It has become “common law” in dispute resolution tribunals that, if an applicant opts to be represented by a trade union (hereafter referred to as “a/the union”), the union needs to prove that it has locus standi in such a dispute resolution tribunal, if questioned by a respondent, by producing the following documents, which are much the same as the documents they need to produce in a section 21 of the Labour Relations Act verification meeting to obtain organisational rights:
- Certificate of registration at the Department of Labour;
- Proof that the specific union official is actually employed by that union (e.g. a letter of employment);
- Proof that the applicant is actually a member of that union (e.g. a membership letter/-card).
If these documents/proof are then not submitted, a respondent can argue that the union be excused from the proceedings, as it then will not have locus standi. The respondent can go even further to argue that the union cannot represent the applicant as per its own constitution or on the fact that the applicant is not a member in good standing with the union or not even a member.
The same also applies when the union questions the locus standi of an employers’ organisation representing a respondent.
This status quo was challenged in the case of MACDONALD’S TRANSPORT UPINGTON (PTY) LTD VS AMCU, AMCU’S MEMBERS, NBCRFLI & SHAAM FRIEDMAN N.O., JA10/2016, LAC.
The right of dismissed employees to choose a union to represent them in unfair dismissal arbitrations was disputed by the respondent. The respondent contended that the union could not represent employees as they are not union members in good standing, their membership has lapsed for non-payment of subscription fees and the interpretation of the union’s constitution did not allow representation of the applicants or their membership fees were not paid up. The respondent further argued that the union did not enjoy locus standi, as the applicants were not members of the union as per its constitution in terms of submitting membership application forms and the acceptance thereof.
The court distinguished between applicants’ rights to choose a representative in unfair dismissal proceedings from the union’s demand for organisational rights. The court further held that employees have the right to choose a union as their representative in dismissal proceedings, in which case a union demands to represent a member in dismissal proceedings to assert its members’ rights and not its own.
The court also held, which has to be noted, that respondent’s does not have an interest in internal affairs of a union or a union having no locus standi and that does not have to concern itself with such affairs-whether union enforces its rights against its members or chooses not to are never the legitimate business of an employer.
The court finally held that the Labour Court was correct in setting aside the arbitrator’s ruling refusing to allow a union to represent workers and the appeal was subsequently dismissed with costs.
Although unions can rely on the case addressed in this article to exempt themselves from proving membership of their member or its right to represent a member, I would suggest that employers continue to argue locus standi of a union to represent employees in a dispute resolution tribunal. Furthermore, they should request them to prove their locus standi as mentioned above.
In conclusion, the union should always be asked to prove that they are registered at the Department of Labour and that the employee is a member of that union.
MJ van Dyk
Dispute Resolution Official – Cape Town