The age-old question of whether an employee may be represented in litigation proceedings by any trade union has been the subject of some uncertainty. That was until 2022, when the question was considered by the Labour Appeal Court (LAC) in the matter of NUMSA & Others v Afgri Animal Feeds (Ltd) where the found that employees have the right to be represented by a trade union of their choice in litigation proceedings, regardless of whether the trade union’s constitution covers the industry in which the employees work. However, for collective bargaining rights, a trade union cannot bargain collectively with the employer in an industry outside of its scope – the court regarded this as a separate issue.
Background
The dispute began when Afgri Animal Feeds (the “Company”), a division of Philafrica Foods, dismissed several employees during December 2017 for participating in an unprotected strike. The strike followed Afgri’s refusal to afford NUMSA organisational rights. NUMSA, whose membership is restricted to the metal industry, represented these employees despite their ineligibility under its own constitution.
The dispute remained unresolved at the Commission for Conciliation, Mediation and Arbitration. When the case was heard in the Labour court, the Company objected to NUMSA’s standing on the ground that its constitution prohibited the dismissed employees, who were employed in the animal feeds industry, from becoming members of NUMSA.
In the Labour Court
The Labour Court (LC) initially ruled in favour of the Company, declaring that NUMSA lacked the legal standing to represent the employees. NUMSA’s constitution limited its membership to workers in the metal and related industries, thus since the employees worked outside of NUMSA’s constitutional scope, they could not be valid union members. NUMSA appealed to the Labour Appeal Court (LAC).
In the Labour Appeal Court
The LAC reversed the decision of LC, citing the importance of fairness and access to justice in dismissal disputes. Essentially the LAC drew a distinction between a union’s ability to exercise organisational rights and its ability to represent employees in individual disputes. The LAC held that NUMSA could represent the employees in the unfair dismissal case even if they were not eligible for membership under its constitution.
The Company appealed to the Constitutional Court and on the 21st day of June 2024 the apex court delivered its judgment. The Constitutional Court disagreed with the reasoning of the LAC judgment and accordingly, the Company’s appeal was successful.
In the Constitutional Court
Briefly, the Constitutional Court held that a trade union has no authority to represent dismissed employees who are precluded from becoming members of the trade union in terms of that trade union’s constitution. This approach was consistent with an earlier judgment of the Constitutional Court in respect of a trade union seeking organisational rights.
The reasoning of Constitutional Court can be summed up as follows:
“one of the effects of legal personality is that a trade union, as a body corporate, may perform any act in law which its constitution requires or permits it to do. The Constitution sets out the trade union’s powers – a set requirement for registration under section 95(5) of the Labour Relations Act (LRA). The constitution corresponds with the articles of association of a company and may be enforced in like manner. Where a trade union performs any act that deviates from or is contrary to its constitution, that act is ultra vires (beyond its powers) and thus null and void. In such cases, an individual may approach a court to interdict the ultra vires act.
There is no ground for drawing a distinction between a trade union’s representation of employees when enforcing organisational rights and representation in an unfair dismissal dispute, as submitted by the trade union. The court held that that distinction is both illogical and at odds with the principle that a trade union has no power beyond those conferred by its constitution.”
The judgment is significant since it clarifies that the right of employees to be represented by trade unions of their choice in both arbitration and Labour Court proceedings is not unfettered. A trade union must confine membership to employees in industries that accord with its own constitution. Where employees fall outside of the scope of a particular industry, the trade union can neither admit such employees as members nor represent them in litigious proceedings.
Key findings
i. The admission of members was from outside a union’s constitutionally defined scope; therefore, the dismissed employees could not be valid members of NUMSA.
ii. There is no legal basis to distinguish between a union’s ability to exercise organisational rights and its ability to represent workers in individual disputes. A worker is either a valid member for all purposes or not a member at all.
iii. The right to freedom of association was not implicated, as the workers remain free to join unions that covered their industry and pursue their cases individually.
iv. The approach to interpreting union constitutions advocated by the LAC was rejected in favour of giving effect to the plain language of NUMSA’s constitution.
Conclusion
The ruling underscored that trade union’s must operate within their defined scope to maintain their legal standing and legitimacy. This ruling also serves as a guideline for other unions navigating similar disputes. Ultimately, it reinforces the importance of clearly defined industry scopes in union constitutions and the legal weight given to these documents
by Ross Simon
© Maserumule Corporate Employment Law – August 2024
