Can Unions ignore their Constitutions when recruiting members – The Constitutional Court settles the debate

Unions often emerge in specific sectors, in response to certain issues affecting those industries. Their Constitutions often restrict their activity to those sectors. It is not, however, unusual for unions to seek to organise in sectors in which they have no experience or understanding. Employers often face the prospect of having to grant organisational rights to such unions, notwithstanding these difficulties. But may a union really ignore its own constitution to organise in an industry that falls outside of its defined scope?

This was the primary issue before the Constitutional Court in the National Union of Metal Workers of South Africa v Lufil Packaging (Isethebe) and Others (2020) ZACC 7. In this matter, the National Union of Metal Workers of South Africa (“NUMSA”) approached Lufil alleging that it represented some 70% of Lufil’s employees and demanded that Lufil grant it organisational rights at its workplace. Lufil refused to do so on the basis that the industry in which it operated fell outside the scope of NUMSA’s constitution.

NUMSA then referred a dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). The CCMA found, inter alia, that NUMSA was entitled to organisational rights from Lufil and that NUMSA was entitled to organise employees in the workplace notwithstanding its constitution. The Labour Court agreed with this finding on review.

On appeal, the Labour Appeal Court found that unions are only entitled to those powers conferred upon them by their constitution and thus they cannot create a class of members outside the provisions of their constitutions. Accordingly, any decision made outside the union’s constitution is ultra vires and invalid. In the circumstances, NUMSA could not prove its membership since the employees of Lufil that it claimed as members could not, in terms of its constitution, be members of the Union. The Court, therefore, found that NUMSA was not sufficiently representative and upheld Lufil’s appeal.

NUMSA then approached the Constitutional Court and argued several constitutional issues. It argued, inter alia, that the LAC’s judgment infringed on its members’ rights to freedom of association. In this regard, the Constitutional Court found that NUMSA had failed to take into account the potential ‘capture’ of associations. ‘Capture’ means that without having limitations on entry and exit criteria of members, an association may easily have their purpose, character and function distorted.

The Court found that an important consideration is how NUMSA can advance their existing members’ interest at the same time as the interests of employees in the paper and packaging industry. In this regard, the Court found that members may have joined NUMSA in preference to other unions for its knowledge of collective bargaining in the metal industry. Therefore, the Court found that NUMSA’s blatant disregard for the provisions of its own constitution may, in fact, violate its existing members’ rights to associate and disassociate.

The Court furthermore found that the LRA requires that a union have a constitution prior to its registration. The constitution must determine the number of issues including the nature, scope and powers of the organisation. The Court confirmed that a union’s constitution is binding on the union and its members, governs the relationship between them and that the role of a union’s constitution is to give effect to a legitimate government policy of orderly collective bargaining at sectoral level.

The Court accordingly found that there can be no suggestion that there is an infringement of NUMSA’s constitutional rights where a union itself has chosen to circumscribe categories of membership. The Court weighed NUMSA’s argument against the ability of the union to amend its constitution. It was clear from NUMSA’s constitution that the central committee of the union was entitled to amend the scope of its membership from time to time. Accordingly, NUMSA could have simply passed a resolution of its central committee to amend its scope if it sought to admit Lufil’s employees into membership. Importantly, the Court found that an employer is entitled to ensure that a union complies with the provisions of its constitution and this does not constitute external interference in the union’s internal affairs.

The Constitutional Court accordingly found that NUMSA’s application for leave to appeal was not in the interests of justice and dismissed it on that basis.

The judgment is to be welcomed as it constitutes a necessary check on unions who seek to pressurise employers into granting organisational rights in circumstances where they have no knowledge or understanding of particular industries or sectors. It is likely that Unions may in future amend their constitutions to become general unions, in which case they would be entitled to organise at any employers’ workplace.

Written by Courtney Wingfield and Neil Coetzer
of Cowan-Harper-Madikizela Attorneys

Courtney Wingfield of Cowan-Harper-Madikizela Attorneys
Neil Coetzer of Cowan-Harper-Madikizela Attorneys,