lulfil Packaging employees as members; however, it failed to do so. It is important to note that an employer also has the right to determine the extent of an employee’s right to freedom of association.
Therefore trade unions are required to remain within the confines of their own constitution. Should you wish to know whether or not a trade union can seek organisational rights within your workplace, kindly email us on admin@erlc.africa and linden@erlc.africa.
This article was written by Linden Bowes (LLB) who is a Senior Consultant for ER Labour Consultants.
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