SECTION 96 of the Labour Relations Act outlines the steps to be followed when a trade union or employer’s organisation wishes to register with the Department of Labour.

The process is relatively straightforward and includes the completion of a prescribed form, the submission of, for example, the trade union’s constitution and “any other information that may assist the registrar to determine whether the trade union or employer’s organisation meets the requirements for registration”.

Once registered, there are various ongoing requirements to remain registered, including the keeping of accounting records and conducting of annual audits. In addition, unions have a duty to keep certain records, including a list of all its members, the minutes of meetings, as well as ballot papers for a period of three years from the date of every ballot.

Provision is made in Section 101 of the Act for the changing of a trade union’s constitution or its name. This is a relatively simple process and may include circumstances in which the trade union wishes to change or replace its constitution. One of the key components of any trade union’s constitution is a description of its scope. A trade union’s scope describes, in simple terms, the industries in which the trade union seeks to operate.

This is typically listed in an annexure to a trade unions constitution. It follows that when a trade union drafts a constitution that specifies the industries and sectors in which its scope of operations is to operate, it is obliged to limit its activities to those specific sectors and industries, but not stray into other non-specified sectors. One would expect a trade union, and indeed an employer’s organisation for that matter, to stay in its lane in conducting its day-to-day activities in the industries and sectors that it identifies as its jurisdiction, in its constitution.

For example, a trade union registered to be active in the hairdressing industry should not seek to represent members in the mining industry. However, the fact of the matter is that quite frequently trade unions operate in industries and sectors outside the list of industries and sectors listed as their scope in their constitution.

This issue was addressed in a Labour Appeal Court judgment handed down in mid-2019 in the case of Lufil Packaging (Isithebe) v Commission for Conciliation, Mediation & Arbitration & 2 Others (Case number DA8/2018). In that case, it was held that: “A trade union cannot create a class of membership outside the provisions of its constitution, and if they purport to do so, they act in excess of their powers and the act has no validity.”

A purported decision by a union to admit a member who is not eligible under its constitution to become a member is not a mere internal decision that cannot be challenged by an affected employer. Such a decision is ultra vires (acting beyond one’s power) and invalid and as such, open to challenge by the employer from whom organisational rights, based on the membership concerned, is sought. So, what we saw in this case was the employer challenging the union’s scope in that it was successfully argued by them that the printing and packaging sector in which it operates does not form part of the union’s scope.

The National Union of Metalworkers of South Africa (Numsa) approached the employer “asking it to provide stop orders for the deduction of union fees for its alleged members who were employees” of the employer. The employer refused to recognise Numsa by virtue of the fact that Numsa had registered scope, namely “metal and related industries), specified in its constitution, which fell outside of the employer’s scope of business. More specifically, the employer operated in the printing and packaging sector, not in the metal and related industries.

The Lufil Labour Appeal Court judgment held that: “Trade unions at common law have only those powers and capacities that are conferred on them by their constitutions. The Labour Relations Act required unions to determine in their constitutions which employees are eligible to join them and by necessary implication precludes them from admitting as members employees who are not eligible to be admitted in terms of the trade union’s registered constitution. If it is shown that the persons concerned are precluded by the union’s constitution from becoming its members, any purported admission of such employees as members is ultra vires the union’s constitution and invalid.”

For that reason, it was held that: “The employees on which (Numsa) relied in alleging it was sufficiently representative could not be and thus were not in law members of Numsa as they did not fall within the scope of the union in terms of Numsa’s constitution.” Put differently, Lufil operated in the printing and packaging sector, not the metal and related industries sector.

Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 086 111 5375.

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