Authors: Lavery Modise – Consultant & Faatimah Essack – Candidate Attorney
In the recent Constitutional Court case of National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) and Others [2020] ZACC 7, the court found that a trade union cannot ignore its own constitution and demand organisational rights from an employer for members who fall outside the scope of the union’s constitution, which defines eligibility for membership.
The dispute arose from the National Union of Metal Workers of South Africa (NUMSA) seeking to be given organisational rights within Lufil Packaging’s workplace, where its members comprised 70% of Lufil employees.
NUMSA contended that it met the requirements of the Labour Relations Act (LRA) to be accorded organisational rights, namely:
Be a registered trade union; and
Be “sufficiently representative” of the employees in the specific workplace (the 70% membership of NUMSA at Lufil would ordinarily suffice).
In making this submission, NUMSA seems not to have carefully considered the relevant provision of its constitution regulating qualification for membership, which states that:“[a]ll workers who are or were working in the metal and related industries are eligible for membership of [NUMSA]”.
Accordingly, plastic and packaging workers, such as those at Lufil, did not fall within the prescribed category of employees who qualified for membership.
NUMSA also argued that refusal to accord it organisational rights infringed upon its members’ rights to freedom of association and fair labour practices in terms of sections 18 and 23 of the constitution respectively.
Lufil invoked the provisions of section 4(1)(b) of the LRA which explicitly state that every employee has the right to join a union, subject to the union’s constitution.
NUMSA successfully challenged Lufil’s refusal to grant organisational rights in both the Commission for Conciliation, Mediation & Arbitration (CCMA) and the Labour Court. Lufil succeeded in an appeal to the Labour Appeal Court, which overturned the judgment of the Labour Court. NUMSA then lodged an appeal against the judgment of the Labour Appeal Court in the Constitutional Court.
Freedom of association and fair labour practices
The Constitutional Court held, inter alia, that NUMSA is obligated to advance the interests of both new and existing members. Likely, certain existing members have only chosen to freely associate with NUMSA due to the union’s reputation in the metal industry. Accordingly, in NUMSA choosing to unilaterally diversify the scope of its members, it infringes upon its members' ability to associate or dissociate freely.
NUMSA failed to appreciate that employers also have a right to freedom of association, with the LRA conferring the right to associate on both employers and employees.
The Constitutional Court further stated that:
“The Labour Appeal Court was correct to find that the role of a union’s constitution gives effect to legitimate government policy of orderly collective bargaining at sectoral level.”
NUMSA’s Constitution
A trade union’s constitution is a binding document on the union and regulates all its powers and rights. For NUMSA to exercise powers beyond its constitution would be ultra vires.
NUMSA elected to define the eligibility for membership within its constitution, and limited this to the metal and related industries. Although the union constitution provided the procedures for any amendments, NUMSA made no such attempt to amend the scope of its constitution to include plastic and paper workers. Accordingly, when it came to organisational rights, NUMSA had limited itself to employees in the metal and related industries.
At the heart of the Constitutional Court’s decision was that “to allow unions to operate outside their constitutions, at their discretion, would go against core constitutional values such as accountability, transparency, and openness.”
Conclusion
The Constitutional Court upheld the judgment of the Labour Appeal Court and accordingly the application for leave to appeal was dismissed and each party ordered to pay its own costs.
This judgment highlights the importance of a trade union’s adherence to its own constitution, specifically in relation to its defined requirements for eligibility as a member and the subsequent organisational rights that flow therefrom.
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