Post on 16-Jan-2022
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 172/19
Labour Appeal Court Case No: DA8/2018
Labour Court Case No: D 722/2015 and D459/2016
In the matter between:
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA (KZN) Applicant
and
LUFIL PACKAGNG (ISITHEBE) First Respondent
(A division of Bidvest Paperplus ([ty) Ltd)
COMMISSION FOR CONCILIATION, MEDIATION Second Respondent
AND ARBITRATION
LEON PILLAY N.O Third Respondent
WRITTEN SUBMISSIONS OF THE APPLICANT (NUMSA)
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TABLE OF CONTENTS
INTRODUCTION……………………............................................................ 3
LITIGATION HISTORY……………………………………………………....... 4
Case No. D722/2015 – Labour Court ……………………….. 7
Case No. D459/2016 – Labour Court ……………………….. 8
Case No. DA8/2018 – Labour Appeal Court ………………... 10
COMMON CAUSE FACTS ………………………………………………....... 13
CONSTITUTIONAL INTERPRETATION ………………………………….... 14
INTERNATIONAL LAW ……………………………………………………….. 21
INTERPRETATION OF THE PHRASE “SUBJECT TO ITS
CONSTITUTION” ………………………………………………………………
23
CONTRACTUAL INTERPRETATION ……………………………………….. 28
VAN WYK & TAYLOR v DANDO & VAN WYK PRINT (PTY) LTD ………. 34
THE COLLATERAL CHALLENGE ANALOGY ……………………………... 35
LEAVE TO APPEAL …………………………………………………………… 38
COSTS ………………………………………………………………………….. 39
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INTRODUCTION
1. This appeal addresses NUMSA’s concerns over the rights to fair labour
practises and to the freedom of association and how the Labour
Relations Act 66 of 1995 (the “LRA”) as the statute that advances these
rights in the workplace is to be applied.
2. The applicant contends that the restrictive interpretation of section 4(1)(b)
by the Labour Appeal Court (LAC) unnecessarily infringes the rights to
fair labour practises and the right to freedom of association. It is
submitted that this section can, and so must, be interpreted so as not to
infringe upon these rights and accordingly should be interpreted as
required by both the Constitution and the LRA.
3. In section 23, the Constitution recognises the importance of ensuring fair
labour relations. The entrenchment of the right of workers to form and
join trade unions, as well as the right of trade unions, employers and
employer organisations to engage in collective bargaining, illustrates that
our Constitution contemplates that collective bargaining between
employers and workers is key in a fair industrial relations environment.
Section 23(2)(a) places no obvious limitation on the right to join a trade
union.
4. Section 18 of the Constitution recognises the right to freedom of
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association. The LRA itself also recognises this right in section 4.
5. The interpretation adopted by the LAC restricts the ability of the union
and its members to claim organisational rights. It is submitted that this
restriction results in a limitation of the union’s and its members’
constitutional right to fair labour relations and unnecessarily curtails the
right to freedom of association. As such the interpretation is in obvious
conflict with the Constitution, the purpose of the LRA and international
law.
6. The result of the LAC application of section 4(1)(b) is to remove the
union’s right to claim organisational rights for Lufil’s employees. But it
also declares as ultra vires and so as unlawful the relationship that 70%
of Lufil’s employees1 claim to be in with the union of choice.
LITIGATION HISTORY
7. In January 2015, NUMSA approached Lufil requesting that Lufil deduct
union fees for members who are employed by Lufil.2 Lufil refused the
request on the basis that its operations did not fall within the scope of
NUMSA, alleging that the union was not entitled to organise members
1 Record: Vol 1: Page 112, lines 8 – 20 and page 127, lines 19 – 23. 2 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 6 at paragraph 11 read with Annexure “PB1” at page 10.
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within Lufil’s workplace.3 NUMSA referred a dispute to the CCMA under
case number KNDB14987-14.
8. Lufil filed an application in terms of rule 31 of the CCMA rules, raising
what it termed a jurisdictional point, alleging that NUMSA did not have
the requisite locus standi to bring the dispute before the CCMA.4 NUMSA
filed an answering affidavit5 and Lufil replied thereto.6 The application
was decided on the papers and the third respondent delivered his ruling
on 19 June 2015 in which he found that NUMSA was entitled to claim
organisational rights from Lufil.7 The CCMA set the remainder of the
dispute down for hearing in terms of section 21(7) of the LRA.
9. Lufil launched proceedings to review the third respondent’s ruling in the
Labour Court, Durban under case number D722/15 on 31 July 2015.8 It
also sought to have the arbitration proceedings in the CCMA adjourned
pending the finalisation of the review under case number D722/15. This
application for adjournment was refused and the arbitration proceeded
3 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 6 at paragraph 12 read with Annexure “PB2” at pages 11 - 12. 4 Record: Vol 1: Notice of application and founding affidavit – jurisdictional point in Case No. KNDB14987-14 pages 1 - 16. 5 Record: Vol 1: Answering affidavit – jurisdictional point in Case No. KNDB14987-14 pages 20 - 37. 6 Record: Vol 1: Replying affidavit – jurisdictional point in Case No. KNDB14987-14 pages 38 - 44. 7 Record: Vol 2: Third Respondent’s Ruling – jurisdictional point in Case No. KNDB14987-14 pages 49 - 56. 8 Record: Vol 3: Review application – Case No: D722/15 pages 254 – 267.
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on 1 March 2016.9
10. The third respondent awarded NUMSA certain organisational rights on
14 March 2016.10 Lufil filed an application to review this award on 6 May
2016 under case number D459/16.11 The grounds of review are all but a
‘cut and paste’ of the first review and did not otherwise address the award
of organisational rights. In other words, the grounds of review of the
second award are the same as those advanced in the review of the
jurisdiction/ locus point. No factual defence was raised to NUMSA’s
competence or otherwise to organise in the affected industry.
11. Affidavits in review applications serve two primary purposes i.e. to define
the issues between the parties and to place the essential averments and
evidence before the parties and the Court. As a general principle in
reviews the applicant must make its case out in its founding affidavit and
the role of the reviewing Court is limited to deciding issues that are raised
in the founding affidavit.12 Essentially, therefore where the case for
review is not foreshadowed in the founding affidavit the application for
9 Record: Vol 2: Third respondent’s ruling - postponement in Case No. KNDB14987-14 pages 121 - 123. 10 Record: Vol 3: Third respondent’s ruling – organisational rights in Case No. KNDB14987-14 pages 246 - 253. 11 Record: Vol 4: Review application – Case No. D459/16 pages 282 - 296. 12 Cusa v Tao Ying Metal Industries & Others [2009] 1 BLLR 1 (CC) paragraph 67.
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review must fail.13
12. The applications under case number D722/15 and D459/16 were
consolidated and argued on 23 November 2017. Judgment was delivered
on 20 April 2018.14 The Labour Court dismissed the review and upheld
the third respondent’s findings.
13. The first respondent then sought and was granted leave to appeal to the
LAC under case number DA8/2018. The appeal was heard on 15 May
2019 and judgment was delivered on 13 June 2019.15 The LAC upheld
the appeal and set aside the CCMA’s arbitration award under case
number KNDB14987-14.
Case No. D722/2015 – Labour Court
14. The challenge by Lufil in the CCMA was raised as a “jurisdictional
point”.16 It is evident however that it was in fact a challenge to NUMSA’s
locus to represent Lufil’s employees in an application for organisational
rights. 17 Lufil contended that because the printing and packaging
13 Rustenburg Platinum Mines Limited v CCMA & Others [2004] 1 BLLR 34 (LAC) paragraph 15. 14 Record: Vol 5: Judgment of the Labour Court, Gush, J pages 396 - 405. 15 Record: Vol 5: Judgment of the Labour Appeal Court pages 444 – 459. 16 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 8 paragraph 18. 17 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 5 paragraph 7.
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industry was not included in annexure B of NUMSA’s constitution as part
of its scope, its employees were not eligible to become members of
NUMSA.18
15. The third respondent determined that this was not a jurisdictional issue19
and that NUMSA had locus standi to seek organisational rights from Lufil
in accordance with the provisions of the LRA.20
16. Lufil sought to review the third respondent’s ruling essentially on the
basis that that the third respondent had made an error of law and had
made a ruling that no reasonable decision-maker in his position could
have made.21
Case No: D459/2016 – Labour Court
17. Lufil applied to review the third respondent’s award of 14 March 2016 on
the grounds of the review against the “jurisdictional” ruling.22 Lufil did not
attack the union’s suitability to represent its employees, save on the
limited argument that the union’s constitution did not extend to the paper
18 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 7 paragraph 14. 19 Record: Vol 1: Third respondent’s ruling – jurisdictional point in Case No. KNDB14987-14 page 52 paragraph 31. 20 Record: Vol 1: Third respondent’s ruling – jurisdictional point in Case No. KNDB14987-14 page 56 paragraph 51. 21 Record: Vol 3: Founding affidavit in the review application under case no. D722/2015 page 264 -265 paragraph 23. 22 Record: Vol 4: Founding affidavit in the review application under case no. D459/2016 page 293 -295 paragraphs 28 - 31.
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and plastics industry. So other than to look to the scope in annexure B
Lufil did not attack the arbitration award on any other basis. At odds with
what was argued before the LAC, Lufil made common cause that its
employees were members of NUMSA – it did not attack that association.
18. At the review both parties identified the crisp issue to be determined as
“whether the LRA entitled the Third Respondent [NUMSA] to represent
its members in an application for organisational rights and whether it was
entitled to those rights”.23
19. The court held that the third respondent’s ruling in case number D772/15
was not reviewable and that being so the review of the award in D459/18
also failed.24
20. The rational for such finding was summarised in paragraphs 28 to 30 of
the judgement which reads as follows:
‘[28] As far as locus standi is concerned, the conditions precedent to a
union wishing to exercise organisational rights, in accordance with
the LRA, need only satisfy two conditions:
a. Firstly, the union must be registered (see section 11, 14, 16
18 and 21). It is common cause that the third respondent is
a registered union;
23 Record: Vol 5: Judgment of the Court a quo page 373 paragraph 6. 24 Record: Vol 5: Judgment of the Court a quo page 379 paragraph 31.
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b. Secondly, that the union must be sufficiently representative
(sections 11, 12, 13, 15, 16, 18 and 21. It appears from the
papers that the third respondent is sufficiently representative
of the applicant’s employees. (70% of the applicant’s
employees are members of the third respondent.)
[29] Had the legislature intended the scope of registration or the union’s
constitution to be determinative of the right to organisational rights,
it would have said so. The essence of the organisational rights
contained in part A of Chapter 3 are rights enjoyed essentially at the
instance of the employees as members of the union.
[30] In so far as this matter is an application to review and set aside the
ruling, the parties were ad idem that the outcome of that application
depends solely on whether the LRA precluded the third respondent
from representing its members in applying for organisational rights.
I am not persuaded that the provisions of the LRA do that. The LRA
sets out specifically what is required for a union to seek
organisational rights and it is beyond any doubt that the third
respondent has satisfied those requirements.’25
Case No. DA8/2018 – Labour Appeal Court
21. Lufil then noted an appeal against the whole of the judgment of the court
a quo.26
22. In its leave to appeal, Lufil stated the grounds upon which it intended to
25 Record: Vol 5: Judgment of the Court a quo page 379 paragraphs 28 - 30. 26 Record: Vol 5: Notice of appeal page 387 - 389.
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rely as follows:
‘1. That another court might reasonably reach a conclusion other than –
1.1 that the ruling of the Second Respondents in respect of which the
matter under CCMA case number D722/15 was brought was a
decision to which a reasonable decision-maker would have come
in the circumstances, and that the ruling of the Second
Respondent in respect of which the matter under case number
D459/16 was brought was a decision to which a reasonable
decision-maker could have come in the circumstances; and
1.2 more particularly, and without derogating from the generality of
the aforegoing, that another court might reasonably reach a
conclusion other than –
1.2.1 that the prevailing case law on the issue in question
supported the findings of the Second Respondent;
1.2.2 that third parties, such as the Applicant in this case, are
not able to challenge the locus standi of unions, such as
the Third Respondent in this case, to refer disputes on
behalf of individuals who are not entitled to be members
of that union, in terms of the union’s own Constitution;
1.2.3 that the First Respondent had jurisdiction to consider
the dispute referred by the Third Respondent; and
1.2.4 that there are only two conditions precedent to a union
in the position of the Third Respondent bringing such a
dispute (registration and sufficient representativity).’
23. In the Labour Appeal Court, Lufil challenged NUMSA’s entitlement to
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claim its employees as members. 27 It now sought to declare the
association of union and member ultra vires or unlawful.
24. The Labour Appeal Court held that:
‘The correct legal position, therefore, is that NUMSA had to show that it was
sufficiently representative. The employees on which it 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. As such, NUMSA was not sufficiently
representative of the employees at the workplace and therefore was not
entitled to any organisational rights. The commissioner erred in not coming
to that conclusion and committed a material error of law, which resulted in an
unreasonable decision. The Labour Court erred equally in not setting aside
the award on that basis.’28
25. It is against this decision that the Applicant seeks leave to appeal and
seeks an order upholding this appeal with costs.
26. In summary the Applicant’s grounds for leave to appeal are:
26.1. the LAC erred in interpreting section 4(1)(b) of the LRA in
isolation and without proper regard to the substantive rights
afforded through sections 18 and 23 of the Constitution;
27 Record: Vol 5: Judgment of the Labour Appeal Court page 448 - 449 paragraph 13. 28 Record: Vol 5: Judgment of the Labour Appeal Court page 457 paragraph 37.
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26.2. the LAC erred in holding that trade unions are precluded from
admitting as members, employees who are not employed in a
particular sector;
26.3. the LAC erred in relying on Van Wyk and Taylor v Dando and
Van Wyk Print (Pty) Ltd [1997] 7 BLLR 906 (LC);
26.4. the LAC erred in its analogous reasoning regarding collateral
challenges.29
COMMON CAUSE FACTS
27. The following facts are common cause, on the pleadings before the
Labour Court.
27.1. Chapter 2(2) of NUMSA’s constitution provides:
‘All workers who are or were working in the metal and related industries are
eligible for membership of the Union subject to the discretion of the relevant
Shop Stewards Council …’
27.2. Annexure B of NUMSA’s constitution deals with “the scope of the
Union” and provides that “the Union shall be open to all workers
29 Record: Vol 6: Founding affidavit in Application for Leave to Appeal to the Constitutional Court page 469 – 470 paragraph 15.
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employed in any of the following industries”. The annexure lists
21 different industries but does not include the packaging
industry.
