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[2019] ZALAC 39
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Lufil Packaging (Isithebe) (A division of Bidvest Paperplus (Pty) Ltd) v Commission for Conciliation, Mediation and Arbitration and Others (DA8/2018) [2019] ZALAC 39; (2019) 40 ILJ 2306 (LAC); [2019] 11 BLLR 1212 (LAC) (13 June 2019)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA8/2018
In the matter between:
LUFIL PACKAGING
(ISITHEBE)
(A
division of Bidvest Paperplus (Pty) Ltd)
Appellant
and
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
LEON PILLAY
N.
O.
Second
Respondent
NATIONAL UNION OF
METAL
WORKERS OF SOUTH
AFRICA (KZN)
Third
Respondent
Heard:
15 May 2019
Delivered:
13 June 2019
Summary: Dispute
concerning organisational rights – union seeking to exercise
its rights by requesting employer to deduct
membership fees from its
members- employer disputing union organisational rights on the basis
that it falls outside the registered
scope of union and that
employees not eligible under the union’s constitution to be
members for the purposes of assessing
a union’s
representativeness in terms of Chapter III of the LRA. Employer
further argues that because the claimed members
are precluded by the
union’s constitution from becoming its members, any purported
admission of such employees as members
is
ultra vires
the
union’s constitution and invalid. Union contending that that as
a registered trade union, representative of the majority
of the
workers, it has legal standing to claim organisational rights.
Held that
A trade union cannot
create a class of membership outside the provisions of its
constitution, and if they purport to do so they
act in excess of
their powers and the act has no validity. A purported decision by a
union to admit a member who is not eligible
under its constitution to
become a member is not a mere internal decision which is immune from
attack by an affected employer.
Such a decision is
ultra vires
and invalid and, as such, susceptible to challenge by the employer
from whom organisational rights – based on the membership
concerned – is sought. Arbitration award and Labour Court set
aside and appeal upheld with costs.
Coram: Musi JA, Murphy
and Savage AJJA
JUDGMENT
MURPHY AJA
[1]
This is an appeal against the judgment of the Labour Court (Gush J)
dismissing two
consolidated review applications brought by the
appellant (“Lufil”) to set aside a preliminary ruling and
an award
granting the third respondent (“NUMSA”)
organisational rights. The appeal is with the leave of the Labour
Court.
The facts
[2]
The material facts are common cause, and the matter turns on the
correct interpretation
of the applicable law.
[3]
Lufil manufactures printed and plain paper bags and associated paper
or paper-derivative-based
packaging products.
[4]
On 27 January 2015, NUMSA wrote to Lufil asking it to provide stop
orders for the
deduction of union fees for its (alleged) members who
were employees. Lufil responded to this letter on 3 February 2015,
stating
inter alia
:
‘
Subsequent
to receiving your request and in considering your request, the
Company sought legal opinion as it did not believe that
your
constitution allowed you to organise within the operations of our
business, as it fell outside the scope of your Union. Our
counsel
confirmed our understanding and we wish to respond accordingly as
follows:
1. The core business of
Lufil Packaging falls within the definition of the Printing and
Packaging Sector and it does not form part
of your union’s
revised scope that was approved by the department of labour on 12
December 2014.
2. For purpose of rights
to recruit members and organise within a particular workplace, we
would like to refer you to your Union’s
Constitution as with
specific reference to Annexure B (as amended on 12 December 2014)
which sets out the Scope of the Union. Taking
into account clarity
about the industry to which we belong as stated above and that it
does not fall within the scope of the Union
we wish to point out that
in recruiting members from our operations, you acted
ultra vires
your constitution.
3. In perusing your
constitution and its appendices you will have to agree with us that
you do not have the right to organise within
our industry.
In view of the above, the
Company thus acts within its rights not to recognise NUMSA and we
therefore will not be in a position
to action your request to
implement union stop order deductions in our workplace.’
