Written by: Wadzanai Kaziboni-Tizora
18 JULY 2024
Are there limitations to legal representation by Trade Unions in South Africa?
In the recent constitutional case of AFGRI Animal Feeds (A Division of PhilAfrica Foods (Pty) Limited) v National Union of Metalworkers South Africa and Others (CCT 188/22) [2024] ZACC 13, the issue regarding trade unions representing non-members in litigation disputes with an employer or former employer was debated. In this case, the trade union had represented employees in a legal dispute regarding unfair dismissals. Still, the question of the representation by the trade union was yet to be settled in law. This matter was brought on appeal to the Constitutional Court as the Labour Appeal Court had previously decided in favour of the trade union.
What are the Employees’ Rights Regarding Legal Representation?
The legislative position of employees’ rights regarding representation when litigating against an employer, as outlined in the Labour Relations Act, 66 of 1995, stipulates the following:
- an employee that is a party to proceedings in the Labour Court may either appear in person or be represented by a legal practitioner, a co-employee or a member, an office-bearer or an official of that party’s registered trade union (Section 161); and
- A registered trade union may act on behalf of its members or in the interest of any of its members in any dispute to which such member is a party (Section 200).
Should an employee be a member of a trade union, they are well within their rights to be represented by the relevant trade union in a labour dispute as prescribed by law.
What are the Trade Unions’ Responsibilities and Role Regarding Representing Employees?
Section 95 of the Labour Relations Act sets out the requirements for registering trade unions or employer’s organisations, with the key element being the requirement for a constitution. The adopted constitution prescribes the qualifications and the admission to the respective trade union membership.
The trade union is legally required to be a registered entity to have a proper legal standing when representing its members and referring matters to the Labour Court.
What Did the Labour Courts Decide Regarding AFGRI Animal Feeds v National Union of Metalworkers South Africa and Others?
The labour court was tasked with considering the legal standing of the trade union involved and its ability to represent employees in litigation disputes in the matter of AFGRI Animal Feeds (A Division of PhilAfrica Foods (Pty) Limited) v National Union of Metalworkers South Africa and Others (CCT 188/22) [2024] ZACC 13.
In this case, a trade union represented employees in an unfair dismissal claim. The dismissed employees were unqualified and ineligible to be trade union members as their skills and crafts fell outside the scope of the trade union’s constitution. To be legible and to be able to suit the criteria for membership, one had to be a worker in the metal and related industry. The employees in this dispute were members of the animal feed industry, which, upon further analysis, was found to be worlds apart from the metal industry.
This unfair dismissal claim was referred to the Labour Court for adjudication, which court ruled against the trade union as the employees were invalid members of the trade union. The trade union then appealed the Labour Court’s decision and brought it to the Labour Appeal Court’s attention. The appeals court overturned the Labour Court’s decision by ruling that the trade union could not participate in the collective bargaining of members who fell out of the criteria for the trade union’s membership. The trade union could, however, represent such employees in unfair dismissal disputes with due consideration being given to the principle of fairness and the right to representation.
What Did the Constitutional Court decide regarding AFGRI Animal Feeds v National Union of Metalworkers South Africa and Others?
Section 23 of the Constitution gives effect to the Labour Relations Act, which is an empowering provision. The Act stipulates that every worker has a right to fair labour practices and the right to form or be a member of a trade union.
When this matter was brought further on appeal to the Constitutional Court, the court decided that the trade union was bound by the provisions laid out in the union’s constitution as per Section 95 of the Labour Relations Act. Consequently, the court decided that the trade union cannot accept members who operate outside the scope of their constitution’s ambit, which confines membership to workers in the metal and related industries only. In addition, the Constitutional Court of South Africa highlighted the issue of trade unions only representing their members and abiding by their respective constitutions.
The court further stated that the trade union had no authority to represent the dismissed employees in the Labour Court because they were precluded from becoming members of the union under their area of expertise and industry. The trade union therefore had no legal standing in the Labour Court proceedings.
The ultra vires doctrine was invoked by the Constitutional Court when it came to deciding on the matter. The doctrine applies when an entity (in this case, a trade union) acts outside the legal powers conferred upon it, particularly by its constitution. The court found that any trade union that acts beyond its scope and contrary to its constitution will be seen as acting beyond its powers, and such action will be deemed as being null and void.
In addition to the above, it was recorded that trade unions are bound by their union constitutions, and in being bound, the core constitutional principles regarding accountability, transparency, and openness are reiterated and valued.
What does the AFGRI Animal Feeds v National Union of Metalworkers South Africa and Others judgment mean for trade unions going forward?
This judgment is a reminder to trade unions that they are limited by the prescribed scope of operation and representation as per their constitution. They simply cannot ‘have their cake and eat it too’ when representing employees in arbitration or litigation in the Labour Courts. The Labour Relations Act and Section 23 of the Constitution guarantees the right to fair labour practices. However, these rights must be exercised through trade unions that are legally permitted to represent specific workers in line with their industry or craft.
The AFGRI Animal Feeds judgment reinforces that trade unions must operate strictly within the scope of their constitutions when representing members. This ruling highlights the legal importance of adhering to accountability, transparency, and compliance with their registered constitutions.
Need Professional Legal Representation with South African labour legislation? Contact Our Experienced Attorneys Today For A Consultation
Trade unions cannot extend their representation to employees outside their defined membership criteria, ensuring clarity and fairness in labour disputes. Both employees and employers must be diligent in ensuring proper representation to avoid legal challenges, unnecessary costs, and delays. If in doubt, seek professional legal advice from Burger Huyser Attorneys to navigate labour law complexities and ensure compliance with South African labour legislation.
Contact one of Burger Huyser Attorneys’ expert labour law attorneys for assistance in navigating to ensure that your rights are fully protected in line with South African labour law.
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
