Revisiting the entitlement to exercise organisational rights in the workplace

It is trite law that in order for a union to exercise organisational rights in a workplace, the scope of the union’s constitution must provide for the particular business of the employer (see Food and Allied Workers Unioin v Ferucci t/a Rosendal Poultry Farm (1992) 13 ILJ 1271 (IC) and SA Commercial Catering and Allied Workers Union on behalf of Members and King Edward VII School (2008) 29 ILJ 204 (CCMA)).

When confronted with this well-established principle, unions often respond to employers by quoting dicta from case law which, so they aver, serves as clear authority for the opposite position. As a result, employment lawyers find themselves having to draw the employer’s attention to the fact that the union failed to acknowledge one crucial aspect of their ‘authority’: context.

One such oft quoted judgment is that of National Union of Metalworkers obo Mabote v Commission for Conciliation, Mediation and Arbitration and others 2013 34 ILJ 3296 (LC). The following dictum from that case, when viewed in isolation, is enough to make the average employer think twice about their decision to deny a particular union recognition on the grounds of its constitutional scope:

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 employer’s organisation – to deny a worker that right, based on the trade union’s constitution.

However, this statement cannot be divorced from the facts and legal question in the Mabote judgment. Briefly, the case concerned the issue of whether or not an employee is entitled to be represented at arbitration by a trade union of which such employee is a member, if the employee’s services to the employer do not fall within the scope of the union’s constitution. In this case an employee referred an unfair dismissal dispute to conciliation and later to the CCMA. NUM, which had been exercising organisational rights in the workplace of the employer, represented the employee at the CCMA. The employer took issue with this, arguing that the scope of NUM’s constitution did not provide for the business of the employer and that the employee therefore could not be represented by NUM.

The Labour Court held that s4(1)(b) of the Labour Relations Act, No 66 of 1995, which provides that “every employee has the right to join a trade union, subject to its constitution”, serves to regulate “the relationship between the trade union and its members inter se.” Therefore the court did indeed hold that an employer cannot prohibit an employee from joining a trade union of her choice (and being represented by such union at arbitration) because of the scope of that union’s constitution.

However, a distinction that must be drawn is that of the relationship between a union and its members inter se on the one hand and the relationship between the employer and its employees on the other. The latter relationship concerns, among other things, the exercise of organisational rights in the workplace. While any employee is certainly free to join a trade union of their choice, it does not automatically follow that the relationship between the union and the employer is affected by this. Nor does the Mabote case suggest that it is. The Mabote case is therefore a finding regarding the relationship between a union and its members and as such is authority for the fact that a union may represent its members at arbitration, regardless of whether such union is entitled to exercise organisational rights in the workplace.

Thus, the well-established principle that unions are not entitled to exercise organisational rights in the workplace where their constitutions do not cover the scope of the employer’s business, remains firmly intact.