[5]
Chapter 2(2) of NUMSA’s constitution provides:
‘
All
workers who are or were working in the metal and related industries
are eligible for membership of the Union subject to the
discretion of
the relevant Shop Stewards Council …’
[6]
Annexure B of NUMSA’s constitution deals with “the scope
of the Union”
and provides that “the Union shall be open
to all workers employed in any of the following industries”.
The annexure
lists 21 different industries including: the Iron,
Steel, Engineering and Metallurgical Industry; the Electrical
Engineering Industry;
the Plastics Industry; the Automobile
Manufacturing Industry; the Motor Industry; and various others. The
list does not include
the packaging industry. Lufil falls under the
ambit of the Statutory Council for the Printing, Newspaper and
Packaging Industries
(“PNPI”). NUMSA is not a member
union of the PNPI and does not participate as such in the PNPI. NUMSA
conceded in an
affidavit in the initial proceedings before the first
respondent, the Commission for Conciliation Mediation and Arbitration
(CCMA),
that the nature of Lufil’s operations are not specified
in the scope of the Union. It argued, however, that such did not
preclude NUMSA from organising or representing its members who fall
outside its specified scope.
[7]
NUMSA referred an organisational rights dispute to the CCMA. Section
21(1) of the
Labour Relations Act
[1]
(“the LRA”) provides that any registered trade union may
notify an employer in writing that it seeks to exercise one
or more
of the rights conferred by Part A of Chapter III of the LRA in a
workplace. The rights in Part A include: rights of trade
unions
access to the workplace; deduction of trade union subscriptions or
levies; the election of shop stewards; leave for trade
union
activities; and the disclosure of information. Where the parties are
unable to conclude a collective agreement in respect
of the exercise
of the claimed organisational rights, either party may refer the
dispute to the CCMA in terms of section 21(4)
of the LRA. NUMSA’s
referral to the CCMA was postponed on various occasions, for
different reasons.
[8]
On 13 March 2015, Lufil filed an application, in terms of Rule 31 of
the CCMA rules,
alleging that because the members NUMSA claimed to
have in Lufil’s employ were not eligible under NUMSA’s
constitution
to become members, NUMSA did not have the requisite
locus standi
to refer the dispute to the CCMA (“the
jurisdictional application”). It was agreed by the parties that
the application
would be decided on the papers.
[9]
The second respondent, (“the commissioner”) handed down a
ruling on the
jurisdictional application on 19 June 2015. The
commissioner held that the point raised by the appellant did not go
the CCMA’s
jurisdiction but that there was nonetheless a
preliminary issue whether NUMSA could organise the employees of Lufil
when the activities
and operations of Lufil do not fall within
NUMSA’s registered scope, as stipulated in its constitution.
The commissioner
concluded that a union has standing to seek
organisational rights in workplaces that are not included within the
scope of its constitution
and dismissed the preliminary point. The
CCMA was directed to set the dispute down for arbitration in terms of
section 21(7) of
the LRA. Lufil launched proceedings to review the
ruling on 31 July 2015 and sought to postpone the arbitration. The
application
for a postponement was refused and the arbitration
proceeded.
[10]
A pre-arbitration minute was concluded by the parties in which Lufil
agreed to certain organisational
rights being granted but conditional
upon the outcome of the review of the commissioner’s ruling.
The arbitration hearing
took place on 1 March 2016. The commissioner
found, on the basis of his interim ruling and the fact that NUMSA had
as members approximately
70% of Lufil’s employees, that NUMSA’s
application for organisational rights should be granted.
[11]
The commissioner directed
Lufil to grant
the union access to the canteen hall on 72 hours’ notice to
Lufil and to deduct union fees from members and
pay such dues to
NUMSA with immediate effect. He ordered additionally that NUMSA shall
be entitled to three trade union representatives,
who shall
cumulatively be entitled to six days of paid time off and that NUMSA
was entitled to disclosure of information in terms
of section 16 of
the LRA.