27.3. NUMSA is a registered trade union.
27.4. NUMSA has as members a majority of Lufil’s employees.30
28. It is against that factual background that the interpretation of section
4(1)(b) becomes important.
CONSTITUTIONAL INTERPRETATION
29. Section 39(1) of the Constitution provides that:
'When interpreting the Bill of Rights, a court, tribunal or forum -
(a) must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
30 The first respondent denies that this is common cause in its answering affidavit to the applicant’s application for leave to appeal to this Court. See Record: Vol 6: answering affidavit to the application for leave to appeal to the Constitutional Court page 512 paragraph 39. It avers that it has ‘purported members’. In its review applications under case numbers D722/15 and D459/16 it avers that ‘A number of Lufil’s employees are members of NUMSA’. See Record: Vol 3: Founding affidavit in application for review under case number D722/15 page 262 paragraph 12 and Record: Vol 4: Founding affidavit in application for review under case number D459/16 page 288 paragraph 13. See Also Vol 2: Page 127, Lines 19-24.
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(b) must consider international law; and
(c) may consider foreign law.'
30. Section 3 of the LRA declares that its provisions must be construed
purposively and in compliance with the Constitution and the public
international law obligations of the Republic. It reads:
‘Any person applying this Act must interpret its provisions —
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the
Republic.'
31. The primary objects of the LRA are listed in section 1 thereof. In part A
section 1 reads:
‘The purpose of this Act is to advance economic development, social justice,
labour peace and the democratisation of the workplace by fulfilling the
primary objects of this Act, which are —
(a) to give effect to and regulate the fundamental rights conferred by
section 23 of the Constitution of the Republic of South Africa, 1996;
(b) to give effect to obligations incurred by the Republic as a member state
of the International Labour Organisation;
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(c) to provide a framework within which employees and their trade unions,
employers and employers' organisations can —
(i) collectively bargain to determine wages, terms and conditions of
employment and other matters of mutual interest; and
(ii) formulate industrial policy; and
(d) to promote —
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision-making in the workplace; and
(iv) the effective resolution of labour disputes.'
32. The LRA accordingly recognises the importance of fair labour practises
and the role that collective bargaining plays in achieving this
constitutional objective.
33. Section 4 is headed ‘Employees' right to freedom of association’ and
section(1)(b) reads:
‘Every employee has the right to join a trade union, subject to its constitution.’
34. Compliance with the Constitution includes the discharge of the obligation
imposed by s 39(2) which obliges, in mandatory terms, every court to
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promote the objects of the Bill of Rights when interpreting legislation.31
35. In Makate this Court stated the following in regard to section 39(2):
‘The objects of the Bill of Rights are promoted by, where the provision is
capable of more than one meaning, adopting a meaning that does not limit a
right in the Bill of Rights. If the provision is not only capable of a construction
that avoids limiting rights in the Bill of Rights but also bears a meaning that
promotes those rights, the court is obliged to prefer the latter meaning.' 32
36. The first step is to determine whether the legislative provision implicates
rights in the Bill of Rights. If it does, then the approach stipulated in
section 39(2) must be followed.
37. The hierarchy of the Constitution, as the supreme law, dictates that when
there are two conflicting but reasonable interpretations of a particular
provision in a statute then the Court should give effect to the
interpretation which best protects the values underlying the Constitution.
The court therefore must read the legislation in a way which gives effect
to the fundamental values of the Constitution.33
31 POPCRU v SACOSWU and Others 2019 (1) SA 73 (CC) paragraph 84. 32 Makate v Vodacom Ltd 2016 (4) SA 121 (CC) paragraph 89. 33 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC) paragraph 91. Investigating Directorate – Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd & Others 2001 (1) SA 545 (CC) paragraph 22.
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38. This court has stressed that any legislation must be viewed through the
prism of the Constitution. For it is the Constitution and not the legislation
that provides the principles and values and sets the standards to be
applied.34
39. Section 18 of the Constitution states:
‘Everyone has the right to freedom of association.’
40. Section 23 of the Constitution provides:
‘(1) Everyone has the right to fair labour practices.
(2) Every worker has the right –
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union;
and
(c) to strike.
(3) Every employer has the right –
(a) to form and join an employers' organisation; and
(b) to participate in the activities and programmes of an employers'
organisation.
34 Du Toit v Minister of Transport 2006 (1) SA 297 (CC) [26]
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(4) Every trade union and every employers' organisation has the right –
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers' organisation and employer has the right
to engage in collective bargaining. National legislation may be enacted
to regulate collective bargaining. To the extent that the legislation may
limit a right in this chapter, the limitation must comply with s 36(1).
(6) National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the legislation
may limit a right in this chapter, the limitation must comply with s 36(1).'
41. Section 4(1)(b) of the LRA is designed to give effect to sections 18 and
23 of the Bill of Rights.
42. As stated by this Court in POPCRU:
‘[87] The right to engage in collective bargaining lies at the heart of industrial
relations. This right is conferred on trade unions and employers. This is the
only right which may be exercised simultaneously by protagonists in a labour
dispute. This is so because the bargaining takes place between the trade
union and the employer. Participation of each side in the collective
bargaining constitutes the exercise of the right. Absent the right, the objects
of the LRA such as labour peace, social justice and the advancement of
economic development may not be achieved.
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[88] Notably, on the workers' side, the right is conferred on a trade union.
This makes membership of a trade union the gateway to collective
bargaining for workers. Therefore, the right of every worker to form and join
a trade union is critically linked to the right to engage in collective bargaining.
[89] The right to form and join a trade union guarantees freedom of
association for workers. Its importance is acknowledged not only in the
Constitution but also in international law….”35
43. In construing section 4(1)b) of the LRA a meaning that limits the rights
encapsulated in sections 18 and 23 of the Constitution must be
eschewed. If the section is reasonably capable of a meaning that
promotes the rights concerned, it must be preferred above other
meanings. Section 23 of the Constitution informs section 4(1)(b) of the
LRA, not the other way.
44. This Court has stated the following in SATAWU:
‘(C)onstitutional rights conferred without express limitation should not be cut
down by reading implicit limitations into them, and when legislative provisions
limit or intrude upon those rights they should be interpreted in a manner least
restrictive of the right, if the text is reasonably capable of bearing that
meaning.’36
45. Sections 18 and 23 of the Constitution are rights stated without express
35 POPCRU note 31 above paragraphs 84 to 89. 36 SATAWU and Others v Moloto and Another NNO 2012 (6) SA 249 (CC) paragraph 44.
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limitation. Accordingly, section 4(1)(b) of the LRA requires an
interpretation that is least restrictive of those rights if the text is
reasonably capable of bearing that meaning.
INTERNATIONAL LAW
46. This Court has already recognised that in interpreting section 23 of the
Constitution an important source of international law will be the
conventions and recommendations of the ILO.37
47. The Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No 87) and the Right to Organise and Collective
Bargaining Convention, 1949 (No 98) are relevant. South Africa is a
member of the ILO and has ratified both these conventions.
48. With regard to international law on freedom of association at the
workplace, this court observed in Bader Bop:
‘An important principle of freedom of association is enshrined in art 2 of the
Convention on Freedom of Association and Protection of the Right to
Organise which states:
"Workers and employers, without distinction whatsoever, shall have
the right to establish and, subject only to the rules of the organisation
37 South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) at paragraph 25.
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concerned, to join organisations of their own choosing without previous
authorisation.
Both committees have considered this provision to capture an important
aspect of freedom of association in that it affords workers and employers an
option to choose the particular organisation they wish to join. Although both
committees have accepted that this does not mean that trade union pluralism
is mandatory, they have held that a majoritarian system will not be
incompatible with freedom of association, as long as minority unions are
allowed to exist, to organise members, to represent members in relation to
individual grievances and to seek to challenge majority unions from time to
time.’38
49. This Court in Bader Bop stated further:
‘Of importance to this case in the ILO jurisprudence described is firstly the
principle that freedom of association is ordinarily interpreted to afford unions
the right to recruit members and to represent those members at least in
individual workplace grievances; and, secondly, the principle that unions
should have the right to strike to enforce collective bargaining demands. The
first principle is closely related to the principle of freedom of association
entrenched in s 18 of our Constitution, which is given specific content in the
right to form and join a trade union entrenched in s 23(2)(a), and the right of
trade unions to organise in s 23(4)(b). These rights will be impaired where
workers are not permitted to have their union represent them in workplace
disciplinary and grievance matters, but are required to be represented by a
rival union that they have chosen not to join.’39
38 National Union of Metal Workers of South Africa and Others v Bader Bop (Pty) Ltd and another 2003 (3) SA 513 (CC) at paragraph 31. 39 Bader Bop note 38 above at paragraph 34.
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INTERPRETATION OF THE PHRASE “SUBJECT TO ITS CONSTITUTION”
50. What then is the meaning to be given to the phrase “subject to its
constitution” in section 4(1)(b).
51. Lufil contends that the proviso in Section 4 limits the unions to which an
employee may apply.40 Accordingly, it argues that it is open to the
employer to object to membership of a particular union where the union’s
scope does not cover that particular area of employment.41
52. Such an interpretation limits the right to freedom of association and the
right of every worker to form and join a trade union, both of which are
unrestricted rights.
53. It is further submitted that the argument is at odds with a rational
common-sense interpretation of section 4 which would give effect to the
rights enshrined in sections 18 and 23 of the Constitution.
54. It is submitted that the correct interpretation of section 4(1) (b) is that it
regulates the relationship between the union and its member. In that
context then the member may join if he/she satisfies the applicable rules
40 Record: Vol 5: Judgment of the Labour Appeal Court page 448 - 449 paragraphs 13 – 15. 41 Record: Vol 5: Judgment of the Labour Appeal Court page 449 - 450 paragraph 16.
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of the union. This is the common-sense meaning of the affected proviso
to the LRA, “subject to its constitution”.
55. The proviso to the LRA section 4(1)(b) simply confirms that the freedom
of association includes the right to exclude those who are not prepared
to conform to the group’s requirements. It includes the right to require
those who join an association to conform to its principles and its rules.42
56. This allows the union (not the employer) to restrict members at its behest
or for that matter to exclude a particular member if the member does not
observe the rules of the union. It does not lie for the employer to raise
an objection. The relationship is between union and member and it is a
contractual relationship. As such the parties to the contract may choose
to ignore a provision or may treat a so-called rule as prescriptive not
proscribed.43
57. In the National Industrial Court of Nigeria in the matter of Nesoil Plc v
National Union of Petroleum and Natural Gas Workers44 the Court states
[with reference to the ILO]:
‘From these statements of principles, we hold that the claimant has no locus
42 Wittmann v Deutscher Schulverein Pretoria & Others 1999 (1) BCLR 92 (T) paragraph 117. 43 Aussenkehr Farms (Pty) Ltd v Trio Transport CC 2002 (4) SA 483 (SCA) paragraph 25. 44 Suit No: NIC/LA/08/2010.
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standi, and so is a busy body, regarding the question whether the defendant
is the appropriate union to unionize its staff. The locus is with either the staff
themselves or some other rival union that lays claim to jurisdictional
mandate. The interest of the claimant regarding this question is passive and
does not entitle it to come to court. Only two categories of persons have the
locus to challenge the defendant in this regard. They are: a rival union
challenging the jurisdictional mandate of the defendant over the staff of the
claimant or the staff of the claimant indicating individually and in writing that
they are opting out and so check-off dues should no longer be deducted.’
58. Our courts have also considered the question of whether an employer
has a right to interfere with the relationship between the trade union and
its members.
59. In City of Johannesburg v SA Municipal Workers Union & Others45 the
Court found that an employer even with the best of intentions could not
gain locus standi to interfere in the internal workings of a trade union.
The Court held that an employer is not a party to the trade union
constitution that only regulates the relationship between the union, its
members, and officials.
60. It has likewise been held that the rights enshrined by the LRA and by the
Constitution should not be limited by reading in a provision that workers
may not strike in demand of organisational rights for a union that is
45 (2017) 38 ILJ 1342 (LC) paragraph 19.
- Page 26 of 41
restricted in its scope by its own Constitution.46
61. Dealing specifically with the restriction in section 4(1)(b), Steenkamp J in
the Mabote47 decision stated the following:
‘[26] What, then, to make of the restriction in s 4(1)(b) of the LRA that an
employee may join a trade union 'subject to its constitution'?
[27] That restriction appears to me to regulate the relationship between the
trade union and its members inter se. It is for the trade union to decide
whether or not to accept an application for membership and whether or not
that member is covered by its constitution. It could not have been the
intention of the legislature unduly to restrict the right to representation by a
trade union to the extent that it is up to a third party — such as an employers'
organization — to deny a worker that right, based on the trade union's
constitution.’
62. That view was endorsed by the LAC in MacDonald’s Transport Upington
(Pty) Ltd v Association of Mineworkers & Construction Union & others48.
The Court held that a union constitution is no more than a contract
between an institution and its members. Its terms and compliance with
its terms, as in all contractual relationships, involves only the parties to
the union constitution. If the union and its members are satisfied it is not
open to the employer to challenge membership. In relation to the dictum
46 Bidvest Food Services (Pty) Ltd v National Union of Metalworkers of SA & Others (2015) 36 ILJ 1292 (LC) paragraph 23. 47 National Union of Metalworkers obo Mabote v CCMA & Others (2013) 34 ILJ 3296 (LC). This decision was confirmed on appeal in Kalahari Country Club v National Union of Mineworkers & another (2015) 36 ILJ 1210 (LAC) albeit on factual grounds and not on the grounds referred to herein. 48 (2016) 37 ILJ 2593 (LAC) paragraphs 41 - 44.
- Page 27 of 41
in Mabote quoted above, Sutherland JA stated:
‘I concur wholly with the view that ‘it is not for an employer to interfere with
the internal decisions of a trade union as to whom to allow to become a
member’ and such dictum is equally applicable to the circumstances of this
case.’49
63. It seems clear that any sufficiently representative trade union and even
those that merely claim to be sufficiently representative may seek to
enforce the organisational rights they claim the LRA confers upon them
through an adjudication process (through mediation or arbitration).50
64. In the Bader Bop matter Ngcobo JA, agreeing with the majority was
moved to add:
‘[62] In my view, part A does not preclude an unrepresentative union from
obtaining organisational rights if this part is properly construed in light of
Section 23 of the Constitution, Section 4 of the LRA and the ILO conventions.
Neither does the LRA. On the contrary, part A and in particular Section 20
supports the conclusion that the intention of part A is not to deny
organisational rights to unrepresentative unions by expressly conferring such
rights on representative unions.’
65. In this case both the employees and the union accept their relationship
and they seek to bargain collectively with the employer. The employer
49 MacDonald Transport note 48 above paragraph 45. 50 Bader Bop note 38 above at paragraph 25. See also POPCRU note 31 above where this Court held that minority unions are entitled to engage in collective bargaining.
