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