[12]
Lufil filed an application to review this award on 6 May 2016. The
two matters were consolidated
and the hearing of both applications
took place on 23 November 2017. The Labour Court dismissed the
reviews, holding that NUMSA
had 70% of Lufil’s employees as
members and was thus entitled to organisational rights.
The submissions of
Lufil on appeal
[13]
Counsel for Lufil, Mr. Freund SC, submitted that the narrow issue at
the heart of the appeal
is whether, for the purposes of being awarded
organisational rights by the CCMA in terms of Part A of Ch III of the
LRA, a union
can rely on employees who purport to be its members, if
those employees are not eligible to be members of the union in terms
of
its constitution. Lufil submits that a union is bound by its
constitution; and that a union cannot have as members, employees who
fall outside of the eligibility for membership requirements contained
in its constitution.
[14]
All of the organisational rights in Chapter III of the LRA, if the
requisites of entitlement
are met, must be granted by employers to
representative
trade unions.
[2]
Section 11 of
the LRA provides that in Part A of Chapter III, unless otherwise
stated, a representative trade union means a registered
trade union
or two or more registered trade unions acting jointly, “that
are sufficiently representative of the employees
employed by an
employer in a workplace”. However, for the purposes of
obtaining the organisational rights in section 14 of
the LRA (the
election of shop stewards) and section 16 of the LRA (disclosure of
information) “representative trade union”
means a
registered trade union or two or more registered trade unions acting
jointly, “that have as members the majority
of employees
employed by the employer in a workplace”.
[15]
Mr. Freund SC submitted that it is implicit in these provisions that
a union can only be “representative”
of employees
employed by an employer if it has
as
its members
a sufficient number of the employer’s employees. The
representativeness of a union seeking organisational rights is
defined
with reference to the number of “employees employed by
an employer in a workplace” who are members of the union
concerned.
[3]
Persons who are
not eligible under a union’s constitution to be members of that
union are not members of the union, for the
purposes of assessing a
union’s representativeness in terms of Chapter III of the LRA.
[16]
It follows, counsel argued, that an employer is entitled to dispute
whether claimed members are
indeed members. If it is shown that the
persons concerned are precluded by the union’s constitution
from becoming its members,
any purported admission of such employees
as members is
ultra vires
the union’s constitution and
invalid, and as a matter of law they are incapable of becoming
members and the union’s
claim of representativeness must fail.
[17]
In this case, it is common cause that, in order to be eligible to be
a member of NUMSA, an employee
is required by its constitution to
work in an industry which falls within its scope, as defined in its
constitution; and that the
employees in question worked at a
workplace which did not fall within that scope. In purporting to have
as members Lufil employees
who were, in terms of its own
constitution, not entitled to be its members, counsel submitted,
NUMSA acted
ultra vires
its own constitution. These employees
are not members and cannot be counted as such. For this reason, NUMSA
is not entitled in
terms of Chapter III of the LRA to any of the
organisational rights which it sought, as it has no validly admitted
members at Lufil’s
workplace.
[18]
Therefore, it was submitted that both the ruling and the award of the
commissioner were based
on a material error of law and are decisions
to which a reasonable decision-maker could not have come in the
circumstances and
that the Labour Court erred in not setting aside
both the ruling and the award.
NUMSA’s
submissions
[19]
NUMSA contends that as a registered trade union, representative of
the majority of the workers,
it has legal standing to claim
organisational rights. Section 21(1) of the LRA provides that any
registered trade union may notify
an employer in writing that it
seeks to exercise one or more of the rights conferred by Part A of
Chapter III and may refer any
dispute in that regard to the CCMA in
terms of section 21(4) of the LRA. Section 22(1) of the LRA provides
that any party to a
dispute about the interpretation or application
of any provision of Part A may refer the dispute in writing to the
CCMA. Thus NUMSA
had
locus
standi.
