Page 91 - Q&A

A trade union’s constitution vital for
organisational rights at your workplace

April 2020
“I own a large paper and packaging business. A trade union official from a
union registered in the mining industry approached me seeking organisational
rights in my business. I am reluctant to grant this request as their constitution
does not even make provision for our industry. Do I have an obligation to provide
such rights and can I reject such a request?”
Our Constitutional Court recently had cause to consider a similar situation to
yours where trade union NUMSA tried to obtain organisational rights in terms of
the Labour Relations Act 66 of 1995 (“LRA”) from a business whose employees
fell outside NUMSA’s mandate set out in its constitution.
The dispute raised key constitutional issues which include the right to fair labour
practices, the right to freedom of association, and how section 4(1)(b) of the
LRA, which advances these rights, should be interpreted.

Organisational rights are conferred on a registered trade union by an
employer. These rights include but are not limited to the union’s right to access
an employer’s workplace to recruit or communicate with members, etc. A
union wishing to exercise organisational rights must satisfy two conditions:
firstly, the union must be registered and secondly, the union must be
sufficiently representative.
NUMSA argued that if it were prohibited from reaching employees falling outside Labour
of its scope as defined in its constitution, this would amount to a limitation of the
right to freedom of association and the right to fair labour practices.
In an appeal from the Labour Appeal Court, the Constitutional Court found
that the constitution of a union must outline the nature, scope and powers of
the union. A union’s constitution, together with applicable rules and regulations,
collectively constitute the agreement which is entered into by its member.

Unions therefore only have those powers that are conferred on them by their
constitution and cannot create a class of members outside of the provisions
of their constitution. The constitution of the union serves an important purpose
for employers, as they are informed of the different industries within which
unions operate. To allow unions to operate outside their constitutions at their
discretion would go against core constitutional values such as accountability,
transparency and openness. The Constitutional Court accordingly held that
NUMSA was not entitled to organisational rights as the employer’s business
sector fell outside of their constitution.

84