Employment law update – Challenging trade union’s right to represent its member at arbitration based on its own constitution

October 1st, 2013

NUM obo Mabote v Commission for Conciliation, Mediation and Arbitration and Others (LC) (unreported case no C1010/12, 21-6-2013) (Steenkamp J).

By Moksha Naidoo

The third respondent, Kalahari Country Club (Kalahari) dismissed Mabote who, in turn, referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). At arbitration Mabote was represented by an official from the trade union, the National Union of Mineworkers (NUM).

Kalahari challenged the locus standi of the NUM official on the following grounds:

  • In terms of NUM’s constitution, clause 1.3 states that the union will operate in the mining, energy, construction and allied industries. Clause 2.1 states that membership is open for employees working within the above-mentioned industries. Further to this, its constitution defines mining, energy, construction and allied industries as industries engaged in mining, extracting, processing or refining minerals, including those workplaces, services and operations that are ancillary or incidental to the mining industry.
  • Kalahari forms part of the hospitality industry in that it operates as a restaurant and bar.
  • As NUM’s constitution does not include in its scope the hospitality industry, it does not have the necessary locus standi to represent those employed in such an industry, more particularly Mabote in this matter.

At the proceedings Kalahari’s constitution was also presented and it recorded the following:

  • ‘Kalahari Country Club’ is defined as ‘the Kalahari Country Club of Sishen Iron Ore Mine’.
  • The chairman of the club is the general manager of Sishen Iron Ore Mine.
  • Sishen Iron Ore Mine’s aim with regard to Kalahari is for the latter to provide, among other services, an environment that is conducive to promote health and good relationships outside the workplace.

In his award the arbitrator accepted that NUM does not operate in, nor was a part of the hospitality industry that Kalahari fell within and as such, lacked the necessary locus standi to represent Mabote at the proceedings.

On review, NUM argued that the arbitrator exceeded his powers by enquiring into the scope of the union.

The court considered s 4(1)(b) of the Labour Relations Act 66 of 1995, under the heading ‘Employees’ right to freedom of association’ that states:

‘(1) Every employee has the right – (a) to participate in forming a trade union or federation of trade unions; and (b) to join a trade union, subject to its constitution (my bold text).

The court went on to examine CCMA r 25 dealing with representation at the CCMA and s 200 of the LRA.

The relevant portion of r 25 (1)(b)(iii) reads: ‘In any arbitration proceedings, a party to the dispute may appear in person or be represented only by: … (iii) any member, office bearer or official of that party’s registered trade union or a registered employers’ organisation.’

Section 200 reads: ‘Representation of employees or employers – (1) A registered trade union or registered employers’ organisation may act in any one or more of the following capacities in any dispute to which any of its members is a party –

(a)     in its own interest;

(b)     on behalf of any of its members;

(c)     in the interest of any of its members.

(2) A registered trade union or a registered employers’ organisation is entitled to be a party to any proceedings in terms of this Act if one or more of its members is a party to those proceedings.’

With regard to s 4(1)(b) and with specific reference to the phrase ‘subject to its constitution’ the court held that such a restriction could only have been intended to speak to the trade union’s prerogative to allow an employee membership into the union and not to be interpreted as a third party denying an employee the right to be represented by a trade union based on the union’s own constitution.

Continuing on this point Steenkamp J held the following: ‘The NUM constitution makes it clear that eligibility for membership is “subject to the approval of the branch committee which has jurisdiction”. It is up to the union and its branch committee to deal with any challenge to membership. It is not for an employer to interfere with the internal decisions of a trade union as to whom to allow to become a member.’

The court further held: ‘A purposive approach to the interpretation of the LRA is mandated by section 1, read with section 3(a) of the LRA. The Labour Appeal Court has emphasised the link between the purposes of the Act and section 23 of the Constitution, adding that if the LRA is to achieve its constitutional goals, courts have to be vigilant to safeguard those employees who are particularly vulnerable to exploitation. In holding that the employee could not be represented by the NUM, the commissioner exceeded his powers. The employee was entitled to be represented by an official of the NUM, his registered trade union, in terms of CCMA rule 25(1)(b)(iii).’

The ruling was set aside and substituted with a finding that Mabote was entitled to be represented by a NUM official. The matter was remitted to the CCMA to appoint another commissioner to hear the merits of the dispute.

Note: Unreported cases at date of publication may have subsequently been reported.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2013 (Oct) DR 63.