- Page 28 of 41
cannot invoke their contract to avoid its obligations under the LRA.
66. The words “subject to its constitution” must be read to mean that the
union and its members are entitled to regulate their relationship. Thus, if
a union’s constitution disqualifies membership of certain employees, it is
entitled to deny such membership. It is not however bound to deny such
membership.
67. Lufil’s interpretation is at variance with the constitutional canon of
construction. It is also dissonant with international law and in conflict with
section 3 of the LRA which expressly demands that the provisions of the
Act be construed in compliance with the Constitution and public
international law. It is accordingly submitted that Lufil’s interpretation
must be rejected.
68. It bears mention that the effect of the LAC judgement is to end the Lufil
employees’ membership of the union. That ensues even though the
individual employees, whose particular human rights are directly
impinged, were not in person party to the proceedings.
CONTRACTUAL INTERPRETATION
69. Lufil submits that because the LRA leaves it to the trade union
themselves to prescribe qualifications for admission to membership in
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their constitutions, and because NUMSA’s constitution does not refer to
the paper and packaging industry, Lufil’s employees are not eligible for
membership of NUMSA.51
70. Chapter VI, Part A deals inter alia with the registration and regulation of
trade unions. The sections relevant to this application are sections 95(1)
and 95(5)(b) and (c). Section 95(1) provides:
‘Any trade union may apply to the registrar for registration if-
(a) it has adopted a name that meets the requirements of subsection (4);
(b) it has adopted a constitution that meets the requirements of
subsections (5) and (6);
(c) it has an address in the Republic; and
(d) it is independent.’
71. Sections 95(5)(b) and (c) provide that the constitution of any trade union
(or employer’s organisation) that intends to register as a trade union must
prescribe qualifications for, and admission to, membership and establish
the circumstances in which a member will no longer be entitled to the
benefits of membership.
51 Record: Vol 5: Judgment of the Labour Appeal Court page 450 paragraph 17. Record: Vol 6: Answering affidavit in Application for leave to appeal to the Constitutional Court pages 502 – 503 paragraphs 20 - 23.
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72. Chapter 2(2) of NUMSA’s constitution provides:
‘All workers who are or were working in the metal and related industries are
eligible for membership of the Union subject to the discretion of the relevant
Shop Stewards Council …’ 52
73. Annexure B of NUMSA’s constitution deals with “the scope of the Union”
and provides that “the Union shall be open to all workers employed in any
of the following industries”. The annexure lists 21 different industries but
does not include the packaging industry.53
74. The purpose of a trade union’s constitution is to regularise the
relationship between the union and its members. It is submitted that just
as the provisions of the LRA are to be interpreted so as to give effect to
the rights enshrined in the Bill of Rights, so too must a union’s
constitution. This is part of the unitary exercise of interpretation.
75. In Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport
(Edms) Bpk the Court stated the following in regard to the interpretation
of contracts:54
‘…Whilst the starting point remains the words of the document, which are the
only relevant medium through which the parties have expressed their
52 Record: Vol 5: NUMSA’s Constitution page 403. 53 Record: Vol 5: NUMSA’s Constitution pages 438 – 442. 54 2014 (2) SA 494 (SCA) paragraph 12.
- Page 31 of 41
contractual intentions, the process of interpretation does not stop at a
perceived literal meaning of those words, but considers them in the light of
all relevant and admissible context, including the circumstances in which the
document came into being. The former distinction between permissible
background and surrounding circumstances, never very clear, has fallen
away. Interpretation is no longer a process that occurs in stages but is
'essentially one unitary exercise'. Accordingly it is no longer helpful to refer
to the earlier approach.’
76. There is nothing in the wording of NUMSA’s constitution to suggest that
only workers in the metal and related industries are eligible for
membership. The scope as set out in annexure B is likewise not
restrictive.
77. Chapter 2.2 would read “Only workers who are or were working in the
metal and related industries are eligible for membership of the Union
subject to the discretion of the relevant Shop Stewards Council…” if it
were to be given the restrictive interpretation contended for by Lufil.
Annexure B to NUMSA’s constitution would likewise have to read “the
Union shall be open only to all workers employed in any of the following
industries”.
78. There is accordingly nothing in the wording which limits members to the
industries referred to.
79. Moreover, the scope appears as an annexure to the Constitution. The
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scope may be amended by the central committee from time to time.55
There are no formal requirements for an amendment of the scope and
that in itself shows that the scope is far from immutable.
80. The Minister of Labour has issued guidelines in terms of section 95(8) of
the LRA that are to be applied by the Registrar of Labour Relations in
determining whether an applicant for registration is a genuine trade union
(or a genuine employer’s organisation).56 Paragraph 8 of the guidelines
under the heading ‘Qualification for membership of a trade union’ reads:
‘In terms of section 95(5)(b) of the LRA, the constitution of a trade union must
prescribe the qualifications for membership. There is no requirement in the
LRA that a trade union confine its membership to employees in a particular
sector or sectors of the economy or a particular geographical region.
However, the failure to place appropriate qualifications on membership may
indicate, together with other factors, that the trade union is not a genuine
trade union.’
81. It cannot be suggested that NUMSA is not a genuine trade union, but
what is informative is the acknowledgement that the LRA does not
require that a trade union confine its membership to employees in a
particular sector or sectors. This is not a requirement for the registration
of a trade union.
55 Record: Vol 5, page 416, paragraph 2(d)(xiv). 56 Government Gazette No. 42121, 19 December 2018.
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82. The International Labour Office has published a compilation of decisions
of the Committee on Freedom of Association.57 Chapter 6 deals with the
rights of organizations to draw up their constitutions and rules. Item 564
reads:
‘In the Committee’s opinion, the mere existence of legislation concerning
trade unions in itself does not constitute a violation of trade union rights, since
the State may legitimately take measures to ensure that the constitutions and
rules of trade unions are drawn up in accordance with the law. On the other
hand, any legislation adopted in this area should not undermine the rights of
workers as defined by the principles of freedom of association. Overly
detailed or restrictive legal provisions in this area may in practice hinder the
creation and development of trade union organizations.’58
83. In not requiring a closed list of the sectors which the union represents,
the legislation in regard to the registration of trade unions is in keeping
with what is stated above. NUMSA’s constitution itself must also be read
so as to uphold the principles of freedom of association and the right to
fair labour practices.
84. In the exercise of a unitary interpretation of NUMSA’s constitution it is
submitted that the right to freedom of association and fair labour
practices, is the most important informative tool as to the ambit of such
constitution. It is accordingly submitted that NUMSA’s constitution does
57 Freedom of Association: Compilation of decisions of the Committee on Freedom of Association; sixth edition, 2018. 58 The 2006 Digest, para 370 is referenced.
- Page 34 of 41
not prohibit membership of workers not explicitly stated in the
constitution.
VAN WYK AND TAYLOR V DANDO AND VAN WYK PRINT (PTY) LTD
85. The LAC relied on Van Wyk and Taylor v Dando and Van Wyk Print (Pty)
Ltd59 as authority for the proposition that a union acts ultra vires its own
constitution when it allows membership of individuals who are not
permitted to be members of that union in terms of the union’s own
constitution and that when a union does so it is not immune to attack from
third parties.
86. The doctrine of stare decisis obliges the LAC in this matter to follow the
approach in MacDonald’s Transport60 and not that in Van Wyk.
87. Lufil avers that MacDonald’s Transport supports Lufil’s case. It relies on
paragraphs 35 and 42 of that judgment in support of this submission and
concludes:
‘The Court’s endorsement of the view that “it is not for the employer to
interfere with the internal decisions of a trade union as to whom to allow to
become a member” therefore has no application in the present type of case.
59 [1997] 7 BLLR 906 (LC). 60 MacDonald’s Transport note 48 above.
- Page 35 of 41
The Court was not concerned with an ultra vires argument, as in the present
case.’61
88. This submission is simply incorrect. The court in MacDonald’s Transport
endorsed the view stated above in relation to Mabote’s case which dealt
specifically with the restriction in section 4(1)(b).62
89. In any event the Labour Courts have consistently held that it is not for an
employer to interfere with the relationship between a trade union and its
members.63
90. The facts in Van Wyk are entirely distinguishable as the members
concerned were accepted as members for an ulterior purpose - a
purpose contrary to section 3 of the LRA.
THE COLLATERAL CHALLENGE ANALOGY
91. The LAC held the following in regard to the collateral challenge analogy:
‘In applying to the CCMA to be granted organisational rights NUMSA sought
to invoke the coercive power of the State. The CCMA cannot impose upon
Lufil its coercive power, in granting NUMSA the organisational rights it seeks
61 Record: Volume 6: Answering affidavit in application for leave to appeal to the Constitutional Court pages 503. – 505 paragraphs 25 – 29. 62 MacDonald’s Transport note 48 above at paragraph 45. Mabote at note 47 above. 63 See City of Johannesburg note 45 above and Bidvest Food Services note 46 above.
- Page 36 of 41
if the basis for seeking this rights (the employees’ purported membership) is
not legally valid (because the union acts ultra vires its own constitution in
allowing these employees to be its members.)64
92. It is accepted that a CCMA award is administrative action.65
93. The Court in Oudekraal66 stated the following:
‘[26] For those reasons it is clear, in our view, that the Administrator's
permission was unlawful and invalid at the outset. Whether he thereafter also
exceeded his powers in granting extensions for the lodgement of the general
plan thus takes the matter no further. But the question that arises is what
consequences follow from the conclusion that the Administrator acted
unlawfully. Is the permission that was granted by the Administrator simply to
be disregarded as if it had never existed? In other words, was the Cape
Metropolitan Council entitled to disregard the Administrator's approval and
all its consequences merely because it believed that they were invalid
provided that its belief was correct? In our view, it was not. Until the
Administrator's approval (and thus also the consequences of the approval)
is set aside by a court in proceedings for judicial review it exists in fact and it
has legal consequences that cannot simply be overlooked. The proper
functioning of a modern State would be considerably compromised if all
administrative acts could be given effect to or ignored depending upon the
view the subject takes of the validity of the act in question. No doubt it is for
this reason that our law has always recognised that even an unlawful
administrative act is capable of producing legally valid consequences for so
long as the unlawful act is not set aside.
…
[31] Thus the proper enquiry in each case - at least at first - is not whether
64 Record: Volume 5: Judgement of the Labour Appeal Court page 457 paragraph 36. 65 Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC) paragraph 110. 66 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA).
- Page 37 of 41
the initial act was valid but rather whether its substantive validity was a
necessary precondition for the validity of consequent acts. If the validity of
consequent acts is dependent on no more than the factual existence of the
initial act then the consequent act will have legal effect for so long as the
initial act is not set aside by a competent court.
[32] But just as some consequences might be dependent for validity upon
the mere factual existence of the contested administrative act so there might
be consequences that will depend for their legal force upon the substantive
validity of the act in question. When construed against the background of
principles underlying the rule of law a statute will generally not be interpreted
to mean that a subject is compelled to perform or refrain from performing an
act in the absence of a lawful basis for that compulsion. It is in those cases -
where the subject is sought to be coerced by a public authority into
compliance with an unlawful administrative act - that the subject may be
entitled to ignore the unlawful act with impunity and justify his conduct by
raising what has come to be known as a 'defensive' or a 'collateral' challenge
to the validity of the administrative act. Such a challenge was allowed, for
example, in Boddington v British Transport Police, in which the defendant
was charged with smoking a cigarette in a railway carriage in contravention
of a prohibitory notice posted in the carriage pursuant to a byelaw. The
House of Lords held that the defendant was entitled to seek to raise the
defence that the decision to post the notice (which activated the prohibition
in the byelaw) was invalid because the validity of the decision was essential
to the existence of the offence….’
94. In an attempt at analogous reasoning it is submitted that the following is
the correct approach.
94.1. The third respondent’s ruling and award stand until they are set
aside on review which is precisely what Lufil had done.
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94.2. It is not open to Lufil to simply ignore the ruling and award but in
the event that it were to do so and it did not comply with the award
and NUMSA then decided to compel it to comply with the award,
then Lufil could raise a ‘collateral challenge’ stating that the
award given was unlawful.
95. In any event it is difficult to fathom why the acceptance by NUMSA of the
Lufil employees as members would constitute an administrative act. That
is precisely what Lufil regards as unlawful.
96. In the context of CCMA hearings and the binding effect of a
Commissioner’s award the Lufil analogy is untenable.
LEAVE TO APPEAL
97. In terms of section 167(3)(b) of the Constitution, this Court has jurisdiction
to decide constitutional matters and issues connected with constitutional
matters.
98. This application concerns the interpretation of provisions of the LRA. The
applicant submits that the interpretation adopted by the LAC constitutes
an infringement of its right to fair labour relations and its right to freedom
of association and also infringes its members’ rights to fair labour
- Page 39 of 41
relations and freedom of association as fully canvassed above. This
court’s jurisdiction is thus engaged.
99. The interpretation adopted by the LAC restricts the ability of the union
and its members to claim organisational rights. It is submitted that this
restriction results in a limitation of the union’s and its members’
constitutional right to fair labour relations and unnecessarily curtails the
right to freedom of association. The LAC interpretation, if it stands, will
affect all trade unions and their members who are similarly situated.
Several cases are pending before the Labour Court dealing with the
same or similar issues. The importance of the issue thus extends beyond
the interests of those directly involved in it.
100. It is accordingly submitted that in light of the constitutional issues at stake
and its importance in the greater scheme of things, it is in the interests of
justice that leave to appeal be granted.67
COSTS
101. The general rule for an award of costs in constitutional litigation between
a private party and the State is that if the private party is successful, it
67 Myathaza v Johannesburg Metro Bus Services (SOC) Ltd and others 2018 (1) SA 38 (CC) paragraph 17. SACCAWU & Others v Woolworths (Pty) Ltd 2019 (3) SA 362 (CC) paragraph 20.
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should have its costs paid by the State, and if unsuccessful, each party
should pay its own costs68 is not applicable in this case.
102. It is submitted that Lufil’s stance in this ligation indicates a desire to avoid
the collective bargaining provisions of the LRA. This it is not entitled to
do.
103. Whilst the parties had initially adopted the principles of Zungu69 in the
Labour Court NUMSA was entitled to claim the costs of opposing the LAC
appeal. Having failed in the Labour Court it is uncertain why Lufil claimed
the costs of the appeal or why the LAC deviated from Zungu.
104. It is accordingly submitted that the Applicant is entitled to costs in this
appeal including the costs of the application for leave to appeal both
including that of two Counsel.
