29 August 2022 by and Employment Law Alert

Union representation in litigation disputes

Can a union represent its members in a sector outside its constitution in litigation with an employer or former employer? We discussed this topic on a podcast in July 2022 themed: “Union representation: It’s my union and I’ll cry if I want to”, which can be accessed here.

In South Africa, unions have extensive rights. The right of a union to bargain was, however, curtailed in 2020 by the Constitutional Court when the court found that a union was restricted to organising within the scope of its constitution. But what is the case in other forms of litigation?

In National Union of Metal Workers of South Africa v Lufil Packaging (Lufil Packaging), the Constitutional Court held that a trade union cannot recruit members who fall outside the scope of its constitution and seek to exercise organisational rights in relation to those members. This begs the question of whether a trade union can represent employees who are employed in a sector which falls outside the scope of a union’s constitution in individual dispute proceedings (as opposed to organisational rights disputes). In the recent 2021 judgment of NUMSA & Others v Afgri Animal Feeds (Ltd) (Afgri Animal), discussed below, the Labour Appeal Court (LAC) was called upon to determine this question.

The employer, Afgri Animal Feed (Afgri), conducts business in the agricultural sector, which sector falls outside the scope of the National Union of Metal Workers of South Africa’s (NUMSA) constitution. Notwithstanding this, NUMSA sought organisational rights from Afgri. In line with the Constitutional Court’s judgment in Lufil Packaging, Afgri refused to grant organisational rights to NUMSA. As a result, 137 employees participated in an unprotected strike. An internal disciplinary hearing was conducted, wherein the employees were initially represented by an official from NUMSA, until the chairperson directed that the official leave the hearing apparently due to his disruptive behaviour. The employees were eventually dismissed.

Aggrieved by their dismissals, the employees referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Thereafter, NUMSA, on behalf of the dismissed employees, proceeded to file an unfair dismissal claim at the Labour Court. In the Labour Court, Afgri raised an objection that because the employees were employed in a sector outside the scope of NUMSA’s constitution, NUMSA had no standing to refer the claim, or to represent the employees in the court proceedings.

In response to the objection, NUMSA provided powers of attorney signed by the employees recording NUMSA to be their “lawful trade union and agent”. The question before the court was thus, given that the dismissed employees were employed in a sector which falls outside the scope of NUMSA’s constitution, were the employees still entitled to be represented by NUMSA in the Labour Court?

Placing reliance on Lufil Packaging, the Labour Court found in favour of Afgri. The Labour Court held that membership of a union by an employee who is employed in a sector which falls outside of the scope of the union’s constitution, is invalid and void ab initio; and that any act said to have been taken as a consequence of such purported membership would be invalid. Since the employees were employed in a sector which fell outside of the scope of NUMSA’s constitution, its act of referring the matter to the Labour Court was invalid. Thus, the Labour Court found that NUMSA had no standing to institute the claim.

In the LAC

The LAC disagreed with the Labour Court and reasoned that it is not the business of the employer to concern itself with the relationship between individual employees and their union as the employees enjoy the right to choose their own representatives in unfair dismissal or unfair labour practice disputes.

The LAC further reasoned that it is for the trade union to decide whether or not to accept an application for membership and whether or not that member is covered by its constitution. It could not have been the intention of the legislature to unduly restrict the right to representation by a trade union to the extent that it is up to a third party, such as an employers’ organisation, to deny a worker that right, based on the trade union’s constitution.

The LAC noted that CCMA rules read together with the Labour Relations Act 66 of 1995, grant an employee and their chosen trade union “an unfettered right for the union to represent the employee in arbitration proceedings”, noting that this right accorded with the constitutional right to freedom of association and access to justice.

With reference to Lufil Packaging and the Afgri Animal judgments, the legal position with respect to union representation can be summed up as follows: employees may be represented by trade unions of their choice in both arbitration and Labour Court proceedings. This right of union representation is unfettered. However, with respect to bargaining rights, the principle in Lufil Packaging applies in that where an employee obtains membership of a union, the scope of operation of which does not include the industry in which the employee is employed, that union will not be entitled to bargain collectively with the employer.

The LAC decision is heading to the Constitutional Court and thus the position may change in time.

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