South Africa: Unions May Litigate On Behalf Of Employees In Sectors Falling Outside The Scope Of Their Constitution

The South African Labour Appeal Court ("LAC") recently handed down a judgment in the matter between the National Union of Metal Workers of South Africa ("NUMSA") and Others v Afgri Animal Feeds (Pty) Ltd where it had to determine whether NUMSA was entitled to represent the second to further appellants ("the employees") in their unfair dismissal claim before the Labour Court. This despite all of the employees being employed in a sector that fell outside the scope of NUMSA's own constitution.

Background

The employees were dismissed by Afgri after engaging in an unprotected strike at Afgri's premises. The employees then referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration ("CCMA"). Following an unsuccessful conciliation, the CCMA issued a certificate declaring the dispute unresolved. NUMSA and the employees, represented by their legal representative, then referred an unfair dismissal dispute to the Labour Court.

During the course of the judgment, the court considered various issues. The most relevant for the purposes of this ENSight was whether or not NUMSA was entitled to represent the employees, this despite the fact that they fell outside the scope of NUMSA's constitution – the constitution did not cover employees engaged in the production of animal feeds.

Judgment of the Labour Court

The main issue before the court concerned Annexure B of NUMSA's constitution which deals with the scope of NUMSA's activities and provides that "the Union shall be open to all workers employed in any of the following industries...". The Annexure then goes on to list a number of industries. The manufacture of animal feeds, the sector in which Afgri operates, was not included in this list.

In its judgment, the court considered the landmark decision concerning a union's right to represent employees who fall outside its scope, handed down by the Constitutional Court in NUMSA v Lufil Packaging (Isithebe) and Others ("Lufil"). There, the Constitutional Court found that membership of a union by an employee who was employed in a sector that fell outside of the scope of the union's constitution, was invalid and void and that any act said to have been taken as a consequence of such purported membership would be invalid. As was made clear in the Lufil decision, a voluntary association like NUMSA is bound by its constitution and has no powers beyond such constitution.

The preliminary point was therefore upheld, with costs ordered against the union.

Submissions before the Labour Appeal Court

On appeal to the LAC, the appellants took issue with the reliance placed on the Lufil decision by the Labour Court, a matter which concerned organisational rights, and not whether NUMSA could represent individual employees in unfair dismissal proceedings. The current matter, they contended, was distinguishable in that it concerned the individual right of an employee to representation, which did not affect the employer or any third party.

In opposing the appeal, Afgri stated that the issue before the LAC was whether a union could ignore its own constitution, by purporting to represent employees who do not qualify for membership in breach of section 161 of the Labour Relations Act, 1995 ("LRA"). Afgri went on to argue that the wording of section 161 was clear and that it would invite "chaos and confusion" if a union had legal standing to act for employees excluded from the union's constitutional scope, thereby breaching the union's constitution. As a result, it was submitted that the LRA did not permit NUMSA to represent the employees in circumstances where they did not qualify for membership of the union.

Judgment by the LAC

The LAC reasoned that NUMSA was a party to the proceedings in terms of section 200(2) of the LRA, as the union purported to act on behalf of, or in the interest of, its members and was therefore not acting in terms of section 161.

The LAC found that there is a distinction between individual employee rights and collective bargaining rights. In the case of the former, an individual has a right to choose a representative in unfair dismissal or unfair labour practice disputes. Moreover, different considerations were present in unfair dismissal disputes compared to collective bargaining disputes. In collective bargaining, special industry knowledge is needed. In unfair dismissal disputes, one needed to consider fairness and the right of the employee to representation in individual dispute proceedings.

The relationship between a trade union and its members is a private matter and can only be interfered with if delictual harm is proved. Further, the CCMA Rules provide that a party to a dispute may be represented at arbitration proceedings by any member of that party's registered trade union. This was re-emphasised in NUMSA obo Mabote v CCMA, which held that the CCMA Rules give employees and their chosen trade union an unfettered right to represent the employee in arbitration proceedings, which is in accordance with the right to freedom of association.

The LAC held that the relationship between a trade union and its members is a voluntary and consensual one, aimed at the promotion of convenience and the preservation of rights. However, when a trade union acts outside the scope of its constitution, the trade union is limited in the representation it can provide to the employee, and will not be entitled to bargain collectively with the employer on behalf of that employee. However, it would be able to represent the employee in an individual dispute, as this representation is aimed at providing effective access to justice and redress to the employee in accordance with the Constitution and labour legislation.

The LAC accordingly held that the Labour Court erred in finding that NUMSA's referral of the matter to the Labour Court was invalid and void, and in finding that the union was not entitled to bring proceedings before it.

It remains to be seen whether this interpretation by the LAC will survive scrutiny by the Constitutional Court, should the issue be considered there. However, until that happens, employers should take note that this LAC decision remains a binding precedent and arguably entitles a trade union to represent any employee at a CCMA hearing that is not dealing with organisational rights, regardless of whether that employee is in fact entitled to be a member of that union.

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