The Constitution of the Republic of South Africa guarantees the right to fair labour practices. That right, in turn, includes the right of every worker to join a Trade Union; and every Trade Union has the right to determine its own administration.

Section 1 of the Labour Relations Act, 66 of 1995 (LRA), specifies:

“1. Purpose of this Act —The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are — … (iv) the effective resolution of labour disputes.”

It is essential to acknowledge that the effective resolution of labour disputes includes the right to be represented by a Trade Union Official at the Commission for Conciliation, Mediation and Arbitration (CCMA), Bargaining Councils, or even the Labour Court and Section 4(1) of the LRA enshrines the right of every Employee to join a Trade Union “subject to its Constitution”.

A Trade Union Official can appear in matters, on behalf of Employees, in one of two ways: Firstly, an Employee may elect to have the Trade Union Official represent them in terms of CCMA Rule 25(1)(a)(ii). This rule stipulates that a party to a dispute may be represented in labour proceedings by an Office Bearer, Official, or Member of that person’s registered Trade Union. Secondly, the Trade Union may exercise its entitlement in terms of Section 200 of the LRA to be a party to the proceedings by virtue of one or more of its Members being a party to the proceedings. The Labour Court has previously held that a distinction between these two options is based on whether the rights being exercised are those of the Trade Union or the individual Employee. Nevertheless, the pertinent question would then be: If the Employee seeking representation is not a valid Member of that Trade Union, would the Trade Union be able to exercise its entitlement to represent that Employee?

An interesting situation arose in the case of NUM obo Mabote v Commission for Conciliation Mediation and Arbitration and Others (C 1010/12) (2013) 34 ILJ 3296 (LC) (21 June 2013), where the Employee, Mabote, was a Member of the National Union of Mineworkers (NUM). However, he was employed by Kalahari Country Club (KCC), which is part of the hospitality industry and not the mining industry. At the CCMA, it was argued by KCC that NUM was not entitled to represent Mabote because it had no right to organise within the hospitality sector, and the Commissioner agreed, thereby ruling that NUM lacked locus standi to represent Mabote. On review at the Labour Court, Steenkamp J ruled that the provisions of the LRA should not be interpreted so restrictively. The Court held that it is for the Trade Union to decide whether to accept an application for membership and whether that Employee is covered by its Constitution. The Court justified its ruling by stating that it could not have been the intention of the legislature to unduly restrict the right to representation by a Trade Union to the extent that it is up to a third party to deny workers a right, based on the Trade Union’s Constitution. This Judgment does not apply to labour disputes related to Organisational Rights and Collective Bargaining, where the Constitution and Scope of the Trade Union do play a definitive role in representation by that Trade Union as per recent Court Judgments.

Thus, an Employee seeking representation from a Trade Union, of which the Employee was not a Member at the time of their employment, may still be represented at the discretion of that Trade Union – only if such an Employee is then a Member and has their membership documentation at the time of being represented at the CCMA. Employers are encouraged to question whether the Trade Union has the necessary credentials and membership documentation at the time of the CCMA proceedings.

Article by Hemanth Haricharan

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)