On 21 June 2024, the Constitutional Court (CC) handed down a groundbreaking judgment within the sphere of labour law, particularly on legal standing as far as trade unions are concerned. This matter came before the CC as an appeal from the Labour Appeal Court (LAC), which had found in favour of the respondents. The CC upheld the appeal and replaced the court a quo’s order by dismissing the appeal.
In this article, I analyse the court’s findings on a trade union’s legal standing towards employees who fall squarely outside those which it could legitimately represent in a court of law or any appropriate forums in terms of such union’s constitution. The CC found that a trade union essentially exists within the limits of its own constitution.
The matter had an interplay between strict adherence to legislative frameworks and the rights of employees to approach the courts with labour disputes. Moreover, the scope of trade unions’ work was emphasised, especially the supremacy of its constitution in establishing standing to represent employees. Notwithstanding the aforesaid, to grapple with the principles canvassed by the CC, a brief discussion of the litigation history is apposite.
The Labour Court (LC) relied on the provisions of s 200(1)(b) and 200(1)(c) Labour Relations Act 66 of 1995 (LRA) and held that a trade union must be registered and anyone using such a union ought to be its member. It then pointed out that the National Union of Metalworkers of South Africa (the union) lacked the necessary legal standing to represent the dismissed employees as they were not members of the union.
The LAC overturned the LC’s order. The bedrock of the LAC’s ruling was that the dismissed employees were in fact members of the union and contrary to the LC, found that s 200(1)(b) and s 200(1)(c) of the LRA was applicable. The LAC then also held that workers have the prerogative of choosing their representative. The LAC went on and stated that constitutional rights of employees, particularly ss 23 and 38 of the Constitution, reign supreme and argued that they override a union’s constitution – since these sections promote access to justice so that employees could obtain redress.
The matter found its way to the CC and the applicant still pursued the fact that the union lacked the standing to represent the dismissed employees. The CC found that the powers of a union are derived only from its constitution and any other act, outside powers conferred by its constitution, would be ultra vires and, therefore, null and void ab initio. The CC concluded that the union could only accept membership from employees within the metal and related industries. Since the dismissed employees were in the animal feed industry, the CC found that they were ineligible for membership because their admission was beyond the powers of union.
The CC in essence held that a union ‘lives and dies’ by its own constitution. It could be said that the status the court afforded a union’s constitution could be similar to the status currently afforded to the Constitution of Republic of South Africa, 1996. It is a well-established norm that no conduct or law could exist in contravention of the South African Constitution, lest it is invalid for its unconstitutionality. On this basis, it appears that a union is equally bound by the terms and conditions of its constitution and must, at material times, comply with the same.
It is clear that a union has no discretion to depart from the provisions of its constitution and is bound by the peremptory provisions of its constitutional provisions. Section 95 of the LRA requires a union to adopt a constitution, which must indicate the industry or industries wherein employees thereof could be members. Where the constitution of a union complies with the statute and stipulates its scope of operation then the supremacy of such constitution is reignited. A constitution of a union cannot be overridden by its officials doing anything contrary to what it provides. The CC in National Union of Metalworkers of SA v Lufil Packaging (Isithebe) (A Division of Bidvest Paperplus (Pty) Ltd) and Others (2020) 41 (ILJ) 1846 (CC) and now recently in AFGRI Animal Feeds confirmed this position.
Similarly, employees joining a union cannot override its constitution by relying on their constitutional rights as the dismissed employees did in the present case. In fact, the dismissed employees’ reliance on ss 18 and 38 of the Constitution appeared to be misconceived as s 4(1)(b) of the LRA unambiguously states that the employees may join a union subject to its constitution. Section 4(1), therefore, confirms that it is impermissible of employees to attempt to override or extend the scope of a union’s operation.
The LRA is clear that for a trade union to represent an employee, such an employee ought to be a member of such a union. This is a statutory requirement. Before delving into the content of a union’s constitution, I submit that the statute ought to be the point of departure, since a union’s constitution cannot be in contravention of a statute. Where a union’s constitution provides that it could represent employees that are not its members, then it would be unlawfully extending its scope of operation and that would be unlawful and ultra vires.
It is imperative for employees that are currently members of unions and to also those who aspire to join one in the future to familiarise themselves with the constitution of their unions or prospective unions. It could be disastrous to be a member of a union for several years with consistent payment of membership fees only to learn that your union is unable to represent you in a possible legal dispute with your employer.
Sipho Matshie LLB (Unisa) is a Legal Secretary at the Unisa Law Clinic, Researcher at African Peer Growth Network, and Communication officer at Black Forum South Africa.
This article was first published in De Rebus in 2024 (Nov) DR 43.