105. The order in the LAC should be set aside. The appeal therein ought to
have been dismissed with Lufil to pay the applicant’s costs.
68 Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) paragraph 43. 69 Zungu v Premier of the Provinces of KwaZulu-Natal & Others (2018) 39 ILJ 523 (CC). 69 Zungu v Premier of the Provinces of KwaZulu-Natal & Others (2018) 39 ILJ 523 (CC).
- Page 41 of 41
INDHRASEN PILLAY SC
CHAMBERS
DURBAN
24 October 2019
☏ 031-305 1771
LISA K OLSEN
CHAMBERS
DURBAN
24 October 2019
☏ 031-305 1774
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT Case No: CCT172/19
LAC Case No: DAB/2018
Labour Court Case No: D722/2015 & D459/2016
In the matter between:
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA (KZN) Applicant
and
LUFIL PACKAGING (ISITHEBE)
[A DIVISION OF BIDVEST PAPERPLUS (PTY) LTD] First Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
LEON PILLAY N.O. Third Respondent
FIRST RESPONDENT’S WRITTEN SUBMISSIONS
I INTRODUCTION ................................................................................................ 1
II FACTS AND LITIGATION HISTORY ............................................................ 3
III THE COMMON LAW AND THE LRA ........................................................... 6
COMMON LAW .............................................................................................................. 6
THE LRA ...................................................................................................................... 8
Registration .............................................................................................................. 9
Organisational Rights ............................................................................................ 12
NUMSA’s Interpretation of s 4(1)(b) ..................................................................... 13
The Collateral Challenge Analogy ......................................................................... 16
IV NUMSA MEMBERSHIP .................................................................................. 18
V CASE LAW ......................................................................................................... 21
SUPPORTING CASE LAW .............................................................................................. 21
CASES ABOUT INDIVIDUAL RIGHTS ............................................................................. 25
CONCLUSION ............................................................................................................... 29
VI THE CONSTITUTION SUPPORTS LUFIL .................................................. 30
THE ROLE OF S 39(2) .................................................................................................. 31
THE RIGHT TO JOIN A TRADE UNION .......................................................................... 34
THE RIGHT TO FREEDOM OF ASSOCIATION ................................................................. 36
ANY LIMITATION IS JUSTIFIABLE ................................................................................ 40
VII INTERNATIONAL AND COMPARATIVE LAW ....................................... 41
INTERNATIONAL LAW .......................................................................................... 42
COMPARATIVE LAW ............................................................................................. 46
VIII CONCLUSION ................................................................................................. 49
1
I INTRODUCTION
1. If a union wants to obtain organisational rights in a workplace from an
employer, it has two options. It can convince the employer through dialogue or
industrial action to grant it those rights. Or, if it is “sufficiently representative”1
of the employees in that workplace, it can pursue a claim for organisational
rights under Part A of Chapter III of the Labour Relations Act 66 of 1995
(LRA).
2. The question in this case is simple. If a union follows the second path, can it
claim as members employees who are not entitled, under the union’s own
constitution, to join that union? Put differently, when a union claims
organisational rights against an employer under the LRA, is the employer
precluded from resisting the claim on the basis that its employees cannot
lawfully be members of the union?
3. The Applicant (NUMSA) says the answer to both questions is Yes. It argues
that unions are free to disregard their constitutions and to admit as members
whomsoever they please, regardless of any provisions in their constitutions
governing eligibility for membership. Admission to membership, it contends, is
a purely internal issue. Even if the union admits as a member an employee not
eligible under its constitution to be admitted, the employer has no right to
question the validity of such membership.
1 LRA s 11.
2
4. The First Respondent (Lufil) says the answer to the questions is No. It argues
that, when a union asserts a claim before the CCMA for organisational rights
under the LRA, it seeks to enlist the coercive power of the state. To do so it
must establish that it is “sufficiently representative” of the employees in the
workplace; and to do this, it needs to show that the employees in the workplace
that it claims as its members have validly been admitted as members. This will
not be the case where the union’s constitution precludes the employees from
being admitted as members.
5. Lufil’s answer does not limit the constitutional rights of unions or of employees.
NUMSA remains free to amend its constitution, expand its scope, and enable it
lawfully to admit Lufil’s employees. And Lufil’s employees are free to join any
union whose constitution does not preclude them from becoming a member.
6. In truth, holding unions to their constitutions, particularly when it comes to
expanding the scope of the union, promotes – rather than limits – their
associational rights. When a union purports to admit members contrary to its
founding document, it limits the rights of all its existing members to associate
on the terms they agreed: the union’s constitution.
7. These heads of argument are structured as follows:
7.1. Part II briefly summarises the relevant facts and litigation history;
7.2. Part III sets out how union membership is regulated under the common
law and the LRA;
7.3. Part IV demonstrates that Lufil’s employees fall outside the scope of
3
NUMSA’s constitution;
7.4. Part V addresses the relevant case law and shows why NUMSA’s
argument is unpersuasive;
7.5. Part VI establishes that the Constitution support’s the LAC’s
interpretation; and
7.6. Part VII deals with international and compartive law.
II FACTS AND LITIGATION HISTORY
8. Lufil operates in the paper and packaging industry.2
9. In 2015, NUMSA requested organisational rights from Lufil, claiming that 70%
of Lufil’s employees were its members.3
10. Lufil demurred. It pointed out that, in terms of NUMSA’s constitution, it could
not admit as members employees working in the paper and packaging industry.4
While NUMSA can, under its constitution, admit employees in a wide range of
industries, from industrial chemicals to the IT industry, it has consciously
chosen in its constitution not to extend its scope to paper and packaging.5
11. NUMSA referred to the Commission for Conciliation, Mediation and
Arbitration (CCMA) a claim for organisational rights under the LRA.6 Lufil
objected, on the basis that NUMSA was not entitled to organisational rights in a
2 Founding Affidavit at para 8: Record Vol 1, p 5.
3 Founding Affidavit at para 11: Record Vol 1, p 6. The letter appears as PB1: Record Vol 1, p 10.
4 Founding Affidavit at para 12: Record Vol 1, p 6. The letter appears as PB2: Record Vol 1, p 11.
5 See Part IV below.
6 Founding Affidavit in Review of Ruling at para 17: Record Vol 3, p 263.
4
workplace that fell outside its permitted constitutional scope. It also asserted
that its employees were not eligible to be members of NUMSA and that in
admitting them NUMSA had acted ultra vires its own constitution.7
12. In June 2015, the Third Respondent (the Arbitrator) sided with NUMSA on
the preliminary point.8 Lufil approached the Labour Court to review the
Arbitrator’s preliminary ruling (Review of Ruling).9
13. In March 2016, on the basis of the original ruling, the Arbitrator granted
NUMSA organisational rights in terms of ss 12 to 16 of the LRA.10
Lufil took
that decision on review in the Labour Court as well (Review of Award).11
14. The two reviews were consolidated before the Labour Court. The Labour Court,
on 20 April 2018, upheld the Arbitrator’s rulings.12
Its reasoning can be
captured in this statement: “Had the legislature intended the scope of
registration or the union’s constitution to be determinative of the right to
organisational rights, it would have said so.”13
It also held that the rights at
issue were rights of the employees, not rights of the union.14
7 Record Vol 1 pp 7-8, FA para’s 12.6, 14, 16u and 17.1. This was denied in NUMSA’s answering affidavit – Record vol
1pp 23-24, AA para’s 6.8 and 8.4. 8 Ruling on Preliminary Issue: Record Vol 2, p 49. The Arbitrator held (correctly, with respect – at para 33) that the
employer’s point was not jurisdictional, but nonetheless raised a “preliminary” issue, which should be decided in the
interests of expeditious dispute resolution. His ruling was that “NUMSA is entitled to claim organizational rights from
the Employer Party”. This was understood by all concerned (including the Arbitrator himself, as his subsequent award
demonstrates) as disposing of the argument that NUMSA could not rely on members admitted by it in breach of its
constitution to establish that it was “sufficiently representative”. 9 Notice of Motion: Record Vol 3, p 254.
10 Arbitration Ruling: Record Vol 3, p 246.
11 Notice of Motion: Record Vol 4, p 282.
12 Labour Court Judgment: Record Vol 5, p 371.
13 Labour Court Judgment at para 29: Record Vol 5, p 379.
14 Ibid.
5
15. Lufil appealed to the Labour Appeal Court.15
The LAC (Musi JA and Murphy
and Savage AJJA) upheld the appeal. It held that s 4(1)(b) of the LRA
necessarily implies that the right to join a trade union is “circumscribed by the
membership eligibility criteria in the trade union’s constitution”.16
Accordingly,
if a trade union purports to admit a member contrary to its constitution, “[s]uch
a decision is ultra vires and invalid and, as such, susceptible to challenge by the
employer from whom organisational rights – based on the membership
concerned – is sought.”17
It summarized its reasoning as follows:
“The correct legal position, therefore, is that NUMSA had to show that it was
sufficiently representative. The employees on which it 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. As such, NUMSA was not sufficiently representative of the employees at
the workplace and therefore was not entitled to any organisational rights.”18
It also held that:
“The requirement that eligibility to join a trade union be determined by the provisions
of its constitution, as adopted by its own decision-making body and registered by the
Registrar, gives effect to the legitimate government policy of orderly collective
bargaining at sectoral level. The means of implementation, involving supervision of
the scope of union activity by the Registrar, are minimally restrictive and are
carefully tailored to the purpose of achieving the policy. Section 4(1)(b) of the LRA is
accordingly consistent with the Constitution.”19
16. NUMSA now seeks leave to appeal to this Court.
15
Statement of Grounds for Appeal: Record Vol 5, p 381. 16
LAC Judgment at para 30: Record Vol 5, p 454. 17
LAC Judgment at para 33: Record Vol 5, p 455. 18
LAC Judgment at para 37: Record Vol 5, p 457. 19
LAC Judgment at para 32: Record Vol 5, p 455.
6
III THE COMMON LAW AND THE LRA
17. This Part sets out the regulation of union membership under common law and
under the LRA. It demonstrates that NUMSA’s approach is alien to our law.
COMMON LAW
18. The position under the common law is simple: an association only has the
powers granted to it by its founding document. As the Court put it in
Abrahamse:
“A corporation is commonly styled a ‘legal person’, but the appellation ‘person’ is
applicable to it only by analogy; and the analogy fails when it is thus clearly stated
that this legal person is wanting in much that belongs to a natural person — that its
course of existence is marked out from its birth; that it has been called into being for
certain special purposes; that it has all the powers and capacities, and only those,
which are expressly given it, or are absolutely requisite for the due carrying out of
those purposes; and that all the obligations it affects to assume which do not arise
from or out of the pursuit of such purposes, are null and void.”20
19. A union is, in law, a voluntary association. It exists, ultimately by virtue of a
contractual relationship, where “[t]he contract among its members and between
the members and the trade union is embodied in the constitution”.21
The
20
Abrahamse v Connock’s Pension Fund 1963 (2) SA 76 (W) at 79, quoting Street on the Doctrine of Ultra Vires 4,
quoted with approval in ABSA Bank Ltd v South African Commercial Catering and Allied Workers Union National
Provident Fund (Under Curatorship) 2012 (3) SA 585 (SCA) at para 31. 21
National Union of Metal Workers of South Africa and Others v Congress of South African Trade Unions and Others
[2014] ZAGPJHC 59 at para 34, citing Ex parte United Party Club 1930 WLD 277; Turner v Jockey Club of SA 1974 (3)
SA 633 (AD); Natal Rugby Union v Gould [1998] ZASCA 62; 1999 (1) SA 432 (SCA) at 440.
7
constitution of a union therefore “determines the nature and scope of the
union’s existence and activities, while also prescribing and demarcating the
powers of its various functionaries.”22
20. As a matter of common law, if a person is precluded by a union’s constitution
from becoming a member, the union – and anyone purporting to act on its
behalf – has no power to admit her as a member and she is incapable as a matter
of law of becoming one. Any purported admission of such employees as
members is ultra vires the union's constitution and invalid.23
21. This Court has endorsed that position in the context of one of the most
important forms of voluntary associations – political parties. In Ramakatsa,
Yacoob J wrote:
“I do not think that the Constitution could have contemplated political parties could
act unlawfully. On a broad purposive construction, I would hold that the right to
participate in the activities of a political party confers on every political party the
duty to act lawfully and in accordance with its own constitution. This means that our
Constitution gives every member of every political party the right to exact compliance
with the constitution of a political party by the leadership of that party.”24
22. This Court rightly recognized that adherence to an association’s constitution is a
necessary condition for the right to participate in that association. As we
22
NUMSA v COSATU (n 21) at para 37. 23
Van Wyk and Taylor v Dando and Van Wyk Print (Pty) Ltd (1997) 7 BLLR 906 (LC), particularly at 910 F-G; South
African Local Government Association v Independent Municipal Allied Workers Union and others [2014] 6 BLLR 569
(LAC), particularly at para's 30-32; Gründling v Beyers and others 1967(2) SA 131 (W), particularly at 139H - 140B,
1490-F and 151C; Sorenson v Execitive Committee, Teamway and Omnibus Workers Union (Cape) 1974 (2) SA 545 (C),
particularly at 551C-552F; E Fergus & S Godfrey ‘Organising and Bargaining Across Sectors in South Africa: Recent
developments and Potential Problems’ (2016) 37 ILJ 2211 at 2227; Lord Wedderburn The Worker and the Law (3rd
ed.)
(Sweet and Maxwell) 748-9; Martin v Scottish TGWU [1952] AU ER 691 (HL) (union has no capacity to admit in breach
of its constitution and decision to admit therefore null and void); and Yorkshire Miners Association v Howden (1905) AC
256 (HL). 24
Ramakatsa and Others v Magashule and Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC) at para 16.
8
explain in more detail in Part VI, the same must be true of unions.
THE LRA
23. The LRA reinforces and reflects the same approach.
24. Before referring to the provisions most directly in point, we point out that s 3(a)
of the LRA requires that any person applying the LRA must interpret its
provisions to give effect to its primary objects. In terms of s 1, its “primary
objects” include “to give effect to and regulate” the fundamental rights
conferred by the Constitution; “to provide a framework” within which
employees and their trade unions and employers’ organisations can collectively
bargain; and to promote “orderly collective bargaining” and “collective
bargaining at sectoral level”.
25. To advance these objects, amongst others, detailed provision is made in the
LRA regarding the registration of trade unions, employers’ organisations and
bargaining councils and for the conferral of certain organisational rights on a
trade union that is sufficiently representative.
26. Chapter II of the LRA is entitled “Freedom of Association and General
Protections”. Section 4 is its first provision. Section 4(1)(b) provides: “Every
employee has the right … to join a trade union, subject to its constitution.”
