Member Article

In its recent decision inNational Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) and Others, the Constitutional Court had to decide this question in an appeal brought by the National Union of Metal Workers of South Africa (“NUMSA”) against a decision of the Labour Appeal Court (“LAC”), which held that NUMSA was not entitled to organisational rights within Lufil’s workplace. This was because Lufil’s employees did not qualify to be NUMSA members in terms of NUMSA’s constitution.

NUMSA’s constitution provides that its membership is open to employees in the metal industry in the following terms:

“[a]ll workers who are or were working in the metal and related industries are eligible for membership of [NUMSA]”.

Despite this limitation, NUMSA admitted Lufil employees as members. Lufil and its employees are engaged in the paper and packaging industry. Lufil refused to grant NUMSA organisational rights on the basis that the industry in which it was engaged did not fall within the scope of NUMSA’s constitution.

NUMSA’s contentions

In the Constitutional Court, NUMSA argued that the matter raised several constitutional issues, such as the right to freedom of association and the right to join a trade union. NUMSA further argued that it was a registered union with sufficient representation, in that approximately 70% of Lufil’s employees had applied for membership, and had been admitted as members. Accordingly, the union argued that it complied with the representivity provisions of the Labour Relations Act, 1995 (“LRA”) and that it ought to be granted organisational rights within Lufil’s workplace.

NUMSA’s core argument involved the interpretation of section 4(1)(b) of the LRA which provides that “every employee has the right to join a trade union, subject to its constitution”. NUMSA contended that the interpretation of this provision should be applied in a less restrictive way, so as to ensure that unions and their members can exercise their right to freedom of association and that such a right is not limited. The provision, NUMSA argued, had to be interpreted to mean that, provided the union and its members were satisfied that the union’s constitution governed their relationship, the employee had a right to join that union. This, in turn, entitled the union to claim organisational rights from the employer. NUMSA further argued that no employer should interfere with the internal workings of a union.

Lufil’s contentions

Lufil argued that NUMSA chose to provide in its constitution that only employees in specific industries were eligible to become members and that NUMSA had to abide by its constitution. Lufil further argued that, at common law, a union has no powers outside of those given to it in its constitution. If it admits a member contrary to its constitution, the union actsultra viresand unlawfully. Lufil further contended that the LRA requires unions who seek organisational rights to register a constitution that prescribes the criteria for membership. The LRA makes the granting of organisational rights dependent on membership, and the only plausible reading was that unions can only rely on lawfully admitted members to determine representivity when they claim organisational rights from an employer.

Constitutional Court findings

The court found that NUMSA’s constitution prevented it from admitting Lufil’s employees as its members and could therefore not acquire organisational rights in Lufil’s workplace. Its principle reasons in this regard were as follows:

• Existing members of NUMSA may have joined NUMSA because of its knowledge of collective bargaining in the metal industry, and by joining NUMSA, they may have intentionally elected not to join unions that operated in other industries. There may well be reasons why current members of NUMSA would not want NUMSA to diversify and add another unrelated industry to its scope. NUMSA’s blatant disregard of its own constitution could violate the existing members’ right to associate and disassociate.
• The flaw in NUMSA’s argument was its reliance on its own rights and its members’ right to freedom of association, without having regard to the rights of the employer. The LRA does not confer the right to associate only on employees; employers have this right too.
• A voluntary association, such as NUMSA, is bound by its own constitution and it has no powers beyond the four corners of that document. NUMSA, having elected to define the eligibility for membership in its constitution, had manifestly limited its own criteria for eligibility for membership. Therefore, when it came to organisational rights, NUMSA had limited itself to the categories of membership set out in its scope.
• NUMSA could amend its scope of membership without limitation, provided that it followed its prescribed amendment procedures. It was therefore difficult to accept that NUMSA could choose to ignore the provisions of its own constitution and claim an infringement of its right to freedom of association.
• While the constitution of a union is seen to be a contract between the union and its members, it serves more than that purpose. The constitution also serves an important purpose for employers, as they are informed of the different industries within which unions operate. To allow unions to operate outside their constitutions, at their discretion, would go against core constitutional values such as accountability, transparency and openness.
• NUMSA’s argument that Lufil’s attitude constituted an improper interference in the internal affairs of a union was rejected. Lufil could not be said to have been interfering with NUMSA’s internal workings by holding it accountable to a document it drafted and to which its existing members had agreed.

Conclusion

The importance of this judgment is the finding that trade unions that have defined eligibility requirements for membership in their constitutions cannot admit employees as members who do not meet these requirements and subsequently seek to obtain organisational rights from an employer on the basis of those purported members.

InMacDonald’s Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union, the LAC accepted that a union is entitled to represent employees in CCMA proceedings who cannot be admitted to its membership by virtue of the provisions of its constitution. The Constitutional Court did not have to decide this question, but it did make the following comment in this regard:

“The cases NUMSA relies on, in relation to the issue of interference are distinguishable on the facts of this case. These cases dealt with representation at arbitration hearings. This is noteworthy as in those cases the court had to balance the interests of the employees to have legal representation at arbitration hearings against that of the employer.”

ENSafrica acted for Lufil throughout, including during the proceedings before the Constitutional Court.

Henry Rossouwexecutive employment[email protected]+27 82 708 0469

Edwin Ellisexecutive employment[email protected]+27 82 497 7564

Siphile Hlwatikacandidate attorney employment[email protected]+27 60 958 5155