Union Membership invalid if outside scope of union constitution.

LAC#020220 Lufil Packaging vs CCMA and Others (June 2019)

Section 4 (1)(b) states that every employee has the right to join a trade union, subject to its constitution. Even though employees have the right to Freedom of Association, it has been common practice that employees would often join trade unions without the said unions having the scope within their constitution to organize within a certain sector.

Section 21 of the LRA provides that a registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by Part A of Chapter III of the LRA in a workplace. The legal requirement for a union to organize within a workplace is that they should show to be sufficiently representative of that workplace in order to exercise some of the rights conferred by the LRA. Does this, however mean that a registered trade union can seek to organize within industries that does not fall within the scope of its constitution? One point of view is that the correct interpretation of Section 4 (1)(b) of the LRA should be that the constitution of the union merely governs the relationship between the union and its members and could not be exploited by employers to attack the validity of the union membership of its employees.

In Lufil Packaging (Pty) Ltd vs CCMA and Others Numsa sought organizational rights within the company, holding 70% of its employees as members. The employer responded in writing that after seeking legal counsel, that they are of the view that Numsa cannot organize outside the scope of its constitution and that no organizational rights would be granted to the union. The Numsa constitution list 21 industries in which it seeks to organize labour, however the packaging industry was not one of them.

In response, Numsa referred an organizational rights dispute to the CCMA. The employer filed an application to the CCMA in terms of CCMA Rule 31 disputing the validity of the employer’s employees being members of the union. The Commissioner was of the view that a union could seek organizational rights in a workplace as long as it is a registered trade union having as its members sufficient representation. In casu, the union membership stood at 70%. The Commissioner granted the union organizational rights with immediate effect.

The employer filed for a review application at the labour court, which sided with the CCMA Commissioner. On appeal at the Labour Appeal Court, the court clarified that the real question is not whether the union has a right to seek organizational rights, but whether they are sufficiently represented to claim rights in terms of the LRA. The question in law then is whether the employees could be regarded as members of the union, legally, taken in context of the scope of the union’s constitution?

The court found that Section 95 of the LRA is concerned with the requirements for the registration of trade unions or employer’s organizations. Section 95 (1)(b) provides that a trade union may apply for registration if, inter alia, it has adopted a constitution that meets the requirements of Section 95(5) and 95(6) of the LRA. Section 95(6) provides that the constitution of a trade union may not include any provision that discriminates against any person on the grounds of race or sex. Section 95(5) is concerned with matters such as membership, rules for meetings, decision-making, the election of office bearers, officials and so on. Section 95(5)(b) is of particular interest as it provides that the constitution of any trade union must prescribe qualification for and admission to membership.

The obvious implication of Section 4 (1)(b) of the LRA is that the right to join a trade union will be circumscribed by the membership eligibility criteria in the trade union’s constitution as adopted by the trade union’s relevant decision-making body and registered by the registrar.

The court further stated that in Van Wyk and Taylor v Dando and Van Wyk Print (Pty) Ltd Landman J held correctly that a union acts ultra vires its own constitution when it allows membership of individuals who are not allowed to be members of that union in terms of that union’s constitution. A union cannot create a class of membership outside the provisions of its constitution. The Labour Appeal Court set the award of the CCMA and the order of the Labour Court aside.

This judgement will go a long way in confining trade unions to operate within the scope of their constitutions. One matter that was not addressed, though relevant, is to what extend this judgement will impact a trade union’s ability to represent individuals before the CCMA or Bargaining Council in circumstances that the employee’s membership to the union is invalid if recruited outside the scope of the union’s constitution? What typically happens, by way of example, is that an employer may dismiss an employee. At the time of the dismissal the employee was not a member of a trade union, however, at arbitration, the employee is represented by a trade union official who only became a member to the union after the dismissal date. If interpreted correctly, employers may question the validity of the membership to the union if in breach of their constitution, which may affect the union’s locus standi to represent the employee.

It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Senior Labour Relations Specialist for Ulwazi Labour Relations and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512 or visit:www.ihconsult.co.za/labour/