29 November 2021 by , and Employment Law Alert

Labour Court declares the re-election of AMCU president unlawful

A trade union is an association of employees who are its members and is defined as such in the Labour Relations Act 66 of 1995 (LRA). Speaking to this fundamental tenet of organised labour in Nkosikho Joni v Association on Mineworkers and Construction Union and Others, the Labour Court was tasked with the question of whether AMCU's president could assume that role despite not being an employee in a sector that the trade union represents.

Nkosikho Joni (the applicant) approached the Labour Court on the basis that his removal from office and his expulsion as member of the Association on Mineworkers and Construction Union (AMCU) were unlawful as he contended that AMCU's president, Joseph Mathunjwa, and its treasurer-general, Jimmy Gama, were ineligible for re-election to office at AMCU’s 2019 national congress.

While the applicant sought relief on various grounds, including an order that his removal and expulsion from AMCU were invalid, we limit our review of the case to the ground on which the applicant was successful: that the appointment of AMCU's president was unlawful given that he was not an employee in the mining sector at the time of his re-election, and this was a prerequisite in terms of AMCU's constitution. How did the Labour Court arrive at such a conclusion?

As a point of departure, section 95(5) of the LRA provides that a trade union must include in its constitution the required qualifications for individuals seeking membership, and the circumstances when membership will terminate. This, in turn, would inform the effect that such requirements may have on AMCU office bearers. To that end, AMCU's constitution provides that membership is open to any worker who is eligible to join it and subscribe to AMCU's terms.

The Labour Court considered three important definitions in AMCU's constitution regarding members and office bearers, as follows:

  • a "member in good standing" is "an employee who is paying his/her stop order subscription deductions in favour of AMCU on a monthly basis and those office bearers who are currently in the organisation”;
  • an office bearer is “an elected member of the branch, region, national and central executive committee”; and
  • the President is “a member elected in accordance with the constitution and hold[s] office as an office bearer".

AMCU distinguished between "sector members" being employees employed in relevant sectors within the trade union's registered scope and "honorary and associate members". The latter membership class cannot exercise a casting vote.

It was argued that for one to be an office-bearer, one must be a member too. The applicant contended, and the Labour Court agreed, that AMCU's constitution indicates that honorary members shall not be eligible to be elected to the role of president because that requires the president to have the casting vote to perform in accordance with the constitution.

Conditions for losing membership

Having considered the qualifications and classifications for eligible membership of AMCU, the Labour Court turned to the question of which circumstances could result in members losing their membership. A member would lose their membership 14 weeks after becoming unemployed in the relevant sectors recognised within AMCU's constitution. However, membership would continue in circumstances where the dismissed member was eligible for honorary membership, and was re-employed in the relevant sectors, or if AMCU was in the process of disputing the member's dismissal.

It was common cause that the president of AMCU was retrenched in the course of 2013 and did not dispute the termination of his employment. As such, he was not an employee at the time that he was re-elected as president, instead he served AMCU on a full-time basis. AMCU's president ceased to be a sector member of AMCU 14 weeks after his employment had been terminated in 2013. It was argued that it was AMCU's policy to allow an office bearer to complete their term of office even if dismissed by their employer and ceased to be an employee in one of the relevant sectors, and if they were to continue in that position, such member would also qualify for re-election to that position as well.

The Labour Court remarked that it would recognise AMCU's policies only to the extent that the alleged policy was not contrary to what was set out in its constitution. This notwithstanding, the court was not presented with evidence to demonstrate that such a policy existed. On the contrary, the facts demonstrated that AMCU had adhered to the dictates of its constitution in previous similar circumstances by striping an office bearer of his status following the termination of his employment where the dismissal had not been challenged. There was official correspondence in that instance which indicated that a member in good standing was defined as a member who was not only up to date with their subscriptions, but who was also an employee.

The Labour Court could not find any clause in the constitution that permitted an official to be eligible for re-election even after being dismissed by the employer where the dismissal had not been challenged. Based on the above, the Labour Court concluded that the re-election of Mathunjwa in September 2019 was unlawful and had to be set aside.

Weighing the retrospective effect

The Labour Court's final task lay in determining whether such a finding may be given retrospective effect as sought by the applicant. This enquiry required the court to balance the interests of justice, the interests of the individual, and the weight of administrative justice in that the undoing of countless transactions and decisions would have a devastating and unintended negative impact on the continued business and operation of such organisation. Ultimately, because the applicant's dispute only arose following his own removal from office and not when AMCU's president was re-elected, the court found that the interests of justice would be best served through a prospective order.

The matter remains unsettled however, as AMCU's leadership has lodged an application for leave to appeal the decision, thereby suspending the effect of the order that was granted.

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