It relied in this regard on
NUMSA
obo Mabote v CCMA and Others
[4]
where
Steenkamp J stated:
‘…
however
it cannot be correct that the union lacks
locus
standi
to refer the matter simply
because its constitutional scope does not cover employees in that
sector. At worst it could mean that
if the union decides to refer
this dispute to arbitration once conciliation fails, the union may
fail to prove that it is entitled
to the relief it is seeking.’
[20]
The determination of whether the union is entitled to organisational
rights, according to NUMSA,
requires consideration of both the
Constitution, the supreme law, and NUMSA’s constitution.
Section 23(2)(a) of the Constitution
entrenches the right of workers
to form and join a trade union and section 18 enshrines every
person’s right to freedom of
association. Section 4(1)(b) of
the LRA provides that every employee has the right to join a trade
union and gives effect to the
constitutional right. It, however,
contains the proviso that the right is subject to the constitution of
the trade union.
[21]
Counsel for NUMSA, Mr Pillay SC, submitted that the constitutional
rights must be interpreted
generously to afford the widest ambit of
protection. The LRA and the union’s constitution, in so far as
they impinge on these
rights, must be restrictively interpreted.
Lufil’s interpretation that membership is restricted to those
eligible in terms
of the union’s constitution, Mr Pillay SC
argued, unduly limit’s the employees’ constitutional
rights. The argument
that the proviso to section 4(1)(b) of the LRA
limits the unions to which an employee may apply and permits the
employer to object
to membership of a particular union where the
union’s scope does not cover that particular area of
employment, he said, is
at odds with a rational common sense
interpretation of section 4(1)(b) of the LRA. The section regulates
the relationship between
the union and its members - namely that the
member may join if he/she satisfies requirements under the union’s
constitution.
This allows the union (not the employer) to restrict
members at its behest or for that matter to exclude a particular
member if
the member does not observe the rules of the union’s
constitution. It does not lie for the employer to raise an objection.
The relationship is between union and member. Parties to a contract
are not obliged to impose every letter of that contract.
Evaluation
[22]
An element of confusion was introduced in this matter early on by
Lufil’s challenge to
NUMSA’s
locus standi
. The
commissioner correctly held that the point was more akin to a
preliminary point requiring determination of whether the union
could
organise employees of the employer if the activities and operations
of the employer do not fall within the registered scope
of the union,
as stipulated in its constitution. The subsequent arbitration
proceeded on the common assumption that in terms of
the preliminary
ruling NUMSA was entitled to count as its members all the employees
who had purported to join it, regardless of
the fact that this was
not permitted by NUMSA’s constitution. The Labour Court also
accepted that “the crisp issue
to be decided …. was
whether the LRA entitled the third respondent to represent its
members in an application for organisational
rights and whether it
was entitled to those rights.”
[23]
Lufil correctly concedes that it may have been inaccurate for it
initially to have characterised
the question as being whether NUMSA
had
locus standi
to apply for organisational rights. NUMSA is
allowed to challenge the decision of Lufil denying it organisational
rights as it
clearly has a personal interest in the legality of that
refusal and is a party to a dispute as contemplated in section 21 of
the
LRA. However, in the final analysis standing is not the issue.
The fact that NUMSA has standing enabling it to apply for
organisational
rights and refer a dispute in that regard to the CCMA
does not mean it has an entitlement to those rights in terms of the
legal
requirements of the LRA. The decisive issue throughout, as the
commissioner appreciated in both his ruling and the award, was the
contention that NUMSA could not qualify to be granted the
organisational rights because Lufil employees are ineligible to be
members.
That remains the fundamental question to be determined in
this appeal, which must be decided first and foremost with reference
to the governing provisions of the LRA.
[24]
The right of trade unions to obtain organisational rights is a
legitimate intrusion upon an employer’s
proprietal and
entrepreneurial autonomy. It, accordingly, is circumscribed by
functional legislative requirements ensuring that
it is exercised by
sufficiently representative unions, properly compliant, acting in the
interests of employees in accordance with
the policy imperatives of
orderly collective bargaining at sectoral level.
