The simple answer is: no, it is not. This issue was recently decided by the Constitutional Court in NUMSA.
The facts were the following. NUMSA had adopted a constitution that, inter alia, set out its scope of membership. Initially, the scope of membership was largely made up of the metal and related industries. NUMSA had prior to this case amended its constitution to include industries that were not related to the metal industries. Its constitution made provision for such amendments to be effected by its Central Committee from time to time. It then wished to acquire membership at Lufil Packaging (Isithebe) – a company in the paper and packaging industry.
The paper and packaging industry fell outside of the scope of membership in NUMSA’s constitution. NUMSA then acquired 70% of the employees of Lufil Packaging (Isithebe) as members, without amending its constitution to include the paper and packaging industry as part of its scope of membership.
With this new membership, NUMSA sought organisational rights in terms of sections 12 to 16 of the Labour Relations Act 66 of 1995 (LRA) and Lufil Packaging (Isithebe) refused to grant such rights on the ground that NUMSA relied on membership it had acquired in breach of its constitution and, thus, unlawfully. A dispute ensued, which made its way from the CCMA right through to the Constitutional Court.
The Constitutional Court had to determine whether to grant NUMSA leave to appeal, the Labour Appeal Court having found in favour of Lufil Packaging (Isithebe). The Court refused to grant NUMSA leave to appeal and in the process made findings that confirmed the binding nature of a trade union’s constitution.
The applicable legal framework was the following. Section 195(1) of the LRA provides that a trade union may apply to the Registrar for registration if it, inter alia, adopts a constitution that meets the requirements set out in section 195(5) and (6) of the LRA. Section 195(5) of the LRA requires a trade union constitution to, inter alia, prescribe qualifications for and admission to membership, establish the circumstances in which a member will no longer be entitled to the benefits of membership, provide for termination of membership, prescribe rules for the convening and conducting of meetings, establish the manner in which decisions are to be made, and prescribe a procedure for amending the constitution. Section 4(1)(b) of the LRA provides that every employee has the right to join a trade union, subject to its constitution.
National Union of Metalworkers of South Africa v Lufil Packaging (Isithebe) (A Division of Bidvest Paperplus (Pty) Ltd) and others, case number CCT172/19, delivered on 26 March 2020,
http://www.saflii.org.za/za/cases/ZACC/2020/7.html.
Ibid, paragraphs [37], [47] and [52].
Ibid.
The Constitutional Court held that the constitution of a trade union constitutes an agreement entered into by its members and it is legally binding on them. Further, the purpose of a union’s constitution is to give effect to the legitimate government policy of collective bargaining at sectoral level. Furthermore, the registration of a union and the requirement that it adopt a constitution were meant to uphold the core constitutional values of accountability, transparency and openness. Allowing the union to contravene its own constitution would violate these constitutional values.
Having determined that a union’s constitution was a contract between its members, the Constitutional Court held that it should be interpreted in the same manner that contracts are generally interpreted, preferring a sensible meaning over “one that leads to insensible or un-businesslike results or undermines the apparent purpose of the document”.
The Constitutional Court held that admitting to membership employees who fall outside of the scope of membership set out in a union’s constitution is ultra vires and invalid. As the limitation of membership was self-imposed by NUMSA itself, the Court held that NUMSA was precluded from complaining about a limitation of its members’ freedom of association.
The Constitutional Court held that the judgments NUMSA relied on, namely MacDonald’s Transport and Mabote were distinguishable on the facts because they dealt with the right of employees to be legally represented by trade unions of their choice in disciplinary and arbitration proceedings. In essence, the Court held that a union may legally represent a person who is not its member provided the employee chooses to be represented by it; but is not entitled to engage in collective bargaining for an employee who is not its member.
Despite the fact that NUMSA could easily have avoided the litigation in this matter by amending its constitution, as it had done in the past, to include the paper and packaging industry in its scope of membership, the Court dismissed NUMSA’s case with no order as to costs.
Important lessons from the Constitutional Court’s judgment are that when a trade union seeks an employer to grant it collective bargaining rights in the workplace, the employer is entitled to refuse if the union’s conduct in seeking such rights is in breach of its own constitution. A trade union is not allowed to breach its constitution as it is a binding agreement between its members on the basis of which it was registered under the relevant provisions of the LRA.
Ibid, paragraph [64].
Ibid, paragraph [53].
Ibid, paragraph [56].
Ibid, paragraphs [46], [54] and [62].
Ibid, paragraph [68].
MacDonald’s Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union (2016) 37 ILJ 2593 (LAC).
National Union of Mineworkers obo Mabote v CCMA (2013) 34 ILJ 3296 (LC).
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