Organisational rights, such as the union’s access to the workplace, deduction of membership fees, shop steward representation, union activities, and right to disclosure of information, can be conferred on a trade union in a workplace. However, this is subject to a registered union, sufficiently represented, and whether the employer’s industry falls into the union’s chosen scope of application of its constitution.
Section 95(5)(b) of the Labour Relations Act makes it peremptory for a union to have a constitution to qualify for registration.
Section 4(1)(b) of the Labour Relations Act 66 of 1995 (hereafter referred to as the LRA)makes provision that every employee has a right to freedom of association to join a trade union, subject to its constitution. Section 8(1)(a)(i) of the LRA provides that every trade union had the right to determine its constitution.
Employees’ right of freedom of association and a trade union’s right to Organisational rights in a place of employment is limited by the scope of a union’s chosen constitution, which, inter alia, stipulates in which employer industries that specific union may operate. Suppose a trade union’s scope of application in its constitution does not make provision for the employer’s industry. In that case, the union cannot validly recruit employees as members or exercise organisational rights in the workplace, as they will act outside of the scope of their legal power.
In the case of NUMSA v Lufil Packaging Case No. Cct172/19 the Constitutional Court had to determine whether a trade union can disregard its own defined scope of application set out in its constitution and demand organisational rights from an employer whose industry falls outside the union’s constitution:
The trade union argued that if it were prohibited from recruiting employees falling outside of the scope as defined in its constitution, it would limit the right to freedom of association and the right to fair labour practices.
The court held that the trade union defined the scope of its constitution, serving the purpose of prescribing eligibility of members to join the union.
The union had exercised its right to formulate its constitution, consistent with section 95 of the LRA.
A voluntary association, such as a trade union, is bound by its constitution and the categories of members it chooses and has no power outside of its constitution.
The union’s constitution is binding on the union, and employees cannot lawfully join a union operating outside their employer’s industry if that industry is not included in the union’s constitution.
Should a union obtain membership applications and request organisational rights in a place of employment, employers need to request and verify a trade union’s constitution and scope of application to determine whether the employer’s industry is included in the constitution. Should an employer find that the constitution does not make provision for their place of employment, the union has no organisational rights in the workplace.
About the Author:
Elsje-Marie started her career at SEESA in 2020 and is currently a Legal Advisor at SEESA’s Nelspruit Office. She obtained her LLB degree at the University of Pretoria in 2018 and was admitted as an attorney in 2020.
Resources:
- NUMSA v Lufil Packaging Case No. Cct172/19;
- Labour Relations Act 66 of 1995;
- https://www.cliffedekkerhofmeyr.com/en/news/publications/2019/Dispute/dispute-resolution-27-february-back-to-basics-locus-standi-in-litigation.html;
- https://www.theartmey.co.za/NewsResources/NewsArticle.aspx?ArticleID=3322;
- SEESA MEMO NO: 25/2020 – A UNION`S CONSTITUTION AND ORGANISATIONAL RIGHTS IN A WORKPLACE (PART 3);