Legal Representation in Labour Disputes: Trade Unions bound by their own Constitutions

On 21 June 2024, judgement in the matter of AGFRI Animal Feeds v National Union of Metalworkers South Africa and Others (CCT188/22) was handed down by the Constitutional Court. The second to fourteenth respondents in this matter were former employees of AFGRI, who had been dismissed for misconduct for participating in an unprotected strike, after AFGRI denied NUMSA organisational rights. Following the employees’ dismissals for misconduct, NUMSA initially referred the matter to the CCMA, where the dispute remained unresolved, after which it was referred to the Labour Court by NUMSA.

AFGRI argued that NUMSA could not represent the employees in the Labour Court because they were not eligible for membership, since membership of NUMSA was not open to employees employed in the animal feeds industry. The Labour Court sided with AFGRI, but on appeal the Labour Appeal Court ruled that NUMSA had the necessary standing to represent the employees in unfair dismissal disputes, despite of the fact that the employees were not employed within NUMSA’s scope of registration. This was in line with a previous judgment handed down by the Labour Appeal Court in MacDonald’s Transport Upington (Pty) Ltd v AMCU (2016) 37 ILJ 2593, where a distinction was drawn between a trade union’s exercise of organisational rights on the one hand, and its representation of employees in an unfair dismissal dispute on the other.

In other words, before the AFGRI judgement, trade unions were entitled to represent employees in unfair dismissal disputes, even if the employees were employed in industries falling outside of the unions’ registered scope of operation

However, on 21 June 2024 the Constitutional Court overturned the Labour Appeal Court’s decision and confirmed that NUMSA did not have legal standing to represent the dismissed employees in the unfair dismissal dispute, since they were employed in an industry outside of NUMSA’s registered scope of operation. The Constitutional Court reaffirmed that unions are bound by their own constitutions, upholding the appeal and setting aside the Labour Appeal Court’s decision.

This judgment brings much-needed legal certainty, not only regarding the question of whether trade unions are entitled to represent employees outside their scope of registration in labour disputes, but also regarding whether unions are, in the first place, entitled to admit employees outside their scope of registration – the answer to both questions being negative.

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