In April 2019, the parties concluded a recognition agreement in terms of which the Respondent recognised the Applicant’s organisational rights as provided for in section 12 and 13 of the Labour Relations Act (LRA).
Pursuant to the judgment in NUMSA v Lufil Packaging and Others 2020 (6) BCLR 725 (CC) wherein the Constitutional Court upheld a decision that a trade union cannot create a class of membership outside the provisions of its own constitution, the Respondent terminated the recognition agreement between the parties.
As basis of its termination, the Respondent contended that it was precluded from upholding the recognition agreement as it was void as a result of the Applicant not having a right to organise within the education sector.
Aggrieved, the Applicant sought to review this decision in terms of section 33 of the Constitution and provisions of the Promotion of Administrative Justice Act (PAJA). It contended that the Labour Court had jurisdiction to hear the matter in terms of section 157(2)(a) and (b) of the LRA.
The Labour Court dismissed the Applicant’s contention that its application involved the violation of a fundamental right enshrined in section 33 of the Constitution by an organ of State as an employer, as such the court had jurisdiction to determine the matter in terms of section 157(2)(a) and (b) of the LRA.
With reference to the principle of subsidiarity, the court held that the Applicant’s remedies lay in the LRA as organisational rights and disputes related thereto are specifically provided for. In reaching this decision, the court reaffirmed that labour issues are to be pursued and dealt with through the purpose-built mechanisms of the LRA, which is a specialised piece of legislation.
Accordingly, the court held that the application stood to be dismissed as the dispute between the parties was purely a labour issue. Any reliance on section 33 of the Constitution and PAJA was misplaced, and unfortunate.
Notwithstanding, having substantially disposed of the matter at this stage, the court went on to determine whether the Respondent’s decision to retract from the recognition agreement constitutes administrative action. The court reemphasized that employment and labour issues do not amount to administrative action within the meaning of PAJA.
Due to the Applicant being precluded from admitting members from outside its stipulated industries, it was not entitled by law to demand the enforcement of organisational rights. As such this application did not fall within the purview of PAJA because no administrative action had been taken by an organ of state, as the Respondent had merely complied with thejudgment in Lufil and retracted a void agreement, which under the circumstances doesn’t constitute administrative action or fall within the purview of PAJA.
This judgment reaffirms that trade unions are only permitted to recruit membership in line with their constitutions. Trade unions wishing to challenge any such decisions ought to follow the process specifically outlined in the LRA.