Under the stewardship of its Secretary General, Irvin Jim, the National Union of Metal
Workers South Africa (NUMSA) has long been on a concerted drive to recruit more
members, at times at the expense, and to the annoyance, of its then COSATU affiliate, the
National Union of Mineworkers (NUM). COSATU had a long-standing policy of one trade
union per sector and, according to NUMSA’s constitution, it was limited in its scope to the
metal industry. That notwithstanding, NUMSA began recruiting members in other sectors.
In the end, NUMSA left COSATU and was one of the founding unions of a new federation
being the South African Federation of Trade Unions (SAFTU). NUMSA continued to recruit in
other sectors despite being constitutionally limited in its scope to the metal industry.
In the course of its recruitment drive, NUMSA approached Lufil Packaging (an employer
who manufactures printed and plain paper bags and associated paper-derivative based
packaging) requesting Lufil Packaging to grant it organisational rights in the workplace. Lufil
Packaging refused to grant NUMSA organisational rights on the grounds that Lufil Packaging’s
employees fell outside the defined scope of NUMSA’s constitution. The Constitutional
Court was ultimately called upon to decide the question whether a trade union can admit
as members, and receive organisational rights for, employees who do not fall within the
scope of that trade union’s constitution. Lufil Packaging contended that NUMSA is bound
by its constitution and may not recruit and/or admit employees that fall outside the scope
of its constitution. On the other hand, NUMSA argued that the interpretation of the law as
proposed by Lufil Packaging would unjustifiably and unreasonably infringe on the workers’
constitutional rights to freedom of association and right to fair labour practices.
The Court noted that the right to associate is not a unilateral right and that NUMSA’s
decision to admit as members employees falling outside its scope, in violation of its
constitution, may violate existing members’ rights to associate and disassociate. It is
noteworthy that employers have the same right too.
In reaching its decision, the Court took into account inter alia the following factors:
The LRA makes it peremptory for unions, at their formation, to have a constitution to
qualify for registration;
The union’s constitution constitutes the agreement which is entered into by its
members and is legally binding on them; and
The qualification for, and admission to, membership is subject to the union’s
constitution as defined in section 95(5)(b) of the Labour Relations Act, 1996 (LRA).
In the final analysis, the Court found that NUMSA is bound by its own constitution and that
it has no powers beyond what its constitution provides. It therefore refused NUMSA’s claim
for organizational rights.
This judgment emphasises the binding nature of constitutions of trade unions. Trade unions
are bound by their own constitutions and may not act outside their provisions. Unions
recruiting and admitting employees as members in breach of its constitution cannot rely on
such members when establishing representativeness to demand organisational rights from
employers. It is important therefore that, before conceding to a claim for organizational
rights, employers should ensure that trade unions are permitted by their constitution to
recruit and admit members in their workplace.
Trade unions are also not without a remedy, should they wish to recruit and admit members
outside of their constitutionally defined scope. In terms of section 101(1) of the LRA, a union
may amend its constitution in order to widen its scope.
Prepared by Chantelle Ngwenya and supervised by Pumezo David