27. That means that an employee cannot demand to join a trade union if she is not
eligible for membership of the union concerned in terms of its constitution. But,
9
as we demonstrate, it also means that a union cannot assert organizational rights
against an employer under the LRA based on the purported admission of
employees ineligible for membership in terms of its constitution.
28. The relevant provisions that give the context to s 4(1)(b) concern registration of
trade unions, and the granting of organisational rights.
Registration
29. Sections 95 and 96 deal with the requirements for registration of a trade union.
In terms of s 96(1)(b), “[a]ny trade union … may apply for registration by
submitting to the registrar”, amongst other information, “a copy of its
constitution”.
30. The LRA clearly specifies what a trade union’s constitution “must” contain in
order to be registered. In terms of s 95(5)(b), the constitution must “prescribe
qualifications for, and admission to, membership”. Section 95(5) also requires
the constitution to deal, in detail, with loss of membership.25
31. If the Registrar is satisfied that the trade union meets the requirements for
registration – including having a constitution that prescribes qualifications for
membership – she must register the trade union.26
32. The LRA also provides a simple procedure for trade unions to register
amendments to their constitutions. Section 101(1) recognizes the right of trade
unions to amend or replace their constitutions. The trade union must “send the 25
LRA ss 95(5)(c) to (e). 26
LRA s 96(3).
10
registrar a copy of the resolution and a certificate signed by its secretary
stating that the resolution complies with its constitution.”27
The Registrar
checks that the amendment “meets the requirements for registration”.28
She is
then obliged to register the amendment and send the trade union a certificate.
The amendment takes effect from the date of the certificate.29
33. Registration under the LRA has been said to impose “a measure of
accountability”30
on a trade union. As Landman put it, registration “permits the
state and employers to know with whom they are dealing, to have access to the
constitution of the trade union as a public document, to contribute towards the
maintenance of the principles of democracy in the union, to secure protection
for union members, also as regards the financial circumstances of the union
and to enable society to measure the progress and development of trade
unions.”31
34. In terms of s 100(a) of the LRA, registered trade unions are required to submit a
statement on the number of members they have to the registrar on an annual
basis. The form they are required to complete requires them to report on the
number of employees by sector.32
As Fergus and Godfrey point out, registration
as to sector plays an important role in determining a union’s ability to join a
bargaining council, and that council’s ability to extend collective agreements.
27
LRA s 101(2). 28
LRA s 101(3). 29
LRA s 101(4). 30
Fergus & Godfrey (n 23) at 2217. 31
A Landman ‘The Registration of Trade Unions – The Divide Narrows’ (1997) 18 ILJ 1183 at 1188 32
Regulations to the LRA in GNR 1016 CG 38317 (19 December 2014), reg 10.
11
Allowing unions to admit outside their registered scope creates “the possibility
of confusion” as “the validity of any statistics relied upon to determine a union's
representativeness may be doubted.”33
35. Fergus points out that the ability of an employer to know with whom it is
dealing, and value to society and state of being able to track the progress of
unions, will be undermined if trade unions can organize outside their
constitutional scope.34
In addition, an unbounded entitlement for a union to
claim members with total disregard to its constitution undermines core
constitutional values of accountability, transparency and democracy:
“[T]he purposes of the statutory requirements for the registration of trade unions …
extend beyond the simple regulation of relationships between unions and their
members to include promoting accountability, transparency and democracy in
unions’ internal processes and procedures. Allowing unions to recruit or organise
workers on an ad hoc basis without regard for their constitutions subverts these
purposes to the potential detriment of their members and the public at large.”35
36. The above all supports the following conclusions expressed by the LAC in
respect of the present matter:
“The ultra vires rule is of both practical and policy value. There is a direct
relationship between the conception of the trade union as a distinct legal entity and
the rule that it may not legally carry out any activity which is not authorised by the
LRA and the powers and capacities provided in its constitution. The LRA grants trade
unions specific powers and capacities to act within a particular scope and does so in
furtherance of a contemplated constitutional and policy framework. The principle of
33
Fergus & Godfrey (n 30) at 2231. 34
E Fergus ‘The Disorganisation of Organisational Rights – Recent Case Law and Outstanding Questions’ (2019) 40 ILJ
685 at 709. 35
Fergus & Godfrey (n 2330) at 2230-1.
12
legality requires observance of that framework and its purposes may not be
arbitrarily dissipated. NUMSA is accordingly not permitted in terms of the common
law or the LRA to allow workers to join the union where such workers are not
eligible for admission in terms of the union’s own constitution.”36
Organisational Rights
37. The LRA does not require trade unions to register. However, certain rights can
only be claimed by registered trade unions. That includes the organisational
rights NUMSA seeks in this matter. This is clear from the definitions in ss 11,37
14(1)38
and 16(1)39
of the LRA.
38. The organisational rights a registered union can claim include: access to the
workplace;40
the deduction of union dues;41
the recognition of union
representatives;42
leave for union activities;43
and disclosure of information.44
39. A union does not have to rely on the LRA to secure these organisational rights.
If it can convince an employer to afford it those rights without reliance on the
LRA, it is free to do so. The LRA, however, imposes the coercive power of the
state to compel an employer to grant a qualifying union organisational rights,
36
LAC Judgment at para 34: Record Vol 5, p 456. 37
LRA s 11 reads: “In this Part, unless otherwise stated, ‘representative trade union’ means a registered trade union, or
two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an
employer in a workplace.” 38
LRA s 14(1) reads: “In this section, ‘representative trade union’ means a registered trade union, or two or more
registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a
workplace.” 39
LRA s 16(1) reads: “In this section, ‘representative trade union’ means a registered trade union, or two or more
registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a
workplace.” 40
LRA s 12. 41
LRA s 13. 42
LRA s 14 43
LRA s 15. 44
LRA s 16.
13
whether it wants to or not. Put differently, the LRA grants a union
organisational rights even if it cannot secure them through negotiation or
industrial action, provided the union meets certain conditions.
40. The key requirement for the rights NUMSA claims is that the union is
“sufficiently representative of the employees employed by an employer in a
workplace”.45
That is a direct concern about the membership of the union. There
must be sufficient employees in the workplace who are members of the union to
justify granting the organisational rights.
41. The process for asserting the rights is simple. The union writes to the employer
to notify it that it seeks to exercise the rights.46
If the union and the employer
cannot conclude a collective agreement, either party can refer the dispute to the
CCMA. It first attempts to resolve the dispute through conciliation. If that fails,
the matter may be referred to arbitration. Ultimately, the CCMA can compel the
employer to grant organisational rights to a union.
42. The rights that can be claimed under the LRA are rights of the union, not of its
members. The union must satisfy the CCMA that it meets the conditions to be
afforded those rights.
NUMSA’s Interpretation of s 4(1)(b)
43. NUMSA appears to argue that the case turns on the interpretation to be given to
s 4(1)(b) of the LRA. Lufil accepts the provision is of some relevance but the 45
LRA ss 11. For organisational rights under ss 14 and 16, the union must represent a majority of the employees. 46
LRA s 21(1).
14
fundamental question is not how to interpret s 4(1)(b). The fundamental
question is whether a trade union is entitled to rely on employees ineligible to
be admitted as members, but purportedly admitted by it, when asserting a claim
under the LRA for organisational rights. The provisions requiring interpretation
are the word “representative” in the phrase “sufficiently representative” in s 11
and the word “members” (in the phrase “have as members”) in ss 14(1) and
16(1).
44. In each instance this turns on whether employees admitted by a union in breach
of its constitution are to be considered members, for the purpose of these
provisions. Lufil’s contention is, as made clear above, that on the application of
the ultra vires doctrine (reinforced by several provisions of the LRA) they are
not. Nonetheless, to cover the contingency that this is thought to be of
importance, we turn to address NUMSA’s argument as to the proper
interpretation to be given to s 4(1)(b)
45. NUMSA argues that the words “subject to its constitution” in s 4(1)(b) should
be interpreted only to regulate the relationship between trade union and its
members47
; and not to permit an employer to object to membership when a the
union admits a member not falling within the union’s “scope”.48
Section 4(1)(b)
does not, so NUMSA argues, preclude the union and employee from “choosing
to ignore” such a provision;49
and if its constitution “disqualifies membership of
47
Applicant’s Written Submissions at para 54. 48
Applicant’s Written Submissions at paras 51 and 56. 49
Applicant’s Written Submissions at para 56.
15
certain employees”, the union is “not … bound to deny such membership”.50
46. NUMSA’s argument that the union and employee are entitled to ignore a
provision in the union’s constitution that renders the employee ineligible to be
admitted as a member is not legally tenable:
46.1. First and foremost, it renders nugatory s 95(5)(b) of the LRA, which
obliges a trade union, as a condition for registration, to “prescribe” in its
constitution “qualifications for, and admission to, membership”. On
NUMSA’s interpretation, this is rendered pointless, as the union is at
liberty simply to ignore whatever its constitution provides on the issue.
46.2. Secondly, if the union (or some or other representative thereof) is at
liberty to ignore them, this also divests the relevant provisions of the
union’s constitution of any meaningful purpose or effect.
46.3. Thirdly, had the lawgiver intended such a radical departure from well-
established common-law principles, it would doubtless have made this
clear. That it did not do so speaks volumes.
46.4. Fourthly, s 4(1)(b) confirms what would in any event have been apparent,
namely that an employee has no right to join a union which, by its
constitution, has rendered her ineligible to become a member. It in no
way supports the argument that a union is free to ignore its constitution at
will, far less that, if it does so, this is a matter which cannot be raised
against it if it seeks a right contingent on proof of its membership.
50
Applicant’s Submissions at para 66.
16
47. The only coherent interpretation of the relevant provisions read together is that
a union seeking organisational rights must, if this is disputed, establish that its
claimed members are members in terms of its constitution.
The Collateral Challenge Analogy
48. The analogy drawn by the LAC to a collateral challenge is entirely
appropriate.51
The analogy is simple.52
When an organ of state seeks to use
coercive power against a subject, the subject is entitled to resist this by raising a
collateral attack on the validity of the underlying administrative act sought to be
enforced. The ordinary procedural rules for when a challenge should be brought
do not apply – the challenge can be raised at any time.53
As the SCA has put it:
“The right to challenge the validity of an administrative act collaterally arises
because the validity of the administrative act constitutes the essential prerequisite for
the legal force of the action that follows and ex hypothesi the subject may not then be
precluded from challenging its validity.”54
49. Similarly, when a union relies on the statutory (coercive) power of the CCMA
under the LRA to compel an employer to grant it organisational rights, the
employer cannot be precluded from questioning whether the basis for the
exercise of that coercive state power – that a sufficient number of its employees
are lawful members of the union – is present.
51
LAC Judgment at para 35: Record Vol 5, pp 456-7. 52
NUMSA’s attack on the analogy - Applicant’s Written Submissions at para’s 94 and 95 - reveals that it does not
understand the point made by the Court and supported by Lufil. It thinks it applies only to the enforcement of the
Commissioner’s ruling and overlooks the fact that the point relates to the validity of the admission of the member by the
union. Lufil does not claim that NUMSA’s acceptance of Lufil’s employees as members constitutes administrative
action. That is why the collateral challenge jurisprudence is arguably not directly applicable and only analogous. 53
Oudekraal Estate (Pty) Ltd v City of Cape Town and others [2004] 3 All SA 1 (SCA) para 32 et seq. 54
Ibid at para 36 (our emphasis).
17
50. The classic statement justifying collateral challenges is in Boddington:
“It would be a fundamental departure from the rule of law if an individual were liable
to conviction for contravention of some rule which is itself liable to be set aside by a
court as unlawful. Suppose an individual is charged before one court with breach of a
byelaw and the next day another court quashes that byelaw – for example, because it
was promulgated by a public body which did not take account of a relevant
consideration. Any system of law under which the individual was convicted and made
subject to a criminal penalty for breach of an unlawful byelaw would be inconsistent
with the rule of law.”55
51. So too here. NUMSA does not claim that its constitution cannot be enforced. It
presumably accepts that any of its members could approach a court tomorrow to
question whether Lufil’s employees are valid members. But it seeks to deny that
right to Lufil, against whom it seeks to enforce coercive state power on the basis
of the (alleged) membership of Lufil’s employees. The state cannot coerce its
citizens based on an illegality. Nor can NUMSA invoke state power if its right
to do so rests on an unlawful and invalid act.
52. The analogy extends further. A collateral challenge is available if “the right
remedy is sought by the right person in the right proceedings and
circumstances.”56
As we set in Part V, it may be the case that an employer is
not always entitled to question an employee’s union membership. But it must
be able to do so in these circumstances where a union demands organisational
rights.
55
Boddington v British Transport Police [1999] 2 AC 143 (Lord Irvine of Lairg LC), cited with approval in City of
Tshwane Metropolitan Municipality v Cable City (Pty) Ltd [2009] ZASCA 87; [2010] 1 All SA 1 (SCA); 2010 (3) SA
589 (SCA) at para 14 and Oudekraal (n 53) at para 32; and Merafong City Local Municipality v AngloGold Ashanti
Limited [2016] ZACC 35; 2017 (2) BCLR 182 (CC); 2017 (2) SA 211 (CC) at fn 38. 56
Oudekraal (n 53) at para 28. See also Giant Concerts CC v Rinaldo Investments (Pty) Ltd [2012] ZACC 28; 2013 (3)
BCLR 251 (CC) at para 34; Areva NP Incorporated in France v Eskom Holdings Soc Limited and Others [2016] ZACC
51; 2017 (6) BCLR 675 (CC); 2017 (6) SA 621 (CC) at paras 40 and 53.
18
IV NUMSA MEMBERSHIP
53. Before the LAC, NUMSA accepted that Lufil’s employees fell outside its
scope.57
In this Court, it now advances an argument that its constitution permits
it to admit any employee, in any sector. The argument must fail.
54. Eligibility for membership of NUMSA is clearly defined in its constitution.
55. Clause 1(2) defines the “scope” of NUMSA as follows: “The scope of the Union
is the metal industry. See Annexure ‘B’ for details.” Annexure B provides that :
“The Union shall be open to58
all workers employed in any of the following
industries”(emphasis added), after which a series of industries59
are listed and
defined.
56. Annexure B reaches far and wide to include transport, security, mining, health
services renewable energy and the IT industry.60
But there is nothing that could
be interpreted to include the paper or packaging industry in which Lufil
operates.
