Section 23 of the Constitution of South Africa guarantees the right to fair labour practices for all employees and states that all employees have the right to form and join a trade union. In most cases, employees join trade unions in order to get assistance with bargaining with their employers and to get representation whenever they face disciplinary issues. However, in recent years there have been debates in our courts regarding the right of trade unions to represent employees that fall outside the scope of their constitutions. A trade union’s constitution defines the sector in which that particular trade union operates and the type of employees that may join that trade union.

It was firmly established in the case of NUMSA v Lufil Packaging & Others that a trade union is bound by its own constitution, and it has no powers beyond the four corners of that document. In this case, the Constitutional Court had to decide whether NUMSA could obtain organisational rights from Lufil, whose employees fell outside NUMSA’s defined scope in terms of its constitution. The Constitutional Court held that a trade union is bound by the categories of membership set out in its scope. Therefore, NUMSA was precluded from concluding membership agreements with employees that fell outside the scope of its constitution.

Pursuant to the Lufil Packaging case, the issue of representation by trade unions was again up for debate in the Labour Appeal Court case of NUMSA & Others v AGRI Animal Feeds (Pty) Ltd. In this case, NUMSA appealed the decision of the Labour Court which had found that NUMSA lacked locus standi to refer the dispute and to represent employees in their unfair dismissal claim before the Labour Court because the employees were employed in a sector that fell outside the scope of NUMSA’s constitution. The LAC referred to the Lufil Packaging case and held that there was a difference between the exercise by a trade union of organisational rights on the one hand and the representation of an employee by a trade union in an unfair dismissal dispute on the other hand. In a scenario where the employee in question was employed in a sector that fell outside of the registered scope of the trade union, the LAC held that the trade union could only to represent the employee in an unfair dismissal or unfair labour practice dispute. In other words, such a trade union would not be entitled to collectively bargain with the employer on behalf of that employee.

The LAC concluded that the Lufil Packaging judgment did not concern itself with NUMSA’s suitability to represent its employees in unfair dismissal or unfair labour practice disputes. Rather, it was concerned with the role of a trade union’s constitution relating to collective bargaining. The LAC judgment was clearly meant to advance section 23 of the Constitution by providing effective access to justice and redress to the employee.

Nevertheless, the LAC judgment was short-lived as it was taken on appeal to the Constitutional Court by AGRI Animal Feeds. The Constitutional Court had the opportunity to clarify whether its judgment in the case of Lufil Packaging only meant that trade unions could not bargain outside the scope of their constitution, as it had been interpreted by the LAC in NUMSA & Others v AGRI Animal Feeds.

The confusion that came with the LAC judgment was that a trade union would be entitled to represent employees in unfair dismissal and unfair labour practice disputes but could not exercise organisational rights on their behalf. Strangely, an employee could be a member of a trade union for one purpose, but not for another.

On 21 June 2024, the Constitutional Court delivered its judgment re-affirming its findings in the Lufil Packaging case that a trade union is bound by its constitution and has no powers beyond those conferred by its constitution. The Constitutional Court held that there was no ground for drawing a distinction between a trade union’s representation of employees when enforcing organisational rights and representation in an unfair dismissal dispute - Lufil Packaging precluded the trade union from concluding membership agreements with workers who fall outside its scope.

The debate has now been settled by the Constitutional Court and there is no room for uncertainty. A trade union is bound by its constitution and can only recruit employees who are covered by its constitution. Any attempt by trade unions to register employees who fall outside its registered scope will be invalid. This does not interfere with employees’ right to be represented or to associate themselves with a trade union. The Constitutional Court judgment in AGRI Animal Feeds (Pty) Ltd v NUMSA & Others simply means that employees have the right to join and be represented by any trade union whose registered scope permits them to be members.