However, in the recent judgment of AFGRI Animal Feeds v NUMSA and Others (CCT188/22) (21 June 2024) the Constitutional Court was yet again called in to untangle a knotty employment law issue; in this case, whether a Union could represent employees in an industry which fell outside the Union’s scope of registration.
The facts were as follows: in September 2017 employees of AFGRI Animal Feeds (‘AFGRI’) embarked on an unprotected strike following AFGRI’s refusal to grant the National Union of Metalworkers of South Africa (“NUMSA”) organisational rights. These employees were dismissed.
The dismissed employees referred their unfair dismissal disputes to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), and then to the Labour Court for adjudication. In the Labour Court NUMSA was cited as an applicant, and the dismissed employees were cited as the second to further applicants.
AFGRI objected to NUMSA’s participation in the proceedings, contending that it did not have the standing or authority to act on behalf of the employees in this matter. AFGRI’s contention was based on NUMSA’s Constitution, which did not permit it to act on behalf of employees engaged in the animal feeds industry.
The Labour Court determined the preliminary point by investigating two issues, (i) whether NUMSA had the right to refer the dispute in its own interest or in the interests of its members, and (ii) whether NUMSA had the right to represent the dismissed employees. The Labour Court considered sections 161(1)(c) and 200 of the Labour Relations Act 66 of 1995 (“the LRA”).
In respect of the first point, the Labour Court found that a Union can only represent an employee if that union is registered and the employee who is a party to that dispute is a member of that union. In respect of the second point, it found that a Union could not act beyond the scope of its Constitution. In short, the Labour Court found that a Union’s Constitution is ‘valid for all enquiries’ and not only those related to collective disputes.
The Labour Appeal Court overturned the decision of the Labour Court. It found that NUMSA was a party to the proceedings as it acted on behalf of its members’ interests and in its own interests in terms of section 200(1)(c) of the LRA. It held that a Union may represent employees who fall outside of the scope of its Constitution because the right to representation and fairness would be implicated if this were not permitted. However, the Labour Appeal Court reiterated that, in these circumstances, a Union would not be entitled to represent employees in collective bargaining disputes. AFGRI appealed this decision to the Constitutional Court.
The Constitutional Court found that the dismissed employees were represented by a firm of attorneys in this dispute and, as such, the question of whether they were represented by NUMSA in the Labour Court (in terms of section 161(1)(c) of the LRA) did not arise.
The Court went on to find that NUMSA had not alleged that it acted in its own interest in these proceedings. As such, NUMSA was acting on behalf of its ‘members’. However, NUMSA’s Constitution does not permit it to act on behalf of any employee outside of the ‘metal and related industries’.
The Constitutional Court reiterated its findings in National Union of Metal Workers of South Africa v Lufil Packagining (Isithebe) (2020) 41 ILJ 1846 (CC) in which it found that a Union is bound by, and should be held to, the provisions of its Constitution.
The Court found that the dismissed employees could not have been members of NUMSA as they were employed outside of the registered scope of NUMSA’s Constitution, and could therefore not lawfully become members of NUMSA. As to the distinction in the law which previously permitted employers to interrogate the membership of a Union in some instances but not in others, the Court found as follows:
“[52] It is untenable to say that a person is a member of a trade union for one purpose, but not for another, as counsel for NUMSA fairly conceded. The union either has the power under its constitution to admit the dismissed employees as members, or it does not. There can only be one answer to the question: Can the dismissed employees become members of NUMSA? The answer is no…”.
The judgment finally clarifies an anomalous position which has mystified labour lawyers for several years. This will have important implications for employers. In simple terms, the judgment makes it clear that employees may only become members of a Union if the Union’s constitution permits it. Where a Union’s constitution only permits it to organise in a particular sector or sectors, any attempt to recruit members in other industries will result in futile attempts to represent those employees, whether in a dispute about organisational rights or any other issue.
In some instances, employers have already formed functional collective bargaining relationships with Unions who are not registered to organise in the sectors relevant to those employers. In other instances, employers have had to keep Unions with little understanding of the industry in which they operate at bay. What the consequences of this judgment will be remains to be seen.
