The past two years have shown some trying times for employers and employees, which gave rise to the employee’s interest and need to join a trade union. Different trade unions specialise in different trades, and we can be sure that there is a union for almost every trade in South Africa. It has been noted that employers are reluctant to deal with trade unions for the first time and sometimes deem trade unions as their biggest threat. Employers are not allowed to refuse employees to join a trade union. The Constitution of South Africa is clear under Section 23(1) and reads as follows:

“Everyone has the right-:

  1. To form and join a trade union;
  2. To participate in the activities and programmes of a trade union; and
  3.  to strike.”

The Labour Relations Act, Act 66 of 1995 (hereinafter referred to as “the Act”) goes further in its primary purpose, amongst others, to regulate and promote the relationship between employer and employee (including the trade union) in conformity with the Constitution. Section 4 of the Act, which deals with the employee’s right to freedom of association, states explicitly that every employee has the right to participate in forming a trade union or federation of trade unions as well as to join a trade union, subject to the Constitution of the specific union.

Once employees join a union and become members, the Act further states that the employee has the right to participate in the union’s lawful activities and the right to participate in the election of any of its office-bearers, officials or trade union representatives. The employee not only has the right to participate in the latter but also has the right to be elected as an office-bearer, official or trade union representative. Once an employee has been elected, the employee has the right to carry out the functions in terms of the Act or any collective agreement.

Before exercising any of their rights at the workplace, a representative or registered trade union, must comply with the process outlined in Section 21 of the Act. Section 21(1) and (2) reads as follows:

(1) Any registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by this Part in a workplace.
(2) The notice referred to in subsection (1) must be accompanied by a certified copy of the trade unions certificate of registration and must specify-
(a) the workplace in respect of which the trade union seeks to exercise the rights;
(b) the representativeness of the trade union in that workplace, and the facts relied upon to demonstrate that it is a representative trade union; and
(c) the rights that the trade union seeks to exercise and the manner in which it seeks to exercise those rights.”

In the recent matter between NUMSA and RG Maluleke and 13 Others vs Afgri Animal Feeds (Pty) Ltd (JA29/2021), the Appeal Court held in paragraph 34 that a union relies on organisational rights granted to it in order to exercise its constitutional right to engage in collective bargaining. Where a union operates within a specified constitutional scope, in bargaining collectively on behalf of its members, the union relies on its particular knowledge of the industry in which it operates, and employees may seek membership in the union for this reason. It is not to say that when a specific union does not have the necessary rights to engage with an employer on behalf of its members, an employee cannot rely on the union’s representation in an individual dispute with the employer. In paragraph 37 supra, it states that when an employee is represented in an individual dispute with their employer, such representation is aimed at providing effective access to justice and redress to the employee in accordance with Sections 23 and 38 of the Constitution and prevailing labour legislation.

This essentially means that a union can represent an employee, even if the employee’s trade falls outside of the scope of the union’s Constitution, in an individual dispute with the employer. In the matter mentioned above, the Judge was clear that the employer has no interest in an individual dispute between an employer and employee in holding the union to the terms of the union’s Constitution in order to limit the employee’s right to representation.

Employers must note that the presence of a trade union can be beneficial, especially when the employer and trade union have collective agreements in place, which mainly manage the duties of both employer and employee and is a legally enforceable instrument. Employers should consult and obtain proper advice when dealing with trade unions for the first time, whether it be in terms of Section 21 of the Act or when a union is merely representing the employee in an individual dispute, to ensure that all procedures are followed, understood, and complies with the relevant Act.

Article by: Lemé Stander
Dispute Resolution Official – Pretoria