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Trade unions must comply with their own constitutions before enforcing organisational rights

1 April 2020
– 4 Minute Read


In a majority judgment handed down on 26 March 2020, the Constitutional Court confirmed that trade unions are bound by the membership requirements defined in their own constitutions. A trade union may only enforce its organisational rights if employee members are eligible to be members of the trade union in the first place, in accordance with the eligibility requirements in the trade union’s constitution.

The outcome of this judgment was that the National Union of Metalworkers South Africa (NUMSA) was found to be acting ultra vires when it admitted membership of individuals who fell outside the scope defined in its constitution. Consequently, NUMSA could not enforce its organisational rights under the Labour Relations Act (LRA), even though 70% of Lufil Packaging (Pty) Ltd’s (Lufil’s) employees were registered as NUMSA members.

The matter has its genesis in January 2015 when NUMSA approached Lufil with a request that Lufil deduct union fees for NUMSA’s members in Lufil’s employ. NUMSA’s request was refused on the basis that the industry in which Lufil operates, being the paper and packaging industry, does not fall within NUMSA’s scope as defined in the trade union’s constitution.

In pursuit of this and other organisational rights, NUMSA referred a dispute to the CCMA. The arbitrator found in NUMSA’s favour, holding that NUMSA was entitled to organisational rights including having Lufil deduct union fees from member employees. On review, the Labour Court upheld the CCMA’s award, finding that NUMSA was a registered trade union and its membership was sufficiently representative in the workplace. NUMSA was therefore entitled to exercise its organisational rights.

Lufil finally found joy at the Labour Appeal Court (LAC) where the crisp legal issue was whether NUMSA qualified for organisational rights even though Lufil’s employees were not eligible to be members of NUMSA. The LAC held that unions only have those powers that are conferred on them by their constitutions. Accordingly, a trade union cannot create a class of members outside of the provisions of its constitution.

In a judgment penned by Victor AJ, the Constitutional Court agreed with the LAC. In considering the nub of NUMSA’s argument, being that it was not bound by the scope of its own constitution, the Constitutional Court’s reasoning was as follows:

  • The constitution of a trade union is legally binding, and effect must be given to the ordinary language of the document. In order to be registered, a trade union must have a constitution that governs substantive matters including the nature, scope and powers of the organisation.
  • The trade union’s constitution is an important instrument to give effect to the legitimate government policy of orderly collective bargaining.
  • The LRA prescribes the essential contents of a union’s constitution, which include, inter alia, the requirements or qualifications necessary for union membership.
  • Section 4(1)(b) of the LRA, which provides that employees are free to join any trade union subject to its constitution, is in line with international practice which permits voluntary associations, like trade unions, to self-regulate by drawing up their own constitutions and rules.
  • On the present facts, NUMSA had prescribed eligibility requirements for membership by stating in its constitution that its scope was the metal industry, which did not include Lufil’s employees. NUMSA was accordingly bound by its self-imposed membership requirements.
  • It would be ‘insensible’ and undermine the purpose of the constitution to permit an interpretation that allows NUMSA to disregard its own scope and membership requirements.
  • Furthermore, NUMSA’s contention is unsustainable when weighed against the fact that it is open to NUMSA, under the auspices of the LRA and its own constitution, to amend its constitution to broaden the eligibility requirements to include a new class of members.
  • In the circumstances, any admission of members outside the terms of the constitution is ultra vires and invalid.

This case is important for employers, employees and trade unions alike. Employers must ensure that their employees are in fact eligible to be members of trade unions who seek to enforce organisational rights. Furthermore, it is advisable to keep up-to-date versions of trade unions’ constitutions, particularly in instances where new trade unions are trying to introduce themselves in the workplace.