[5]
[25]
Section 95 of the LRA is concerned with the requirements for the
registration of trade unions
or employer’s organisations.
Section 95(1)(b) provides that a trade union may apply for
registration (and thus obtain the
benefits of registration) if,
inter
alia,
it has adopted a constitution that meets the requirements
of sections 95(5) and 95(6) of the LRA. Section 95(6) provides that
the
constitution of any trade union may not include any provision
that discriminates against any person on the grounds of race and sex.
The provision reflects the legitimate interest of the Registrar in
ensuring compliance with fundamental values in trade union criteria
for membership. Section 95(5) of the LRA is concerned with more
prosaic matters such as membership, rules for meetings,
decision-making,
the election of office bearers and officials, and so
on. Section 95(5)(b) is of particular relevance. It provides that the
constitution
of any trade union or employer’s organisation that
intends to register must prescribe qualifications for and admission
to
membership.
[26]
The Registrar must apply his mind to whether the requirements for
registration have been met.
[6]
He is obliged to register the trade union once satisfied that there
has been compliance.
[7]
If after
affording the applicant trade union the opportunity to remedy any
defect in its application or constitution he concludes
there has not
been compliance, he must refuse registration.
[8]
[27]
One of the most meaningful benefits of registration is the right of a
registered trade union
to obtain organisational rights under Part A
of Chapter III of the LRA. Only a registered trade union may apply
for the exercise
of those rights and for the relief to obtain and
enforce them.
[28]
Section 101 of the LRA regulates amendments by trade unions of their
constitutions. A registered
trade union may resolve to change or
replace its constitution.
[9]
However, to do so effectively it must send the Registrar a copy of
the resolution and a certificate signed by its secretary stating
that
the resolution complies with its constitution.
[10]
The Registrar will only register the amendment if it meets the
requirements for registration under sections 95 and 96 of the
LRA.
[11]
The amendment will
only take effect from the date that the resolution is endorsed by the
Registrar, certifying that the amendment
has been registered.
[12]
[29]
NUMSA’s constitution may be amended only by a vote of
two-thirds of the members of its
National Congress
[13]
- though annexures to the constitution, such as Annexure B, may be
amended by the Central Committee.
[14]
It is common cause that there has been no amendment of the scope of
the union, as stipulated in Chapter 2 or Annexure B of the
Constitution of NUMSA, in order to include the packaging industry
within it.
[30]
Section 4(1)(b) of the LRA provides that every employee has the right
to join a trade union,
subject to its constitution. The obvious
implication of this provision is that the right to join a trade union
will be circumscribed
by the membership eligibility criteria in the
trade union’s constitution as adopted by the trade union’s
relevant decision-making
body and registered by the Registrar.
[31]
The submission of Mr. Pillay SC that section 4(1)(b) of the LRA was
unconstitutional, because
it infringes the fundamental rights in
section 18 and 23(2)(a) of the Constitution, is unsustainable.
Besides the fact that no
constitutional challenge to section 4(1)(b)
of the LRA was pleaded or canvassed adequately in evidence, the
limitation is reasonable
and justifiable. Section 23(5) of the
Constitution provides that national legislation may be enacted to
regulate collective bargaining.
Such legislation, the LRA, has been
enacted. To the extent that the legislation may limit a right in
Chapter 2 of the Constitution,
the Bill of Rights, including the
rights of freedom of association in section 18 and section 23(2)(a)
of the Constitution, the
limitation must comply with section 36(1) of
the Constitution and be reasonable and justifiable in an open and
democratic society
having regard
inter alia
to the nature of
the right, and the nature, purpose and extent of the limitation. The
requirement that eligibility to join a trade
union be determined by
the provisions of its constitution, as adopted by its own
decision-making body and registered by the Registrar,
gives effect to
the legitimate government policy of orderly collective bargaining at
sectoral level. The means of implementation,
involving supervision of
the scope of union activity by the Registrar, are minimally
restrictive and are carefully tailored to
the purpose of achieving
the policy. Section 4(1)(b) of the LRA is accordingly consistent with
the Constitution.