57. Eligibility for membership of NUMSA is directly tied to its scope, not only by
the introduction to annexure B, quoted above, but also by clause 2(2), which
reads: “All workers who are or were working in the metal and related
57
See, for example, LAC Judgment at para 21, third sentence: Record Vol 5, p 451. 58
The obvious corollary is that the Union shall not “be open to” workers employed in other industries. 59
Initially collectively defined, by clause 22 of annexure B, as “THE METAL AND RELATED INDUSTRIES”. An
amendment to the constitution changed this so that the collection of industries came to be referred to as “The scope of the
union”. 60
Record Vol 5 pp 438-442.
19
industries are eligible for membership of the Union subject to the discretion of
the relevant Shop Stewards Council.”61
58. NUMSA’s constitution also distinguishes between active, associate and
continuation membership.62
Active membership “is available for workers
currently employed in the metal or related industry.”63
Associate and
continuation membership are for people who used to have active membership,
but who are no longer employed in the metal or related industries.
59. The centrality of NUSMA’s constitutional scope in determining the bounds of
membership is reinforced by the provisions for loss of membership. Clause
2(3)(b)(i) provides: “A member automatically loses membership 13 weeks after
becoming unemployed in the industry unless” certain conditions are met,
including if “that member is re-employed in the metal and related industries”.64
60. In short, NUMSA can only lawfully accept as members workers who are
employed in the industries listed in the industries listed in Annexure B to its
Constitution. The paper and packaging industry does not appear in Annexure B.
Therefore, NUMSA cannot lawfully admit Lufil’s employees as its members.
61. NUMSA’s argument to the contrary is untenable. It contends that because
clause 2(2) begins “All workers” instead of “Only workers”, it should not be
interpreted “restrictively” to limit NUMSA’s membership to those captured by
Annexure B. The effect of that interpretation is that there is no limitation on
61
Record Vol 5, p 403 62
NUMSA constitution cl 2(2), Record Vol 5, p 403. 63
Record Vol 5, p 404. 64
Record Vol 5, p 405.
20
membership at all. That would render clause 1(2), 2(2) and the whole of
Annexure B nugatory. (It would also be inconsistent with NUMSA’s recent
amendment of Annexure B to expand its scope; if its Constitution already
permitted it to admit any employee as a member, it is difficult to understand
why it bothered to amend Annexure B.)
62. NUMSA itself contends that the LRA imposes no limits on the scope a union
may choose to organize in; it may even regulate membership without regard to
scope.65
That may be correct but NUMSA has made its choice and elected to
limit its scope – to which it explicitly ties eligibility for membership – to the
industries listed in Annexure B.
63. Of course, as NUMSA is forced to concede,66
there is an easy solution to this
problem: it can amend Annexure B to expand its scope. Ordinarily, NUMSA
can only amend its constitution at a National Congress where: (a) general
secretaries receive 90 days’ notice of the proposed amendments; and (b) two
thirds of the National Congress support the amendment.67
64. However, NUMSA’s constitution contemplates a far easier process for altering
NUMSA’s scope. In terms of s 1(2): “The Central Committee may amend the
scope from time to time.” All that would be required for NUMSA to validly
admit employees of Lufil would be an appropriate resolution of the Central
Committee, communicated in the required manner to the Registrar and
65
Applicant’s Written Submissions at paras 79-81. 66
Applicant’s Written Submissions at para 79. 67
NUMSA constitution cl 14(1): Record Vol 5, p 435.
21
registered by her. NUMSA has not explained why it has chosen not to amend its
scope, and instead seeks to admit members outside its constitutional scope.
65. NUMSA seems to contend that the ease with which it could amend schedule B
is a point in its favour. NUMSA’s constitution is so easy to amend, it argues, so
why bother enforcing it? But the opposite is true. As we detail below, the ability
to easily amend its Constitution means that there is no limitation of NUMSA’s
(or its members) rights to association, or to join a trade union, and therefore no
reason not to follow the LAC’s interpretation of the LRA.
V CASE LAW
66. There is no case law that supports NUMSA’s position. The case law all either:
66.1. Support’s the LAC’s interpretation; or
66.2. Deals with the exercise of distinguishable rights accorded by the LRA to
individual employees.
67. Until the Labour Court’s decision in this case, our courts have never held that a
union can assert organisational rights against an employer without establishing
that the employees it claims as members have been lawfully admitted.
68. We first deal with the supporting case law, and then with the distinguishable
case law upholding certain individual employees’ rights.
SUPPORTING CASE LAW
69. First, as long ago as 1997, the Labour Court held that the purported admission
22
as a member of a union contrary to its constitution is ultra vires and that such a
person is not a member. In Van Wyk and Taylor v Dando and Van Wyk Print
(Pty) Ltd68
Landman J held: “A trade union … is constituted in terms of its
written constitution and has no powers save for those which are found in its
constitution.”69
70. Second, in Afgri Operations Ltd v MacGregor NO & Others,70
the Labour Court
reached the same conclusion as the LAC in this matter. The issue, like this one,
involved organisational rights in a workplace (although in Afgri Operations the
dispute concerned the withdrawl of organisational rights). The union’s
constitutional scope included a range of services; but not food or farming
services in which the employer operated.
71. Although the court characterised the case as one concerning locus standi,71
the
issue was the same – could a union assert organisational rights when its
supposed members were outside its constitutional scope? Moshoana AJ held it
could not:
“In terms of s 95(5)(b) of the Act, a constitution must prescribe qualifications for and
admission to membership. Therefore, if the fourth respondent's contention is to be
upheld, this peremptory provision is rendered meaningless and useless. If a union can
admit any worker, why would it be necessary for its constitution to prescribe
requirements for admission?”72
68
[1997] 7 BLLR 906 (LC); (1997) 18 ILJ 1059 (LC), particularly at 1063 69
Ibid at 910. 70
(2013) 34 IL] 2847 (LC). 71
The issue in this case was also initially framed as one of standing. Lufil conceded before the LAC that it was not truly
an issue of standing, but of the merits of the claim. LAC Judgment at para 23. But the incorrect framing of the issue in
Afgri Operations does not affect the substance of the judgment. 72
Ibid at para 26.
23
72. The Court also expressly rejected the argument that requiring trade unions to
adhere to their constitutions was unconstitutional73
– a point we return to below.
73. Third, this approach has been followed in a string of rulings by the CCMA in
circumstances substantially identical to the present:
73.1. In HOTELICCA and Grand West Casino74
the applicant union applied to
the CCMA for organisational rights in the respondent's workplace. The
employer operated in the gaming industry. The CCMA refused the
application because the union's registered scope was for the hotel
industry, not the gaming industry.
73.2. Similarly, in CEPPWAWU and Pop Snacks,75
the union sought
organisational rights. The commissioner held that a union may operate
only in sectors defined in its constitution. Importantly, the Commissioner
held (with reference to s 4(1)(b) of the LRA) that denying the union the
organisational rights did not limit the employees’ right to freedom of
association. The employees were free to join any one of the many unions
operating in the sector.
73.3. In SATAWU v Telekleen & Another,76
the CCMA again dismissed an
application by a union seeking organisational rights in a workplace
outside its scope.
73
Ibid at para 28. 74
[2002] 11 CCMA 4. 7.2 (WE4893-02). 75
(2009) 11 BALR 1156 (CCMA). 76
[2010] JOL 25818 (CCMA).
24
73.4. In NUM & Others v MTO Forestry (Pty) Ltd t/a Cape Pine,77
the
commissioner once more refused to grant a union organisational rights in
a workplace beyond its registered constitutional scope.78
74. The only CCMA decision we are aware of that granted organisational rights in
these circumstances is South African Industrial, Commercial and Allied
Workers Union and Denny Mushmoms a Division of Libstar Operations (Pty)
Ltd.79
The employer operated in the agricultural sector, while the union was
registered to operate in the food sector. The CCMA concluded that the
employer fell within the union’s scope because the union’s constitution also
covered “vulnerable workers” generally. Agricultural workers, she reasoned,
where vulnerable. Importantly, the commissioner accepted that “had the union’s
registered scope not covered the employees in question, it could not have
approached the CCMA for organisational rights.”80
75. Fourth, NUMSA refers to the decision in City of Johannesburg v South African
Municipal Workers’ Union for the proposition that “an employer even with the
best of intentions could not gain locus standi to interfere in the internal
workings of a trade union”.81
That submission is misdirected and irrelevant:
75.1. The facts are entirely distinguishable. The City approached the Labour
Court for clarity about which of two warring factions of the union was
77
[2014] CCMA Case number: WEGE2048-13 78
The commissioner in MTO Forestry expressly considered and distinguished Mabote which we discuss below. 79
[2018] 5 BALR 543 (CCMA). Discussed in Fergus (n 34) at 704. 80
Fergus (n 34) at 705 (emphasis added), referring to Denny Mushrooms at para 33. 81
Applicants’ Written Submissions at para 59.
25
legitimate. While holding the City lacked standing to do so, the Labour
Court nonetheless resolved the dispute. That is a wholly unrelated
situation. This case is not about standing, but about whether NUMSA has
established the requirements to exercise a statutory right against Lufil.
75.2. While not expressly overturned on appeal, the LAC expressed clear
disagreement with the Labour Court’s conclusion with regard to standing.
Savage AJA wrote: “My own view is that there was no attempt by the City
to interfere with the affairs of the union but that it sought certainty as to
who it should deal with in the day to day business with the union.”82
CASES ABOUT INDIVIDUAL RIGHTS
76. There are three cases – all relied upon by NUMSA – in which the courts have
declined to entertain an argument by employers that the employees were not
lawful members of the union concerned – Mabote, Bidvest and MacDonald’s
Transport. They are all distinguishable. None of them related to a claim by a
union under the LRA for organisational rights. They related to individual
employees and turned on the interpretation of different statutory provisions.
77. First, Mabote,83
in which the Labour Court (per Steenkamp J) was concerned
with whether an employee was entitled to be represented in a dismissal
arbitration by his chosen union. The employer argued that the employee was not
82
Tshililo and Others v City of Johannesburg and Others [2018] ZALAC 34; [2018] 12 BLLR 1180 (LAC) at para 7. 83
NUM obo Mabote v Commission for Conciliation Mediation and Arbitration and Others [2013] ZALCCT 22; [2013]
10 BLLR 1020 (LC); (2013) 34 ILJ 3296 (LC).
26
a lawful member of the union as his work fell outside the union’s constitutional
scope. The argument failed, essentially on the basis of the Court’s finding that
the provisions in point – primarily CCMA rule 25(1)(b)(iii)84
, but also s
200(1)(b) of the LRA – “on the face of it, grant an employee and his or her
chosen trade union – such as the applicant in this case – an unfettered right for
the union to represent the employee in arbitration proceedings”.85
The Court
also held that “it would place an unduly restrictive interpretation” upon the
above provisions to hold that the NUM was not entitled to represent the
employee.86
78. It was in this context that the Court referred to the fact that s 4(1)(b) of the LRA
provides that an employee may join a trade union “subject to its constitution”;
and held that that restriction “appears to me to regulate the relationship
between the trade union and its members inter se. It is for the trade union to
decide whether or not to accept an application for membership and whether or
not that member is covered by its constitution.”87
79. Mabote is easily distinguishable:
79.1. It turned on different provisions, primarily rule 25(1)(b) of the CCMA’s
rule88
, which permits an employee to be represented by an official “of that
party’s registered trade union”. This was interpreted as conferring a right
84
Para 32 of the judgment makes it clear that the Court considered this provision to be the determinative provision. 85
Ibid at para 24. 86
Ibid at para 30. 87
Ibid at para 27. 88
And s 200(1)(b) of the LRA, which permits a union to act in a dispute on behalf of its members.
27
on the employee to be represented “by his or her chosen trade union”.
79.2. The facts in Mabote are also instructive. The employee worked for the
Kalahari Country Club. That Club was directly controlled by the Sishen
Iron Ore Mine, which fell squarely in the scope of the union.89
The
dismissed employee had long been an admitted and dues-paying member
of the NUM, which had been recognized by his employer. The employer
attempted opportunistically to rely on an accident of legal personality, to
directly prejudice a worker. That is plainly not the case here.
79.3. Importantly, the Labour Court’s decision in Mabote must now be applied
in the light of the LAC’s decision in MacDonald’s Transport which (as
we set out below) expressly limits the finding to representation cases, and
distinguishes this from applications for organisational rights.
80. Second, Steenkamp J again considered a distinguishable issue in Bidvest Food
Services (Pty) Ltd v NUMSA and Others.90
NUMSA had applied for
organisational rights from an employer which operated in the food industry. The
employer refused, and the issue was referred to conciliation. The employer
complained that NUMSA lacked standing to refer the dispute for conciliation
because the employer operated outside its registered scope. The Commissioner
rejected the argument that NUMSA could not refer the dispute for conciliation.
But she also held that “if the union decides to refer this dispute to arbitration
once conciliation fails, the union may fail to prove that it is entitled to the relief 89
Mabote (n 83) at paras 9-10. 90
[2014] ZALCCT 58; (2015) 36 ILJ 1292 (LC).
28
it is seeking.”91
Conciliation failed, and the employees decided to strike in
support of NUMSA’s organisational rights claim. The question was whether
their participation in the strike was or was not protected.
81. The Court held that it was protected because an employee has the right to strike
if he/she has followed the relevant procedures in terms of the LRA, whether that
employee belongs to a union or not. It held that it cannot be the case that, if the
employee happens to belong to (or purport to belong to) a union, the employee
may not strike, merely because the union's constitution does not allow the
employee to be a member.92
82. But Steenkamp J also made it clear that the employees’ right to strike was
distinct from the union’s statutory entitlement to organisational rights. As he put
it: “The union may not succeed in obtaining organisational rights at Bidvest.
But the workers are not precluded from striking in pursuit of that demand.”93
83. Third, NUMSA relies heavily on MacDonald's Transport Upington (Pty) Ltd v
Association of Mineworkers and Construction Union (AMCU) and Others.94
But the case supports the LAC judgment.
84. As in Mabote, the issue in Macdonald’s Transport was whether the employees
were entitled to be represented by their union of choice in unfair dismissal
proceedings. The employer's argument was that their membership of their union
had lapsed due to non-payment of dues. Its argument failed because, first, it was
91
Ibid at para 6. 92
Ibid at paras 16 and 23. 93
Ibid at para 26, see also para 28. 94
[2016] ZALAC 32; (2016) 37 (ILJ) 2593 (LAC); [2017] 2 BLLR 105 (LAC).
29
found that the members’ membership had not in fact lapsed.
85. But the LAC also held that the employer was not entitled to question whether
the employees’ membership of a trade union had lapsed, for the purposes of
representation in dismissal proceedings. The reason was that it was the
employee’s right to choose their representative that was at issue, not the trade
union’s right to be the representative. But in reaching that conclusion, the LAC
(per Sutherland JA) took it for granted that an employer would be entitled to
question membership when the issue was a claim by a union for organisational
rights.
