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Article 30/2025

The purpose of this article is to highlight some of the principles underlying the legal position that the admission of trade union members outside such trade union’s scope is ultra vires and invalid.

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The principles extracted from National Union of Metalworkers of South Africa v Lufil Packaging (2020) 31 SALLR 138 (CC) (Lufil) and Afgri Animal Feeds v National Union of Metalworkers of South Africa (2024) 35 SALLR 169 (CC) (Afgri) are as follows:

  • in terms of s4(1)(b) of the LRA, every employee has the right to join a trade union, subject to its constitution
  • a trade union’s registered scope is defined in its constitution
  • its constitution, together with its rules and regulations, establish a contract between the individual members who are bound in a voluntary association
  • a trade union cannot operate outside its registered scope
  • any act that deviates from, or is contrary to, a trade union’s constitution is thus ultra vires and null and void
  • Lufil specifically dealt with the scenario that a trade union may not admit as members employees not covered by its constitution, for the purposes of exercising organisational rights
  • Afgri specifically dealt with the scenario that a trade union may not represent employees who are not permitted to be members of such trade union in terms of its constitution – bringing into focus s161(1)(c), s200(1)(b) and s200(1)(c) of the LRA
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?