[32]
Trade unions at common law have only those powers and capacities that
are conferred on them by
their constitutions. The LRA requires unions
to determine in their constitutions which employees are eligible to
join them and
by necessary implication precludes them from admitting
as members’ employees who are not eligible to be admitted in
terms
of the trade union’s registered constitution. If it is
shown that the persons concerned are precluded by the union’s
constitution from becoming its members, any purported admission of
such employees as members is
ultra
vires
the union’s constitution and invalid.
[15]
[33]
In
Van
Wyk and Taylor v Dando and Van Wyk Print (Pty) Ltd
[16]
Landman J held correctly that a union acts
ultra
vires
its own constitution when it allows membership of individuals who are
not allowed to be members of that union in terms of the union’s
own constitution. A trade union cannot create a class of membership
outside the provisions of its constitution, and if they purport
to do
so they act in excess of their powers and the act has no
validity.
[17]
A purported
decision by a union to admit a member who is not eligible under its
constitution to become a member is not a mere internal
decision which
is immune from attack by an affected employer. Such a decision is
ultra
vires
and invalid and, as such, susceptible to challenge by the employer
from whom organisational rights – based on the membership
concerned – is sought.
[34]
The
ultra
vires
rule is of both practical and policy value. There is a direct
relationship between the conception of the trade union as a distinct
legal entity and the rule that it may not legally carry out any
activity which is not authorised by the LRA and the powers and
capacities provided in its constitution. The LRA grants trade unions
specific powers and capacities to act within a particular
scope and
does so in furtherance of a contemplated constitutional and policy
framework. The principle of legality requires observance
of that
framework and its purposes may not be arbitrarily dissipated.
[18]
NUMSA is accordingly not permitted in terms of the common law or the
LRA to allow workers to join the union where such workers
are not
eligible for admission in terms of the union’s own
constitution. As such, it is not entitled to any of the
organisational
rights contained in respect of Lufil’s
workplace.
[35]
Mr Freund SC drew an instructive analogy with the administrative law
doctrine of a permissible
“collateral attack” arguing
that a similar principle applies in the present matter. The doctrine
was explained by the
Supreme Court of Appeal in
Oudekraal
Estate (Pty) Ltd v City of Cape Town and others
[19]
as
follows:
‘
But
just as some consequence might be dependent for validity upon the
mere factual existence of the contested administrative act
so there
might be consequences that will depend for their legal force upon the
substantive validity of the act in question. When
construed against
the background of principles underlying the rule of law a statute
will generally not be interpreted to mean that
a subject is compelled
to perform or refrain from performing an act in the absence of a
lawful basis for that compulsion. It is
in those cases – where
the subject is sought to be coerced by a public authority into
compliance with an unlawful administrative
act –that the
subject may be entitled to ignore the unlawful act with impunity and
justify his conduct by raising what has
come to be known as a
‘defensive’ or a ‘collateral’ challenge to
the validity of the administrative act….It
will generally
avail a person to mount a collateral challenge to validity of an
administrative act where he is threatened by a
public authority with
coercive action precisely because the legal force of the coercive
action will most often depend on the legal
validity of the
administrative act in question…..While the legislature might
often, in the interests of certainty, provide
for consequences to
follow merely from the fact of an administrative act,
the
rule of law dictates that the coercive power of the State cannot
generally be used against the subject unless the initiating
act is
legally valid.’
[36]
In applying to the CCMA to be granted organisational rights, NUMSA
sought to invoke the coercive
power of the state. The CCMA cannot
impose upon Lufil its coercive power, in granting NUMSA the
organisational rights it seeks,
if the basis for seeking these rights
(the employees’ purported membership) is not legally valid
(because the union acted
ultra vires
its own constitution in
allowing these employees to be its members).