“Certainly, when a union demands organisational rights which accord to it a
particular status as a collective bargaining agent vis à vis an employer, it asserts and
must establish it, itself, has a right to speak for workers by proving they are its
members; sections 11- 22 of the LRA regulate that right. But in dismissal proceedings
(which, plainly, are not about collective bargaining) before the CCMA or a
Bargaining Council forum, the union is not (usually) the party, but rather the worker
is the party. … When an individual applicant wants a particular union to represent
him in a dismissal proceeding, the only relevant question is that worker’s right to
choose that union.”95
Later, the Court reiterated the point: “except as regards the need for a union to
prove membership for collective bargaining purposes, the relationship between
a union and its members is a private matter.”96
CONCLUSION
86. In summary, the current case law does not allow an employer to question an
95
Ibid at para 35. 96
Ibid at para 42.
30
employee’s membership of a union when that employee is asserting her
individual rights to strike, or to be represented by the union of her choice. But
this does not apply where, as in the present case, the union is demanding
statutory organisational rights and needs to prove the membership on which it
relies in order to qualify for the statutory right.
87. Fergus puts the point elegantly in these terms:
“organisational rights are first and foremost rights available to unions rather than to
their employee members. Thus, where the union seeks organisational or bargaining
rights, it must show that it enjoys the necessary capacity to acquire these rights of its
own accord. Where the rights at stake in any given dispute belong to the union’s
members as employees, however, the emphasis on the union's capacity as a legal
person falls away. In turn, employers have no business challenging it. The same
principle and exception applies where third parties attempt to interfere in the internal
affairs of trade unions: in collective bargaining matters (encompassing demands for
organisational rights), the union would necessarily be required to prove that it has
the members it purports to have, and that the memberships have been validly
granted.”97
88. The issue in this case is a narrow one. It is not about employer interference in
internal union affairs. It is about a union establishing the requirements for the
exercise of a statutory right. Where a union asserts those rights, it must establish
that it meets the statutory requirements.
VI THE CONSTITUTION SUPPORTS LUFIL
89. To escape the ordinary application of the LRA and the common law, the
97
Ibid at 707-8.
31
Applicant calls in aid s 39(2) of the Constitution. It claims that the LRA must be
interpreted to promote its rights to freedom of association and to fair labour
practices. That interpretation, it claims, entitles it to organisational rights based
on members who fall outside its constitutionally chosen scope.
90. The argument is bad on four levels:
90.1. It overstates the role of s 39(2);
90.2. The LAC’s interpretation does not limit the right to freedom of
association;
90.3. The LAC’s interpretation does not limit the right to fair labour practices;
and
90.4. If there is any limitation, the limitation would obviously be justifiable.
THE ROLE OF S 39(2)
91. Section 39(2) reads: “When interpreting any legislation, and when developing
the common law or customary law, every court, tribunal or forum must promote
the spirit, purport and objects of the Bill of Rights.” Section 39(2) requires a
particular approach to interpretation, but it is not a licence for courts to ignore
the text of statutes, or to advance some constitutional goals at the expense of
others.
92. NUMSA cherry picks form this Court’s jurisprudence to suggest that statutes
cannot be interpreted to limit rights, even if that limitation is plainly justifiable.
That approach is overly simplistic. Lufil submits that three considerations must
32
guide the Court’s interpretation in terms of s 39(2).
93. First, “judicial officers must prefer interpretations of legislation that fall within
constitutional bounds over those that do not, provided that such an
interpretation can be reasonably ascribed to the section.”98
Overly expansive
interpretations that do not pay sufficient heed to the words of a statute violate
the principle of separation of powers.99
As this Court recently held in Moyo:
“When attempting to interpret legislation by “reading-down” a section in order to
bring it into conformity with the Constitution, care should be taken to stay within the
boundaries of a reasonable and plausible construction that does not rewrite the text.
To overstep this mark would be tantamount to the actual “reading-in” of words into
the statute. To do so would be a clear breach of the separation of powers.”100
94. In addition, the principle of legality “requires that the law must, on its face, be
clear and ascertainable.”101
Interpretations that depart from the ordinary
meaning of statutes threaten that principle and should be justified by strong
substantive constitutional concerns.
95. Second, the Bill of Rights contemplates that the rights it protects may be
limited. Section 36(1) permits the Legislature to pass laws of general
application that limit rights, provided that the limitation is “reasonable and
justifiable in an open and democratic society based on human dignity, equality
98
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others
In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC)
at para 23 (emphasis added). 99
Ibid at para 125. 100
Moyo and Another v Minister of Police and Others; Sonti and Another v Minister of Police and Others [2019] ZACC
40 at para 57. 101
Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others [2009]
ZACC 31; 2010 (2) BCLR 99 (CC) at para 124.
33
and freedom”. The idea that rights are not absolute102
and can be limited is
therefore part of the “spirit, purport and objects” of the Bill of Rights. As this
Court held in Bader Bop: “This is not to say that where the legislature intends
legislation to limit rights, and where that legislation does so clearly but
justifiably, such an interpretation may not be preferred in order to give effect to
the clear intention of the democratic will of Parliament.”103
96. The logic of this approach is inescapable. A prohibition of child pornography
limits the right to freedom of expression, but that limitation is justifiable.104
If
Parliament passes legislation that could be interpreted to either permit or
prohibit the production or sale of child pornography, a court is not obliged to
adopt the interpretation in favour of child pornography.
97. Third, courts must consider all the rights at stake.105
When multiple rights are at
stake, or where the rights of multiple parties are at stake, the different rights will
often require contrary interpretations. Reliance on one right is impermissible.
98. In sum, Lufil submits that both the text and the constitutional rights at stake
support the LAC’s interpretation. But in selecting the correct interpretation
courts must only choose interpretations that do not “unduly strain”, must
102
See, for example, Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of
Offenders (NICRO) and Others [2004] ZACC 10; 2005 (3) SA 280 (CC) at para 23; South African Broadcasting
Corporation Limited v National Director of Public Prosecutions and Others [2006] ZACC 15; 2007 (1) SA 523 (CC) at
para 91 (Moseneke DCJ, dissenting); Gaertner and Others v Minister of Finance and Others [2013] ZACC 38; 2014 (1)
SA 442 (CC) at para 49. 103
National Union of Metal Workers of South Africa and Others v Bader Bop (Pty) Ltd and Another [2002] ZACC 30;
2003 (3) SA 513 (CC) at para 37. 104
De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others [2003] ZACC 19; 2004 (1)
SA 406 (CC); 2003 (12) BCLR 1333 (CC). 105
Phumelela Gaming and Leisure Limited v Gründlingh and Others [2006] ZACC 6; 2006 (8) BCLR 883 (CC) at para
37; Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and
Another [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) at para 44.
34
consider all the rights at stake, and must allow Parliament to legitimately limit
rights.
THE RIGHT TO JOIN A TRADE UNION
99. NUMSA asserts the LAC’s interpretation of the LRA limits the right of workers
“to form and join a trade union”, but does not explain why. It is difficult to
understand how that could be the case.
100. NUMSA does not allege that the LAC’s interpretation limits the rights of trade
unions in ss 24(2)(a) and (b) of the Constitution to “determine its own
administration, programmes and activities”, or “to organize”. Nor does it allege
that the LAC’s interpretation of the LRA limits the right of trade unions to
bargain collectively.106
It must be accepted that limiting the statutory
entitlement to orgnisational rights to registered trade unions with a sufficient
number of validly admitted members is consistent with the union’s
constitutional rights.
101. The right in s 23(2)(a) to form and join a trade union is an individual right of
workers. It is not a right of unions. There can only be a limitation of the right if
workers are in fact prevented from joining a trade union.
102. Section 23(2)(a) does not, having regard to the purpose of the right, confer a
right on a worker to join a trade union contrary to that union’s constitution. The
106
Constitution s 23(5).
35
right to join a trade union, like to right to freedom of association with which it is
closely connected, can only be exercised respecting the correlative rights of
others. If workers form a trade union and elect to provide in its constitution that
it is only open to employees in a particular industry, this is not a limitation of
the right of a worker not working in that industry to join a trade union.
103. An employee of Lufil could also not compel NUMSA to accept her as a
member if NUMSA did not want to accept her. That would clearly be
inconsistent with NUMSA’s (and its members’) right to freedom of association,
and NUMSA’s right to “determine its own administration”. It would effectively
deny a union the right to determine its own membership and deny its members
the right to chooses with whom they wish to associate. The right in s 23(2)(a) is
– like the right in s 4(1)(b) of the LRA – a right to join a union subject to that
union’s constitution.
104. That is consistent with this Court’s finding in Ramakatsa that “the right to
participate in the activities of a political party confers on every political party
the duty to act lawfully and in accordance with its own constitution.”107
The
corollary of the right to join a union, is the duty of a union to obey its
constitution. Without that duty, the right to join is meaningless. And that must
mean that the right to join is subject to the union’s constitution.
105. Fourth, the only effect of the LAC Judgment is to preclude a union from
asserting a statutory right against an employer if its claim is founded on a
107
Ramakatsa (n 24) at para 16.
36
breach of its own constitution. That does not limit the right of a worker to join a
union, subject to the union’s constitution.
106. Fifth, that places no meaningful hurdle in the way of NUMSA claiming
organisational rights for its members:
106.1. NUMSA can, without much effort, amend its constitution to include the
paper and packaging industry.
106.2. NUMSA remains free to seek to convince Lufil to grant it organisational
rights. Its members are also – in terms of the case-law – entitled to strike
to advance that claim.
107. Accordingly, there is no limitation of the right to join a trade union.
THE RIGHT TO FREEDOM OF ASSOCIATION
108. NUMSA asserts that the LAC’s interpretation limits the right to freedom of
association, without ever explaining why. It seems to assume that requiring a
voluntary association to act consistently with its constitution limits free
association.
109. In truth, there is no limitation at all. It promotes the right to freedom of
association to hold voluntary organisations to their constitutions.
110. First, the ability to regulate membership is fundamental to the right to freedom
of association. International law recognizes that “[t]he right to freedom of
association generally entitles those forming an association and those belonging
37
to one to choose with whom they form it or whom to admit as members.”108
111. Without the ability to regulate membership, the right to association is
meaningless. Associations exist to promote a certain purpose. If they cannot
limit their membership to people who share that purpose, they cannot achieve
that goal. As Woolman explains:
“Without the capacity to police their membership and dismissal policies, as well as
their internal affairs, associations would face two related threats. First, an
association would be at risk of having its aims substantially altered. To the extent the
original or the current raison d’étre of the association matters to the extant members
of the association, the association must possess the ability to regulate the entrance,
voice and exit of members. Without built-in limitations on the process of determining
the ends of the association, new members, existing members and even outside parties
could easily distort the purpose, the character and the function of the association.
Second, and for similar reasons, an association’s very existence could be at risk.
Individuals, other groups or a state inimical to the values of a given association could
use ease of entrance into and the exercise of voice in an association to put that same
association out of business.”109
112. In the union context, this risk is obvious. Imagine a union is established to
advance the interests of paper workers. Its constitution limits membership to
workers in that sector. It joins the bargaining council for that sector and
establishes collective agreements with all the major employers. Workers in
other industries see that the union is effective, and seek to join the union. Some
shop stewards start admitting workers in other sectors, contrary to the union’s
constitution. Over time, paper workers become a minority in the union. The
108
Organization for Security and Co-operation in Europe Joint Guidelines on Freedom of Association (2015) at para 95.
See also African Commission on Human and People’s Rights Guidelines on Freedom of Association and Assembly in
Africa (2017) at para 8 “Those founding and belonging to an association may choose whom to admit as members.” 109
S Woolman ‘Freedom of Association’ in S Woolman & M Bishop (eds) Constitutional Law of South Africa (2 ed,
2003) at 44-14 to 44-15.
38
union’s focus shifts to other sectors. Other unions gain majority representation
in the paper workplaces previously represented by the union. The union decides
it is no longer worth being a member of the paper bargaining council.
113. The outcome of not enforcing an association’s membership is fatal:
“To fail to permit [an association] to govern its boundaries and its members in
appropriate ways would make these arrangements impossible to maintain. It would,
in some respects, be equivalent to saying that anyone and everyone owns these
associations – which is, of course, tantamount to saying that no one owns them.”110
114. Of course a union may choose – as NUMSA has previously done – to expand its
scope. It has then changed its purpose and its new membership will be
consistent with that purpose. But it must do so consistently with its founding
documents that protect the rights of existing members. If it allows members to
join contrary to its constitution it undermines the association rights of all its
members.
115. Holding a union to its constitution therefore promotes the right to freedom of
association. It ensures that the power to determine membership is determined in
line with the original agreement between the members. Enforcing that
agreement is foundational to free association. Indeed, it is arguably a
requirement for the exercise of the right that the state is willing to enforce the
boundaries of union membership.
116. Second, NUMSA has not been prevented by the LRA from admitting Lufil’s
employees as members. The only obstacle to it admitting them is its own
110
Ibid at 44-15.
39
constitution. It remains free to amend its constitution, register that amendment,
and then admit as many as Lufil’s employees as may wish to join. The power is
in its own hands. NUMSA does not explain why it has not amended its
constitution to include the paper industry.
117. For that reason, it is not clear that NUMSA as an organization in fact wants to
admit Lufil’s employees as members. If it did, the only way for it to lawfully
express that desire as an organization is to amend its constitution. Any other
course does not be a decision of the union, but an ultra vires decision of certain
officials within the union.
118. Third, Lufil too has a right to freedom of association. That includes a right to
decide whether or not to conclude a collective agreement with a union granting
it organisational rights. That freedom is justifiably limited by the LRA when it
compels Lufil to grant organisational rights to a union that establishes that it is
“sufficiently representative”. As the ILO puts it: “The voluntary negotiation of
collective agreements, and therefore the autonomy of the bargaining partners,
is a fundamental aspect of the principles of freedom of association.”111
119. The limitation is justified because of the extent of the union’s membership. The
right of the employees to fair labour practices outweigh the right of the
employer not to associate where the union is “sufficiently representative”. But it
is still a limitation on Lufil’s s 18 right. If Lufil is prevented from questioning
whether the union validly admitted its employees as members, that limitation is 111
ILO Freedom of Association: Compilation of decisions of the Committee on Freedom of Association (6 ed, 2018) at
para 1313.
40
difficult to justify. It will be compelled to associate, whether or not there is a
justification for compelling it to do so.
120. Fourth, all that is at stake here is whether or not NUMSA can claim
organisational rights. As emphasized earlier, Lufil is not seeking to interfere in
NUMSA’s internal affairs. It seeks only to ensure that the exercise of statutory
power against it is lawful. That is not a limitation of the right to free association.
