On occasion an employee joins a trade union which operates outside of the industry in which their employer operates.  The Constitutional Court held that such a trade union does not have the power to represent the employee in CCMA and Labour Court proceedings if the registered scope of the trade union precludes the employee from becoming its member. 

The National Union of Metalworkers of South Africa (Numsa) had referred unfair dismissal disputes on behalf of former AFGRI employees to the CCMA.  When conciliation failed, Numsa referred the dispute to the Labour Court.  Before the Labour Court, the employer challenged Numsa’s representation of the employees and disputed the dismissed employees’ membership of Numsa.  It argued that Numsa was precluded from representing the members given that its constitution restricts membership to workers in the metal and related industries, whereas the dismissed employees had been employed in the animal feed industry.  The Labour Court upheld the challenge, finding that Numsa lacked legal standing and that its referral of the disputes was invalid and void.  The Labour Appeal Court held that Numsa had legal standing.

On appeal, the Constitutional Court considered the following:

  • Section 200 of the Labour Relations Act, 1995 (LRA) determines a trade union’s legal standing, namely that it may act in its own right or interest, or on behalf of any of its members, or in the interests of any of its members.   In this instance, Numsa sought to act in the interests of the employees as its members.
  • Numsa adopted a constitution in accordance with section 95 of the LRA which complies with the prescribed requirements, including setting out the prescribes qualifications for and admission to membership.
  • As a legal personality, a trade union can perform any act in law required or permitted by its constitution.  An act which deviates from or is contrary to a trade union’s constitution is outside its powers(ultra vires) and null and void.
  • In terms of section 4(1)(b) of the LRA every employee has the right to join a trade union, subject to that trade union’s constitution. 
  • A trade union’s constitution is a public document.
  • A trade union’s constitution allows for transparency. 

The Constitutional Court concluded that:

  • A trade union is bound by its constitution.
  • A trade union cannot act beyond its constitution, including operating outside of its registered scope. 
  • Permitting the joining of a trade union by members who fall outside the registered scope of the trade union is beyond its powers and invalid. 

Applying its conclusions to the facts of the case, the Constitutional Court held that the dismissed employees were not eligible for membership of Numsa because they were employed outside of Numsa’s registered scope and, as a result, Numsa lacked authority to represent them in the Labour Court proceedings.   It further held that there is no basis to draw a distinction between a trade union representing employees in relation to organisational rights and representation in an unfair dismissal dispute and that, in both instances, a trade union has no powers beyond what is permitted in its constitution.

This judgment highlights the importance of a trade union’s constitution in determining to what extent the constitution may restrict a worker’s membership of a trade union and, in turn, a trade union’s representation of a worker.  The principle will apply to any registered association governed by a constitution unless the law provides otherwise.

AFGRI Animal Feeds v NUMSA and Others 2024 (5) SA 576 (CC)