by Mark Meyerowitz
According to s200(2) of the Labour Relations Act, No 66 of 1995 (LRA), an employee may be represented by an official from his trade union during proceedings at the CCMA. However, what if that employee isn’t a valid member of his union?
An interesting situation arose in the case of NUM obo Mabote v Kalahari Country Club (unreported judgment C1010/12 dated 21 June 2013). In this case:
- The employee, a Mr Mabote, was a member of the National Union of Mineworkers (NUM). The NUM constitution states that membership is open to all workers who are employed in the mining, energy, construction and allied industries. However, it just so happened that Mabote was employed by the Kalahari Country Club (KCC), which is part of the hospitality industry and not the mining industry.
- When a dispute was referred to the CCMA, KCC argued that Mabote was not entitled to be represented by a NUM official because Mabote was not a valid member of NUM and the union was not entitled to organise in the hospitality sector.
- The CCMA commissioner agreed with the submissions made by KCC and held that NUM had no locus standi to represent Mabote.
- However, when the matter went on review to the Labour Court, Judge Steenkamp reached a different conclusion. The learned judge didn’t deal with the question of if trade unions may organise outside of where they usually operate. Instead, he found that:
– The essence of the dispute had to do with the right to representation as stipulated in the LRA, and
– By doing so, the judge drew a distinction between the organisation on the one hand and representation on the other.
- When s100(2) of the LRA states that an employee may be represented by a trade union, it makes no reference to where the trade union usually operates. So on a plain reading of this section, an employee may be represented by any trade union so long as the employee is a valid member of that union.
- However, s4(1)(b) of the LRA states that even though every employee has the right to join a trade union, which union they may join is subject to that particular body’s constitution. Consequently, it would seem that because Mabote didn’t work in the mining sector, he was not a valid member of NUM and the union couldn’t represent him.
- However, the judge held these provisions of the LRA shouldn’t be interpreted so restrictively.
The court held that:
- The trade union must decide if it wants to accept an application for membership and if that member will be covered by its constitution.
- It couldn’t have been the legislation’s intention to restrict the right to representation by a trade union unduly to the extent that it’s up to a third party.
The NUM constitution makes it clear that eligibility for membership is subject to the branch committee’s approval which has jurisdiction. It’s up to the union and its branch committee to deal with any challenge to membership. The employer can’t interfere with the trade union’s internal decisions about who it allows to become a member.
The court held that:
- The right to be represented by a trade union is unaffected by a defect in that union’s internal administration. Accordingly, a union may represent its members in legal proceedings, as defined in the LRA, even if he doesn’t work within the union’s registered scope.
- While the court didn’t go so far as to say that employers can’t query the validly of actions taken by trade unions in contravention of their own constitutions, it did send a clear signal that employees’ rights under the LRA will not be interfered with lightly on the basis of non-compliance with a trade union’s constitution.
This article first appeared on HR Pulse.