The rights of all SA workers to choose union representation have been reined in after the Constitutional Court ruled against the National Union of Metalworkers of SA (Numsa), which argued that workers could be represented by unions that normally represent a different sector.
But in attempting to represent workers from the animal feed manufacturing sector, the metalworkers union was acting “beyond the bounds of its [own] constitution”, the court ruled.
Aside from clarifying the limits of workers’ rights, lawyer Imraan Mahomed, from Cliffe Dekker Hofmeyr, who specialises in employment law, said the judgment was “important for employers as a company can now expect only to deal with a union that is active within its sector”.
The court’s finding affects all SA unions and workers, who must operate within the limits clarified by the Constitutional Court.
Numsa became involved in unfair dismissal disputes with Afgri Animal Feeds, an agricultural manufacturer. Afgri refused to grant Numsa workplace organisational rights.
Aggrieved by Afgri’s denial of Numsa, Afgri workers went on a two-day strike in 2017 and several were dismissed. Numsa tried referring an unfair dismissal dispute to the labour court, but this was dismissed by the court after Afgri argued Numsa could not bring the matter. Numsa had no standing to represent these workers, Afgri argued, because the workers were from the animal feed manufacturing sector. Numsa’s constitution reads it represents metalworkers.
The union appealed to the labour appeal court, which ruled in Numsa’s favour. Afgri then appealed to the Constitutional Court.
Writing for a unanimous court, acting Constitutional Court justice Ashton Schippers said “Numsa’s constitution restricts its registered scope to workers in the metal and related industries”. This scope precludes animal feed workers from becoming Numsa members. The union thus had no standing to bring a challenge. The workers’ rights were “not implicated at all” and are free “to join and be represented by” any trade union that deals with their career sector.
Mahomed noted “workers do not have an unfettered right to representation by any trade union”. Instead, they are “limited to being represented by unions that are active within particular sectors”.
He also issued a warning to unions. “There is an obligation on unions to also ensure that they only represent workers in the correct sectors,” he said, “because a union’s failure to do so, which results in the workers’ legal claim being dismissed, may result in a separate negligence claim against the union.”
Though there was merit in Numsa’s claim, if it and other unions wanted to broaden their scope, Mahomed said they would need to “amend the scope of operation in their constitutions”. They would, however, need to be led by their federations.
“There has also been a proliferation of unions over the last two decades [that are] not affiliated to any federation,” he said. The “unions have broad scopes of operation — effectively allowing [them] to organise in any economic sector”.
Due to Friday’s judgment, unions’ scope of operations are now entrenched throughout SA.
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