In what circumstances can a union represent employees who are not entitled, in terms of the union's constitution, to be members of that union? This question has been considered by our courts in various contexts. The latest of which is that of the Constitutional Court in AFGRI Animal Feeds (A Division of PhilAfrica Foods (Pty) Limited) ("AFGRI") v National Union of Metalworkers South Africa and Others ("NUMSA").
Background
In this matter, NUMSA sought to represent employees in the Labour Court who had been dismissed by AFGRI for participation in an unprotected strike. When the matter came before the Labour Court, AFGRI raised the preliminary point that NUMSA did not have legal standing and was not entitled to represent the dismissed employees in proceedings before the Court. This, it was argued, was because NUMSA's constitution precluded them from being members of the union. The dismissed employees had not been employed in the "metal and related industries" as defined in NUMSA's constitution but had been employed in the "animal feeds sector". The Labour Court concluded that NUMSA did not have legal standing and was not permitted to represent the dismissed employees. NUMSA was granted leave to appeal to the Labour Appeal Court ("LAC"). The LAC overturned the Labour Court decision and found that where a union "has accepted the employee as a member outside its constitutionally-prescribed scope of operation" – in other words, it has allowed employees to become members beyond the powers conferred on the union by its constitution – it does so on the basis that its representation of the employee "is limited". Where this happens, the union "will not be entitled to bargain collectively with the employer." Therefore, NUMSA was entitled to represent the dismissed employees. AFGRI then sought and was granted, leave to appeal to the Constitutional Court.
The Constitutional Court proceedings
At the heart of the dispute was the interpretation of sections 161 and 200 of the Labour Relations Act, ("LRA") and the relevance of the Constitutional Court's earlier decision in National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe).
Section 161(1)(a) provides that a party to proceedings before the Labour Court can be represented by a legal practitioner. Section 161(1)(c) provides that a party to proceedings in the Labour Court may appear in person or be represented only by a member, office-bearer or official of that registered trade union.
In terms of section 200(1)(b) and (c), a union may act on behalf of, or in the interests of, any of its members in any dispute to which such member is a party.
In NUMSA v Lufil Packaging (Isithebe) and Others ("Lufil"), the Constitutional Court found that NUMSA could not obtain organisational rights in terms of the LRA from Lufil because Lufil's employees fell outside the scope of NUMSA's constitution and could not become members of NUMSA.
The Constitutional Court upheld the decision of the Labour Court, and stated the following:
- The question of whether NUMSA was entitled to represent the dismissed employees by virtue of the provisions of section 161(1)(c) "did not arise". This was because both NUMSA and the dismissed employees were represented by a firm of attorneys in the Labour Court proceedings, as envisaged in section 161(1)(a).
- Section 200 determines a trade union's legal standing in the Labour Court. In terms of section 200(1)(a), it may act in its own right or interest. In terms of section 200(1)(b), it is entitled to act on behalf of any of its members. In terms of section 200(1)(c)) it may act in the interests of any of its members. NUMSA could not rely on section 200(1)(a) to obtain legal standing because it was not acting in its own interest. More importantly, it could not act on behalf of the dismissed employees in terms of the other two subsections because they were precluded, by virtue of NUMSA's constitution, from being a member of NUMSA.
- Where a trade union performs any act that deviates from or is contrary to, its constitution, that act is ultra vires (beyond its powers) and null and void. In such a case, an individual may approach a court to interdict the ultra vires act. Referring to its decision inLufil the Court said the following:
"NUMSA's constitution restricts its registered scope to workers in the metal and related industries. The dismissed employees were working in the animal feeds industry when they applied for membership in the union. They were not eligible for membership for the simple reason that they were employed outside NUMSA's registered scope. Their admission was, and remains, an act that is beyond NUMSA's powers as defined in its constitution."
- The centrality of a union's constitution is underscored by section 4(1)(b) of the LRA, which provides that every employee has the right to join a Union "subject to its constitution".
- The LAC had distinguished between a situation where a union is seeking organisational rights (and is relying on employees who cannot be its members to show its representativity) and a situation where the union is seeking to represent employees in litigation. A union could not rely on non-members to bolster its representation when seeking organisational rights but it could represent non-members in litigation. The Constitutional Court rejected this distinction on the following terms:
"Nothing could be clearer. There is no ground for drawing a distinction between a trade union's representation of employees when enforcing organisational rights and representation in an unfair dismissal dispute, as submitted by NUMSA. That distinction is both illogical and at odds with the principle that a trade union has no powers beyond those conferred by its constitution. It would mean that NUMSA is entitled to represent the employees in an unfair dismissal dispute because they are members of the union; but it cannot exercise organisational rights on their behalf, because they are not members.
It is untenable to say that a person is a member of a trade union for one purpose, but not for another, as counsel for NUMSA fairly conceded. The union either has the power under its constitution to admit the dismissed employees as members, or it does not. There can only be one answer to the question: Can the dismissed employees become members of NUMSA? The answer is no. As this Court held in Lufil: "NUMSA is precluded from concluding membership agreements with workers who fall outside its scope'."
- The issue in this case was not about the right of the dismissed employees to be represented by a union of their choice, nor their right of access to court; these rights were not implicated at all. Rather, the issue was whether NUMSA could act beyond the bounds of its constitution. The dismissed employees had the right to join and be represented by any union whose registered scope permits them to be members and the issue had nothing to do with interference in the internal affairs of the union.
- NUMSA's submission that preventing it from representing the dismissed employees in the Labour Court limited their right to freedom of association, and lacked merit. As in Lufil, there can be no suggestion of an infringement of the rights contained in sections 18 and 23 of the Constitution where the union itself has chosen to circumscribe its scope of operation in its constitution.
Comment
Put simply, the importance of this case is that unions are strictly bound by the confines of their constitutions and employees may only become members of a union if its constitution permits it. The representation rights conferred upon unions by the LRA do not grant a union standing to represent non-members in disputes before the Labour Court if the employees are prohibited by the union's constitution from becoming members of the union. Arguably, the same would apply to representation at the Commission for Conciliation, Mediation and Arbitration.
Reviewed by Peter le Roux, Executive Consultant in ENS' Employment Practice
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