Concourt gives Numsa a smack for not staying in its lane

The Constitutional Court has refused to hear one of the country’s biggest trade unions on why it should be allowed to represent workers in industries falling outside of its normal scope.

Acting Justice Margie Victor this morning dismissed the National Union of Metalworkers of South Africa’s (Numsa’s) application for leave to appeal a Labour Appeal Court judgment overturning an award made by the Commission for Conciliation, Mediation and Arbitration (CCMA) against Lufil Packaging.

The union had approached the CCMA in 2015, after Lufil refused to deduct union fees for union members employed by the paper and packaging company.

Lufil’s stance was that its operations did not fall within the scope of Numsa’s constitution – which makes reference to “the metal industry” – and that, as a result, Numsa was not entitled to organise members employed by Lufil, and had in fact violated its own constitution by admitting these employees as members in the first place.

The CCMA did not agree but its award – in favour of Numsa – was last year reviewed and set aside by the Labour Appeal Court.

“Numsa had to show that it was sufficiently representative. The employees on which it relied in alleging it was sufficiently representative could not be and thus were not, in law, members of Numsa, as they did not fall within the scope of the union in terms of Numsa’s constitution,” the court said at the time.

“As such, Numsa was not sufficiently representative of the employees at the workplace [Lufil] and therefore was not entitled to any organisational rights. The commissioner erred in not coming to that conclusion and committed a material error of law, which resulted in an unreasonable decision.”

Acting Justice Victor said that Numsa’s constitution was clear in its terms.

“On its own self-imposed limit, Numsa is precluded from concluding membership agreements with workers who fall outside of its scope,” she said.

“The essential approach in this case is not to police compliance with its internal provisions, but once it interfaces with third parties, its conduct is circumscribed by its constitution and has wide-ranging public consequence.”

Numsa had in its application argued that the Labour Appeal Court “ought to have found that concerns regarding a union’s membership requirements are between the union and its members and that a third-party employer has no right to interfere with that relationship”.

But acting Justice Victor did not agree.

“Lufil cannot be said to interfere with Numsa’s internal working by holding it accountable to a document which Numsa drafted,” she said.

“When Numsa wished to admit [Lufil’s] employees as members, it ought to have amended its constitution.”

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