Can a union represent its members in a breach of its own Constitution?

Mcdonald’s Transport vs Amcu (2016) Labour Appeal Court

?Lufil Packaging filed a dispute disputing AMCU’s right to organize within the packaging industry and in breach of its own Constitution, which does not provide for the union to organize outside of the metal engineering industry. The case had become well-known in which the Labour Appeal Court found that for the purposes of a union seeking organizational rights, membership to the union is subjected to the Constitution of the trade union and in terms of Section 4 (1)(b) of the Labour Relations Act, which provides:

“that every employee has the right-

???(b) to join a trade union, subject to its Constitution.

On appeal to the Constitutional Court, the Court sided (2020) with the Labour Appeal Court and confirmed its findings. The Court found that keeping a trade union to its Constitution is not an infringement of employee’s freedom of association in circumstances whereby the unions’ Constitution is limiting its scope to organize within industries outside of which is provided for in its Constitution. This is a self-imposed limitation and easy remedied as the union can simply amend its Constitution and have its Constitution updated at the Registrar of Labour Relations.

The Court cautioned against a union being ‘captured’ as many employees may join this union (NUMSA) based on its expertise in the metal industry and as such it is not only the rights of new members that should be considered, but also those members who already joined.

The question is, however, to what extend does the consequence of a union’s failure to abide or organize within the scope of its own Constitution impact all the benefits its members typically enjoy by virtue of being a member of the union? Does a union being limited in its own Constitution to seek organizational rights, having any limitations in matters like representation before a Council in terms of disputes arising out of the LRA, like unfair dismissal disputes?

In Mcdonald’s Transport vs AMCU, the Labour Appeal Court had to deal with the right of dismissed employees to choose a union to represent them in unfair dismissal arbitration. The employer contended that a union could not represent employees as they are not union members in good standing, with their membership having lapsed for non-payment of subscription fees. This was based on an interpretation of the union’s Constitution that membership was conditional to fees actually being paid.

In casu, the workers were dismissed after a strike for organizational rights, went violent. Initial requests for stop orders and deductions of union subscription fees was made on the 1st of August 2014. Representativity was questioned and eventually the matter was Conciliated with a certificate of Non-Resolution being issues on the 15th of April 2015. A strike notice was issued and ensued, with the dismissals three weeks later on the 18th of June 2021. Non- deduction of union subscriptions had been affected.

At arbitration, the company raised a point in limine arguing that the workers were not members of Amcu, because their membership had lapsed by reason of non-payment of subscription fees in excess of three months, and therefor Amcu could not represent them. The foundation for this argument was an interpretation placed on several provisions of the Constitution of Amcu.

The Labour Appeal Court noted that both the arbitrator and the Labour Court articulated the rationale for the outcome in terms of the right of the union to represent persons, but that neither articulated that the issue was also about the individuals’ right to choose a union to represent them.

Neither the arbitrator nor the Labour Court addressed the question of whether an employer had any locus standi to challenge the membership credentials of persons who desire a union to represent them in disciplinary proceedings before a statutory forum. The Court noted Clause 8.2 of the union’s Constitution, that provides:

“Members who are three months in arrears with their subscription fees forfeit their membership, any benefit they received from the trade union will cease. “

?The Court argued that these provisions in the Constitution of the union must be understood in the context of the provisions of the LRA about the procuring of organizational rights and in the context of labour relations dynamics, in which unions recruit members and have to engage with every employer to establish a right to enjoy a stop order facility. Section 13 regulates the procedure to obtain stop orders. The Court stated:

“The notion that members of Amcu, recruited on, say 1 January, and Amcu has not by 2 April secured a stop order activation from their employer, forfeit their membership, is preposterous. Where it so, an employer can by the simple tactic of delay, could undermine the recruitment efforts repeatedly, and ‘legitimately’ claim that membership is unproven.”

?Further, the Court referred to Lagrange J in General Industries Workers Uniion of SA vs Maseko and others (2015)

That the approach to interpreting a constitution of a voluntary organization is benevolence, rather than of nit-picking, and ought, rather, to be aimed at the promotion of convenience and the preservation of rights should be unreservedly endorsed.

The Court found that the argument that membership had lapsed, must fail. It is common cause that the union had recruited workers. That was sufficient for the union to assert membership. The Court further found that the rules of the CCMA regulate representation of parties in misconduct proceedings and that nothing, before the Court, suggested that the Bargaining Council could apply different norms.

CCMA Rule 25 (1)(a)(ii) stipulates that a person who is party to a dispute, may be represented in conciliation by any office bearer, official, member of that person’s registered union. These are extended to arbitration proceedings.?In a union’s demand for organization rights, the union accord to it a particular status of a collective bargaining agent with the employer and thus need to prove it has members and must establish itself as such. However, this is not the case in dismissal proceedings, which are not about collective bargaining. In such a case it is the worker that is the actual party. It is the worker’s right to choose a representative. When an individual applicant wants a particular union to represent him in a dismissal proceeding, the only relevant question is that worker’s right to choose that union. As such, when a union demands to represent a member in dismissal proceedings it asserts its members’ rights, and not its own.

The Court questioned how it can be the business of an employer to concern itself with whether membership dues are up to date or any other aspect of the relationship between individual employees and their union? There is no basis at all. Surely, the choice of the union to elect not to cancel the membership or enforce specific performance is one which it can make without regard to any third party.

In Mabote, Steenkamp J, addressed the question of restriction in Section 4 (1)(b) of the LRA:

“That restriction appears to me to regulate the relationship between the trade union and its members. It is for the trade union to decide whether or not to accept an application for membership and whether or not that member is covered by its constitution. It could not have been the intention of the legislature unduly to restrict the right to representation by a trade union to the extent that it is up to a third party to deny workers that right, based on the trade union’s constitution.

What we learn from this case is that the relationship between a union and its members is a private matter and to interfere with the private contractual relationship of other persons, a stranger would have to demonstrate some sort of delictual harm.

It is advisable for employers to seek professional advise. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email:?[email protected]

visit: www.effectusharmony.co.za