In the unanimous judgment of National Union of Metalworkers of South Africa v Lufil Packaging (Isithebe) and Others [2020] ZACC 7, the Constitutional Court (“CC”) was tasked with the central issue of determining whether a union can ignore its own constitution, which provides for and defines the eligibility for membership as well as whether or not a union can demand organisational rights from an employer whose employees fall outside the scope of its constitution. The CC dismissed the appeal concluding that NUMSA was bound by its own constitution and could not operate outside the provisions of its own constitution.

BACKGROUND

NUMSA represented 70% of Lufil’s employees and sought organisational rights in terms of sections 12 to 16 of the Labour Relations Act 66 of 1995, as amended (“LRA”). Lufil refused to grant NUMSA these organisational rights as its employees fell outside of NUMSA’s registered scope according to its own constitution. The Labour Court dismissed Lufil’s review of the CCMA arbitration award by granting NUMSA organisational rights.

THE LAC FINDINGS

On appeal, the Labour Appeal Court (“LAC”) held that NUMSA was not entitled to organisational rights within Lufil’s workplace, as its employees fell outside the scope of NUMSA’s registered constitution and therefore NUMSA did not have sufficient representativity.

The LAC held that although the commissioner was correct in finding that NUMSA had the locus standi to apply for organisational rights, and refer a dispute to the CCMA, this did not mean that it had the necessary entitlement to those rights in terms of the requirements of the LRA. 

The LAC further held that at common law, a union is bound by the powers conferred upon it by its constitution. The LRA requires unions who seek organisational rights, to register and determine their own constitution providing for and prescribing the criteria for the eligibility of membership. Therefore, any act or decision contrary to its constitution is ultra vires and invalidas it falls beyond the powers of the actor or decision-maker.

THE CC FINDINGS

NUMSA took the LAC decision on appeal to the CC and argued that section 4(1)(b) of LRA was unconstitutional, because it infringed upon the constitutional right to freedom of association and fair labour practices. NUMSA contended that: 

1. the wording of section 4(1)(b) of the LRA and its very own constitution should be interpreted less restrictively considering section 39(2) of the Constitution; and
2. the wording of section 4(1)(b) of the LRA, particularly “subject to its constitution” must be applied in such a way as to ensure that unions and their members can exercise their right to freedom of association.

The CC quoted section 95(5)(b) of the LRA, which clearly defines inter alia the qualification for admission to membership. NUMSA submitted that the phrase “subject to its constitution” is an internal regulatory mechanism and can be ignored at will. The CC found it difficult to accept that NUMSA could simply choose to ignore the provision for the qualification and admission of membership found in its own self-imposed constitution.

The CC commented that according to international obligations, a principal source in relation to the right to freedom of association in the workplace is the Freedom of Association Convention. The approach and interpretation of the LAC and the wording of section 4(1)(b) of the LRA, mirrors that of the Freedom of Association Convention and is found to be in alignment with international practice. The CC held that section 4(1)(b) of the LRA complied with and is consistent with the limitation clause of section 36(1) of the Constitution.

NUMSA’s argument was severely impacted as it had voluntarily chosen to limit and define the scope of eligibility for membership in its association and was thus bound to the categories of the membership set out in its scope.

Victor AJ stated that freedom of association is a positive right as it enables individuals to highlight issues of concern and collectively contest the structure of social power within its midst. NUMSA failed to take into consideration both its existing members’ right to associate and dissociate as well as the possible vulnerability of the “capture” of its association as explained by Woolman et al (eds) “Freedom of Association” Constitutional Law of South Africa Service 6 (2014) at 44-2-3: “it is important for an association to have control over selective membership policies…associations admitting members who do not fall within its object and purpose may have the effect of altering the identity of the organisation. This in turn violates the association’s existing members’ right to disassociate”.

The freedom of association is not only a right conferred upon employees, but upon employers as well. The constitution of a union or employers’ organisation must determine several substantive matters as discussed inn Turner v Jockey Club of SA 1974 (3) SA 633 (A) at 644G – 645C, it was held that—

“The constitution not only determines the nature and scope of the association’s existence and activities but also prescribes and demarcates the powers of the association and its office-bearers.” 

The CC held that the LAC was correct in finding that the role of a union’s constitution gives effect to legitimate government policy of orderly collective bargaining at sectoral level. Therefore, a union’s constitution constitutes an agreement which binds its members.

The CC further held that although NUMSA’s scope was defined in its constitution, there was room for its amendment through provisions found in the LRA, however, NUMSA refused to amend its constitution to include the paper and packaging industry which is the industry Lufil operates within. Lufil’s core argument rested on the fact that NUMSA’s constitution did not extend to the paper and packaging industry and never attacked NUMSA’s suitability to represent its employees. 

According to the CC, the constitution of a union serves an important purpose for employers, as they are informed of the different industries within which unions operate. In allowing a union to operate outside of its scope and to act without regard to its constitution, would severely undermine the core constitutional values of the promotion of accountability, transparency and openness. The CC questioned why NUMSA did not amend its constitution in order to extend the eligibility requirement as defined in its scope to allow for the admission Lufil’s employees as members, as it could easily have done so, instead of electing to litigate this matter in court.

The CC concluded that it was not in the interests of justice to grant leave to appeal and dismissed the application.