“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 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 Consitutional Court accordingly held that NUMSA was not entitled to organisational rights as the employer’s business sector fell outside of their constitution.
In your situation, it does appear as if the union may not have a right to obtain organisational rights in your business. Consult your labour professional for assistance in assessing the situation and how to correctly address the union in this regard.