The question then arises as to whether an employer may interrogate the internal affairs of a Union and hold the Union to the provisions of its constitution. As one would expect of the law, the answer is that 'it depends'.
A union’s locus standi to act in its own interest or in the interest of any of its members is found in section 200 of the LRA. In Deonarain v Fidelity Cash Management Services (2001) 22 ILJ 530 (CCMA) the request for arbitration was signed by an official of a union that the employee in question had never been a member of. The employer raised a point in limine stating that the request was defective. The Commissioner upheld the point and found that as the employee was not a member of that union, the request for arbitration was defective.
Employers have long sought to interrogate Unions on this basis until the Labour Appeal Court in MacDonald's Transport Upington (Pty) Ltd v Association of Mineworkers & Construction Union & others (2016) 37 ILJ 2593 (LAC) issued a stinging rebuke. In this matter, Sutherland JA stated, inter alia, as follows:-
“ Bluntly, what business is it of an employer, in such circumstances, to concern itself with whether membership dues are up to date or any other aspect of the relationship between individual employees and their union? In my view, there is no basis at all.”
This pronouncement dealt the proverbial deathblow to employers wishing to take locus standi points based on Union membership.
Collective Bargaining Disputes
The judgment in MacDonald’s is more nuanced than Sutherland JA’s pointed conclusion as set out above. One need only look to the preceding paragraph which states as follows:-
“ Although this matter can be decided on the interpretation issue alone, as did the Labour Court, the conduct of the appellant is so egregious that it is appropriate to deal with the tactic adopted by it, ie to challenge the right of its dismissed employees to demand in dismissal proceedings before an arbitration forum to be represented by a union of their choice of which they claimed to be members.” (Emphasis added.)
The conclusion provided in MacDonald’s is thus not a blanket exclusion for employers to interrogate the internal affairs of a union. However, in National Union of Metalworkers of SA v Lufil Packaging (Isithebe) (A Division of Bidvest Paperplus (Pty) Ltd) & others (2020) 41 ILJ 1846 (CC), the National Union of Metalworkers of South Africa (“NUMSA”) sought to challenge this.
The Lufil matter concerned NUMSA’s attempt to organise at a workplace that operated in an industry which fell outside the scope of its Constitution. Lufil refused to recognise NUMSA on this basis. The Constitutional Court found that NUMSA was bound to the provisions of its Constitution and that NUMSA’s conduct was circumscribed by the provisions of its Constitution. The Court found that employers are entitled to hold Unions to the provisions of their constitutions and NUMSA was thus prohibited from organising at Lufil’s workplace.
In Association of Mineworkers & Construction Union v UASA - The Union & others (2021) 42 ILJ 327 (LAC) the Labour Appeal Court was required to determine a dispute concerning organisational rights. The LAC reiterated the sentiments expressed in Lufil and found that employers are entitled to challenge the internal affairs of a Union in respect of a dispute which concerns organisational rights.
The general sentiment that employers are never entitled to interrogate the internal affairs of a union is misplaced. It appears from the case law that employers are not entitled to raise this issue in the context of an employee’s right to representation during arbitration proceedings.
However, the Labour Appeal Court and the Constitutional Court have both confirmed that employers are fully entitled to require that Unions comply with the provisions of their constitutions, particularly in the context of organisational rights disputes.
Employers should seek specialised legal advice when dealing with Unions. A proper understanding of the legal implications of permitting or refusing a Union organisational rights is essential to a process which often becomes a ‘game of inches’.