A Trade Union’s Constitution is like a rule book from which the Trade Union is governed. The Oxford English Dictionary defines a “Constitution” as “A body of fundamental principles or established precedents according to which a state or organisation is governed.”  It is also a well-established principle in South African Labour law that a Trade Union cannot act in a manner that contradicts its Constitution. The Labour Relations Act (LRA) also requires that every Trade Union must have a Constitution to be registered in South Africa. Within a Trade Union’s Constitution is its “Scope of Application,” which sets out the industries in which a Trade Union may organise or operate, such as retail, food processing, manufacturing, or the textile industries – to name a few.

In the case of National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) and Others (CCT 172/19) [2020] ZACC 7, the Court had to determine whether a Trade Union could ignore its own Constitution and admit Employees as Members in a sector that fell outside of the scope of its Constitution. Lufil Packaging fell within the Paper and Packaging Industry; this sector was not cited in NUMSA’s Scope of Application found in its Constitution.

NUMSA’s main argument was that a Trade Union should not be rigidly bound by its Constitution as it affects the right to Freedom of Association. Lufil Packaging argued that it would be unlawful to allow a Trade Union to permit membership to Employees that fell outside the Scope of its Application, and allowing a Trade Union to do this would be unlawful. The Court held, in short, that NUMSA was bound by its Constitution and could not admit Members who fell outside of the scope of its Constitution. The Court also stated that the Trade Union could have amended its Constitution if it wished to admit the Employees of Lufil Packaging as Members, as the LRA makes provision for this.

In the case of the National Union of Metalworkers of South Africa (NUMSA) and Others v AFGRI Animal Feeds (PTY) Ltd (2022) 43 ILJ 1998 (LAC), the Labour Appeal Court had to deal with a similar scenario. It had to determine if a Trade Union could represent Members in dismissal disputes who fell outside of the scope of its Constitution. The Labour Court had initially held that the membership between a Trade Union and an Employee employed in a sector outside the scope of its Constitution would be invalid. Thus, the Trade Union would not be entitled to represent such an Employee.

The Labour Appeal Court, however, emphasised the distinction between the right to represent Members in dismissal disputes and the right to attain organisational rights to bargain for Members. Further, binding a Trade Union to its Constitution would infringe upon an Employee’s right to legal representation in dismissal disputes. Thus, the Labour Appeal Court permitted NUMSA to represent Members in dismissal proceedings even though the Employee was employed in a sector that fell outside of its scope of operation.

The above cases show that Employers should always check a Trade Union’s Constitution. Employers should also distinguish between the right to representation and organisational rights, as a Trade Union will not be allowed to organise in a sector outside its scope of operation but will be allowed to represent Employees in disputes, even if employed outside the scope of the Trade Union’s Constitution.

Article by Krian Rathinam

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)