[37]
The correct legal position, therefore, is that 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. As such,
NUMSA was not sufficiently
representative of the employees at the
workplace 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.
[20]
The Labour Court
erred equally in not setting aside the award on that basis.
[38]
Although the parties agreed not to seek costs in the Labour Court,
both sought the costs of the
appeal.
[39]
The following orders are made:
39.1
The appeal is upheld with costs, including the costs of senior
counsel.
39.2
The order of the Labour Court is set aside and substituted with the
following:
‘
The
arbitration award of the second respondent, under case number KNDB
14987-14 and dated 14 March 2016, in relation to the dispute
between
the third respondent and the applicant is reviewed and set aside.’
_________________
JR Murphy
Acting
Judge of Appeal
I agree
________________
C Musi
Judge
of Appeal
I agree
_______________
K Savage
Acting Judge of Appeal
APPEARANCES:
FOR THE
APPELLANT: Adv
A Freund SC
Instructed by ENSafrica
FOR THE THIRD RESPONDENT:
Adv I Pillay SC
Instructed
by Harkoo Brijlal & Reddy Inc
[1]
Act 66 of 1995.
[2]
Organisational
rights are personal rights of the union and not of the members.
[3]
See
Fergus and Godfrey “
Organising
and Bargaining across Sectors in South Africa: Recent Developments
and Potential Problems
”
(2016) 37 ILJ 2211 at 2220.
[4]
(2013)
34 ILJ 3296 (LC)
[5]
Section 1(d) of the LRA.
[6]
Section
96 of the LRA.
[7]
Section 96(3)(b) and section 96(5) of the LRA.
[8]
Section 96(6) of the LRA.
[9]
Section 101(1) of the LRA.
[10]
Section 101(2) of the LRA.
[11]
Section 101(3)(a) of the LRA.
[12]
Section 101(3)(b) read with section 101(4) of the LRA.
[13]
Chapter 14 read with chapter 6(1)(d) of the Constitution of NUMSA.
[14]
Chapter 6(2)(d)(xiv) of the Constitution of NUMSA.
[15]
Van
Wyk and Taylor v Dando and Van Wyk Print (Pty) Ltd
[1997]
7 BLLR 906
(LC) at 910 F-G;
Grundling
v Beyers and Others
1967 (2) SA 131
(W) at 139H – 140B, 149D-F and 151C.
[16]
[1997]
7 BLLR 906
(LC) at 910.
[17]
Martin
v Scottish TGWU
[1952]
All ER 691
(HL) at 695.
[18]
The
reliance placed by the commissioner on
NUM
obo Mabote and Others
[2013] 10 BLLR 1030
(LC) is misplaced. That case dealt with the
right of an employee to be represented by a trade union
representative during CCMA
proceedings which differs to a union
wishing to operate and organise members at a workplace. Likewise,
the Labour Court in
Bidvest
Food Services (Pty) Ltd v National Union of Mineworkers SA and
others
(2015)
36 ILJ 1292 (LC)
was
also seized with a distinguishable issue. In that case, the question
was whether employees are precluded from engaging in
a strike to
obtain organisational rights for their union at a workplace that
does not fall within the scope of that union’s
constitution.
In essence, the question was whether the strike demand was unlawful.
The Labour Court held that an employee has
the right to strike if he
has followed the relevant procedures in terms of the LRA, whether
that employee belongs to a union
or not.
[19]
[2004]
3 All SA 1
(SCA) para 32 et seq.
[20]
Democratic
Nursing Organisation of SA on behalf of Du Toit & another v
Western Cape Department of Health & Others
(2016) 37
ILJ
1819 (LAC);
Head
of Department of Education v Mofokeng and Others
[2015] 1 BLLR 50
(LAC) at para 33; and
Opperman
v Commission for Conciliation, Mediation & Arbitration and
Others
(2017) 38
ILJ
242 (LC).