ANY LIMITATION IS JUSTIFIABLE
121. For the reasons given above, there is no limitation of the rights in either s
23(2)(a) or s 18. But if there is, that limitation is justifiable in terms of s 36(1)
of the Constitution. The limitation would flow from the common law and the
LRA and would therefore be a “law of general application” that can potentially
limit rights. The following factors demonstrate that the limitation is justifiable.
122. First, any limitation is extremely minor. Workers remain free to join any union
whose constitution permits them to join. Unions remain free to amend their
constitutions to admit whatever category of workers they desire. In terms of
existing case law, even if workers join unions contrary to the union’s
constitution, an employer cannot challenge the membership when the employer
exercises her individual rights.
123. Second, there is a powerful purpose behind the limitation. It protects the
associational rights of unions and members by compelling compliance with
41
their own internal documents. It protects the associational rights of employers
by forcing them to recognize organisational rights only when a union has
lawfully admitted its employees as members. It advances the public benefits of
registration that allow the state, the public and employers to know who they are
dealing with and to track the performance of unions. And it fits the LRA’s
preference for collective bargaining within sectors.
124. Third, the limitation is “appropriately tailored”112
to achieve its purpose. It does
not permit unwarranted employer interference in union affairs. It only allows an
employer to question union membership when the union seeks to use coercive
state power, and the employer’s own associational rights are at stake.
125. Fourth, as we set out below, it is entirely consistent with international law and
comparative practice.
126. For these reasons, assuming that there was a limitation of s 23 or s 18, that
limitation is justifiable. Indeed that was the finding of both Afgri Operations113
and the LAC.114
VII INTERNATIONAL AND COMPARATIVE LAW
112
Mlungwana and Others v S and Another [2018] ZACC 45; 2019 (1) BCLR 88 (CC); 2019 (1) SACR 429 (CC) at para
101. 113
Afgri Operations (n 70) at para 28 (“In terms of the Constitution of the Republic of SA, s 23 thereof, every worker has
a right to join a trade union. Therefore, a right to join a trade union is an individual right. However, in s 4(1)(b) of the
LRA, that right has been limited within the contemplation of s 36 of the Constitution to its being subject to the
constitution of the trade union. In other words, if a constitution does not allow a member to join he or she cannot join. If
he or she does nonetheless, he or she will not be acting within the law. It cannot be said that this limitation is not
justifiable in an open and democratic society.”) Of course, the limitation here is more confined. Workers and unions are
held to the constitution only when they seek to interfere with an employer’s right to free association by seeking to compel
the grant of organisational rights. It too must be justifiable. 114
LAC Judgment at para 31: Record Vol 5, pp 454-5.
42
INTERNATIONAL LAW
127. International law is relevant to interpreting the LRA – both because of s 1(b) of
the LRA,115
and because ss 233116
and 39(1)(b)117
of the Constitution demand a
consideration of international law. Consideration must be given, in particular ,
to relevant ILO conventions and recommendations .118
ILO instruments strongly
support the reasoning of the LAC. At worst, they are neutral on this issue.
128. The most important instrument is the Convention on Freedom of Association
and Protection of the Right to Organise No. 87 of 1948 (ILO Association
Convention). It makes it plain that holding unions to their constitutions is not
contrary to free association; it is constitutive of free association. The following
provisions make that clear:
128.1. Article 2 reads: “Workers and employers, without distinction whatsoever,
shall have the right to establish and, subject only to the rules of the
organisation concerned, to join organisations of their own choosing
without previous authorisation” (our emphasis).
128.2. In terms of art 3(1) employees “shall have the right to draw up their
constitutions and rules, to elect their representatives in full freedom, to
organise their administration and activities and to formulate their
115
LRA s 1(b) identifies one of the primary purposes of the Act as: “to give effect to obligations incurred by the Republic
as a member state of the International Labour Organisation”. 116
Constitution s 233 reads: “When interpreting any legislation, every court must prefer any reasonable interpretation of
the legislation that is consistent with international law over any alternative interpretation that is inconsistent with
international law.” 117
Constitution s 39(1)(b) reads: “When interpreting the Bill of Rights, a court, tribunal or forum - … must consider
international law”. 118
Bader Bop (n 103) at para 28.
43
programmes.” While art 3(2) prohibits public authorities from “any
interference which would restrict this right or impede the lawful exercise”
of that right, holding unions to their own constitutions hardly constitutes
interference.
128.3. Article 8(1) requires that unions, “like other persons or organised
collectivities, shall respect the law of the land.” Unions are not entitled to
different or better treatment than what applies to other voluntary
associations – provided those laws are themselves consistent with the
Convention.
129. The ILO Commentary on the ILO Association Convention119
makes it clear that
it is perfectly permissible to: (a) require unions to register their constitutions;
and (b) to hold them to their freely adopted constitutions.
129.1. The ILO Association Convention protects the “freedom of choice with
regard to membership of such organizations.”120
But freedom of
membership must include the freedom of unions to exclude members. As
noted above, the right to associate is meaningless without a right not to
associate.
129.2. The right of employees to establish organizations of their own choosing
implies the right to freely choose “the structure and composition of
organizations; the establishment of one or more organizations in any one
119
Bernard Gernigon, Alberto Odero & Horacio Guido ‘Freedom Of Association’ in Fundamental Rights at Work and
International Labour Standards’ (2003). 120
Ibid at 13.
44
enterprise, occupation or branch of activity”.121
The LRA grants that
right without restriction. It requires only that unions exercise that right in
compliance with their founding document.
129.3. On the right of a union to establish its own rules, the commentary
provides only that: (a) laws “should only lay down formal requirements”;
and (b) “the constitutions and rules should not be subject to prior
approval at the discretion of the public authorities.”122
The LRA meets
both those requirements.
130. Conspicuously, there is nothing in the commentaries that suggests that unions
must have the right to admit members contrary to their own freely-adopted
constitutions. Nor is there anything that suggests unions have a right to
organisational rights
131. The same is true of the view of the ILO’s Committee on Freedom of
Association.123
The Committee recognizes that all employees have the right “to
establish and join organizations of their own choosing.”124
But that right can be
made subject to “the duty of observing formalities concerning publicity or other
similar formalities which may be prescribed by law”. Indeed, “legislation
concerning trade unions in itself does not constitute a violation of trade union
121
Ibid at 14. 122
Ibid. 123
In 1951 the ILO set up the Committee on Freedom of Association (“the Committee”) for the purpose of examining
complaints about violations of freedom of association, whether or not the country concerned had ratified the relevant
conventions. Complaints may be brought against a member state by employers' and workers' organisations. The decisions
of the Committee are captured in ILO Compilation of Decisions of the Committee on Freedom of Association (6th
ed,
2018). 124
Ibid at para 332.
45
rights, since the State may legitimately take measures to ensure that the
constitutions and rules of trade unions are drawn up in accordance with the
law.”125
Accordingly, to protect the right of unions’ “to draw up their
constitutions and rules in full freedom, national legislation should only lay
down formal requirements”. That is what the LRA does. It dictates form, not
content.
132. The only limit is that the formalities do not constitute a practical prohibition on
operation.126
That applies equally to regimes like the LRA which do not require
registration, but confer benefits – the right to seek organisational rights – on
unions that do register. The LRA clearly meets that test.
133. Again, nothing in the work of the Committee suggests – let alone requires – that
workers have a right to join unions contrary to that union’s constitution. And
nothing suggests that employers cannot resist the imposition of statutorily
created rights if the union has violated its own constitution in order to acquire
that right.
134. Indeed, the most relevant statement holds that the state – in this context the
CCMA – “should, in all cases, have the power to proceed to an objective
verification of any claim by a union that it represents the majority of the
workers in an undertaking”.127
The effect of NUMSA’s approach is to deny not
only the employer, but also the CCMA the ability to question whether,
125
Ibid at para 564. 126
Ibid at para 419. 127
Compilation para 1366.
46
objectively, the union sufficiently represents employees in the workplace.
135. NUMSA cites this Court’s judgment in Bader Bop, which held that ILO
jurisprudence entailed that “freedom of association is ordinarily interpreted to
afford unions the right to recruit members and to represent those members at
least in individual workplace grievances; and, secondly, the principle that
unions should have the right to strike to enforce collective bargaining
demands.”128
This Court recently endorsed that holding in POPCRU.129
Quite
so. The LAC has not interfered with those rights. Under MacDonald’s
Transport and Bidvest employers cannot question membership in those
contexts.
136. But neither Bader Bop nor the ILO grant union’s an entitlement to demand
organisational rights based on members who do not qualify for membership in
terms of the union’s constitution.
COMPARATIVE LAW
137. Comparative law is not particularly useful in this area as each country has a
unique statutory framework. However, as NUMSA has sought to call
comparative law in aid, we briefly address four cases.
138. First, NUMSA relies on a decision of the Nigerian Industrial Court in Nestoil
128
Bader Bop (n 103) at para 34, quoted in Applicant’s Written Submissions at para 49. 129
Police and Prisons Civil Rights Union v South African Correctional Services Workers' Union and Others [2018]
ZACC 24; [2018] 11 BLLR 1035 (CC); 2018 (11) BCLR 1411 (CC); (2018) 39 ILJ 2646 (CC); 2019 (1) SA 73 (CC) at
para 90 (“Any statutory provision that prevents a trade union from bargaining on behalf of its members or forbidding it
from representing them in disciplinary and grievance proceedings would limit rights in the Bill of Rights. Forcing
workers who belong to one trade union to be represented by a rival union at disciplinary hearings seriously undermines
their right to freedom of association described earlier.”)
47
Plc v National Union of Petroleum and Natural Gas Workers.130
It occurred in a
very different statutory framework. In Nigeria, each industry has a single union
to represent it. Once a union is recognized in that industry, all junior staff would
automatically be considered members of that union unless they opt out, and all
senior staff would not be considered members unless they opt in. As the Court
put it: “registration is deemed, recognition automatic and deduction of check-
off dues compulsory, being based on mere eligibility to be a member of the
union in question.”131
That is why the Court held that a rival union would have
standing.132
139. However, the Nigerian Court’s conclusion that an employer cannot question
whether a union operates within a particular scope does not seem to follow from
its premises. It rightly holds that an “employer has no right or interest in asking
an employee to either join a particular union or not to join a union”,133
and that
“no employer is permitted to interfere, no matter how minutely it may be, in the
internal running and management of a trade union”.134
But that does not mean
an employer is powerless when a union acts unlawfully. Insisting that a union
complies with its constitution – or with its statutorily defined scope – if it wants
to invoke statutory power does not interfere with its internal arrangements, and
does not force an employee to join one union and not another; it simply upholds
130
Suit No: NIC/LA/08/2010. 131
Ibid at 27 132
Ibid. 133
Ibid. 134
Ibid at 28.
48
the rule of law.
140. Second, the Supreme Court of Canada addressed precisely the same issue in
Alberta Board of Industrial Relations et al. v. Stedelbauer Chevrolet
Oldsmobile Limited.135
A statutory board recognized a union as the “bargaining
agent” for an employer – the equivalent of statutory rights under the LRA. The
employer objected on the grounds that its employees fell outside the
constitutional scope of that union. In a statutory framework far closer to the
LRA than Nigeria’s, the Supreme Court adopted the same approach as the LAC.
It held that the Board had been wrong to certify the union when the employees
could not join the union in terms of the union constitution.136
141. Third, so too the Industrial Court of Botswana. In CASAWU v Turnstar
Holdings Limited137
it upheld an employer’s objection to recognizing a union
because its employees fell outside the union’s scope. As the Court put it: “The
[employer] is involved in property investment which is not one of the industries
the [union] is concerned with in terms of Article 4 of its constitution.”138
142. Fourth, the issue in Botswana Railways v Botswana Railways Train Crew
Union139
was slightly different. It concerned the meaning of s 48(1) of the Trade
Unions and Employers’ Organizations Act which read: “If a trade union
represents at least one third of the employees of an employer, that trade union
135
[1969] SCR 137. 136
Ibid at 144-5. 137
[2017] All Bots 80 (IC) 138
Ibid at para 9. 139
2010 All Bots 44 (CA).
49
may apply for recognition under Section 32 of the Trade Disputes Act”.
Recognition is the equivalent of organisational rights. The union argued that,
read in context, this referred to one third of the employees “in the same trade”.
The employer argued that it referred to one third of all employees.
143. The Court of Appeal agreed with the employer. But the important point for the
purpose of this case is its treatment of the union’s reliance on the same
constitutional rights and ILO conventions as NUMSA. In particular, it argued
that the employer’s failure to recognize it violated the right to free association
because it forced its members “to join a union which the [employer] has chosen
to recognize and not one which they want to join.”140
The Court of Appeal was
unpersuaded. “There is nothing in [the right to free association]”, the Court
held, “which … confers on every person in Botswana the rights and duties
which come with recognition in terms of section 48 of the Act. [The right] is not
concerned with the bargaining rights and duties of employers and trade unions
in the field of labour relations.”141
It also dismissed reliance on the right to join
a trade union for the same reason – it was not concerned with the grant of
organisational rights.142
On the ILO Conventions, the Court of Appeal again
held that they had nothing to do with the grant of organisational rights.143
140
Ibid at para 39. 141
Ibid at para 42. 142
Ibid at para 44. 143
Ibid at para 49.
50
VIII CONCLUSION
144. NUMSA is a union for metalworkers and workers in other specified industries.
It is not a union for workers in the paper and packaging industry. That is not a
result of any “interference” by Lufil. That is the choice of NUMSA’s members,
expressed through their constitution. Unless and until NUMSA amends its
constitution, it cannot use the power of the state to claim organisational rights in
Lufil. To hold otherwise would be to endorse illegality and undermine
constitutional rights.
145. On costs: The LAC granted costs precisely because both parties sought costs.
In those circumstances, it was fair for the LAC to grant costs,144
and there is no
basis to interfere with its discretion.145
Despite relying on Zungu to avoid costs
in the LAC, NUMSA continues to seek costs in this Court. Lufil does the same.
146. The application for leave to appeal should be dismissed. Alternatively, if it is
granted, the appeal should be dismissed. In either case, Lufil is entitled to its
costs, including the costs of two counsel.
ALEC FREUND SC
MICHAEL BISHOP
144
Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1; (2018) 39 ILJ 523 (CC); [2018] 4
BLLR 323 (CC); 2018 (6) BCLR 686 (CC) at para 24. 145
See, for example, Limpopo Legal Solutions and Another v Eskom Holdings Soc Limited [2017] ZACC 34; 2017 (12)
BCLR 1497 (CC) at para 20.