TRADE UNIONS REPRESENTING EMPLOYEES IN WORKPLACE DISPUTES
- EOHCB National
- Jun 3
- 3 min read
Union representation plays a crucial role in ensuring fairness and protecting workers' rights during disciplinary hearings in South Africa. The Labour Relations Act (LRA) of 1995 provides a framework for workplace discipline, including the right of employees to be assisted/represented by a trade union representative or a fellow employee during hearings
In terms of Section 200(1) of the LRA a registered trade union or a registered employers' organisation is entitled to be a party to any proceedings if one or more of its members is a party to those proceedings.
Proof that the Union is a registered Union:
An employer may request proof from the person requesting to represent an employee during a hearing. The Union should provide a certificate of registration from the Department of Employment and Labour (DoEL) as proof that they are a registered Trade Union.
A list of Registered Trade Unions is also available on the DoEL's website here:
Likewise, a list of Registered Employers' Organisations is available on the DoEL's website here:
Proof that the Employee is a Union member:
Generally speaking in our industry, employer’s will be aware if an employee is a member of UASA The Union because the Union fees will be deducted from the employee’s payslip, however an employee may be a member of a different Union which they are paying directly, in which case the employer may request reasonable proof that the employee is a member of that particular union.
Proof that the Union is acting within their scope:
Section 4(1)(b) of the LRA states that even though every employee has the right to join a trade union, employee’s may only do so subject to the trade union’s Constitution. The employer may therefore also request a copy of the Unions Constitution in order to determine the Unions scope and legal standing in the industry
Case Law
The principle that a voluntary association such as NUMSA is bound by its constitution and has no power to act beyond it is referred to in National Union of Metalworkers of South Africa v Lufil Packaging (2020) 41 ILJ 1846 (CC) (“later referred to as Lufil”),
The Constitutional Courts’s (CC) ruling that a trade union must act within the bounds of its registered constitution clarifies that freedom of association is not unlimited where a trade union has chosen to circumscribe its scope of operation in its own constitution.
The CC in AFGRI Animal Feeds (A Division of PhilAfrica Foods (Pty) Ltd v National Union of Metalworkers of SA and Others (2024) 45 ILJ 1937 (CC), also handed down a recent judgment regarding the legal standing of trade unions to represent employees in disputes. The CC made reference to the provisions of section 4(1)(b) of the LRA, which provides that every employee has the right to join a trade union "subject to its constitution", which constitution would then govern the relationship between the union and its members and to which the union would be bound.
The CC made further reference to the Lufil decision, in which it held that "NUMSA is precluded from concluding membership agreements with workers who fall outside its scope". Based on the scope of NUMSA’s constitution, the CC held that NUMSA had no authority to represent the dismissed employees (who did not work in metal and related industries) and, inevitably, had no legal standing in the Labour Court proceedings. However, the dismissed employees could continue with the proceedings in their own names.
