Page 91 - Q&A
P. 91

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.






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