Update: Union representation in litigation disputes

Over the years, the question of whether an aggrieved employee may be represented in litigation proceedings by any trade union has been the subject of some uncertainty. That was until 2022, when the question was considered by the Labour Appeal Court (LAC) in NUMSA & Others v Afgri Animal Feeds (Ltd) (2022) 43 ILJ 1998 (LAC) where the LAC found that employees have the right to be represented by a trade union of their choice in litigation proceedings, regardless of whether the trade union’s constitution covers the industry in which the employees are employed. However, for collective bargaining rights, a trade union cannot bargain collectively with the employer in an industry outside of its scope (as the court saw this as a separate issue). To read our 2022 alert about this matter, click here.

24 Jun 2024 2 min read Employment Law Alert Article

At a glance

The Constitutional Court has held that a trade union has no authority to represent dismissed employees who are precluded from becoming members of the trade union in terms of its constitution.
This judgment is significant because it clarifies that the right of employees to be represented by trade unions of their choice in both arbitration and Labour Court proceedings is not unfettered.
A trade union must confine membership to workers in industries that accord with its constitution.

The employer appealed to the Constitutional Court and on 21 June 2024 the court delivered its judgment. The Constitutional Court disagreed with the reasoning of the LAC judgment and the employer’s appeal was successful. In short, the Constitutional Court held that a trade union has no authority to represent dismissed employees who are precluded from becoming members of the trade union in terms of its constitution. This is consistent with the earlier judgment of the Constitutional Court in respect of a trade union seeking organisational rights.

The reasoning of the Constitutional Court can be summed up in the following paragraphs from the judgment:

“One of the effects of legal personality is that a trade union, as a body corporate, may perform any act in law which its constitution requires or permits it to do. The constitution sets out the union’s powers – a prescribed requirement for registration under section 95(5) of the LRA [Labour Relations Act 66 of 1995]. The constitution corresponds with the articles of association of a company and may be enforced in like manner. Where a trade union performs any act that deviates from or is contrary to its constitution, that act is ultra vires (beyond its powers) and null and void. In such a case, an individual may approach a court to interdict the ultra vires act …

There is no ground for drawing a distinction between a trade union’s representation of employees when enforcing organisational rights and representation in an unfair dismissal dispute, as submitted by [the trade union]. That distinction is both illogical and at odds with the principle that a trade union has no powers beyond those conferred by its constitution.”

This judgment is obviously significant because it clarifies that the right of employees to be represented by trade unions of their choice in both arbitration and Labour Court proceedings is not unfettered. A trade union must confine membership to workers in industries that accord with its constitution. Where employees fall outside of the scope of a particular industry, the trade union can neither admit such employees as members nor represent them in litigious proceedings.

To read the Constitutional Court judgment, click here.

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