A union’s right to seek organisational rights in the workplace was curtailed by the Labour Appeal Court in Lufil Packaging (Isithebe) (A Division of Bidvest Paperplus (Pty) Ltd) v CCMA  JOL 45056 (LAC).
The facts of the matter are as follows:
Lufil Packaging manufactures paper bags and other paper-based products, and their business falls within the Paper and Packaging Industry. At the beginning of 2015, NUMSA had allegedly recruited members in the workplace and wrote to the employer requesting it to deduct union fees for its (alleged) members. The employer refused their request on the basis that its business fell outside the registered scope of the union and that the employees were not eligible under NUMSA’s constitution to be members. This would mean that if the employer succeeds in his claim, NUMSA would not be able to claim organisational rights in the workplace in terms of Chapter 3 of the Labour Relations Act (LRA). In addition, the employer claimed that should NUMSA admit these employees as members, the union will be acting outside of the scope of their constitution and the decision would, therefore, be invalid.
NUMSA then referred an organisational rights dispute to the CCMA in terms of section 21 of the LRA. The employer, in turn, raised a jurisdictional point that the union lacked the requisite jurisdiction to refer a dispute to the CCMA.
The CCMA commissioner held that unions are not prevented from organising in workplaces that are outside of the scope of their constitutions and following arbitration of the dispute, the CCMA awarded certain organisational rights to NUMSA.
The employer took the arbitration award on review to the Labour Court, but the Labour Court dismissed the application for review on the basis that NUMSA had as its members, the majority of the employer’s staff and were therefore entitled to organisational rights.
The employer then referred the matter to the Labour Appeal Court (LAC), and Lufil, the employer, argued that the union was bound by their constitution and cannot have as members employees who fall outside the eligibility for membership requirements contained in the union’s constitution. Therefore, persons who are not eligible under a union’s constitution to be members of that union are not members of the union for the purpose of determining a union’s representativeness in terms of Chapter 3 of the LRA.
The LAC held that the main issue to be determined was whether NUMSA qualified for organisational rights even though Lufil’s employees were ineligible to be members of the union.
Section (4)(1)(b) of the LRA provides that every employee has the right to join a trade union, subject to its constitution. Therefore, the inference one can draw is that in order for an employee to join a union, the employee must be eligible to join that union in terms of the union’s constitution. This limitation was held to be a justifiable limitation to the right to form and join a trade union as set out in The Constitution, 1996.
It was also common cause that the paper industry did not fall within the scope of NUMSA’s constitution and that there had been no amendment of the scope of the union’s constitution to include the paper industry. As a result, the LAC held that the union acted outside of its constitution in allowing the Lufil employees to be its members. Consequently, NUMSA was held to be insufficiently represented in the workplace and therefore not entitled to any organisational rights.
Considering the LAC’s decision, employers should always have sight of the unions’ constitution before granting a union organisational rights in the workplace.
Article by: Chanel Kapp
Provincial Manager – Port Elizabeth