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Which trade unions are allowed to represent employees at the CCMA?

Mark Meyerowitz
ARTICLES

According to s200(2) of the Labour Relations Act, No 66 of 1995 (LRA), an employee may be represented by an official from his trade union during proceedings at the CCMA. 

However, what if that employee isn’t a valid member of his union?


An interesting situation arose in the case of NUM obo Mabote v Kalahari Country Club (unreported judgment C1010/12 dated 21 June 2013). In this case:

 

 

 

The court held that:

  • The trade union must decide if it wants to accept an application for membership and if that member will be covered by its constitution.
  • It couldn’t have been the legislation’s intention to restrict the right to representation by a trade union unduly to the extent that it’s up to a third party.

The NUM constitution makes it clear that eligibility for membership is subject to the branch committee’s approval which has jurisdiction. It’s up to the union and its branch committee to deal with any challenge to membership. The employer can’t interfere with the trade union’s internal decisions about who it allows to become a member.

The court held that:

  • The right to be represented by a trade union is unaffected by a defect in that union's internal administration. Accordingly, a union may represent its members in legal proceedings, as defined in the LRA, even if he doesn’t work within the union's registered scope.
  • While the court didn’t go so far as to say that employers can’t query the validly of actions taken by trade unions in contravention of their own constitutions, it did send a clear signal that employees' rights under the LRA will not be interfered with lightly on the basis of non-compliance with a trade union's constitution.

Mark Meyerowitz is an associate in the employment law practice at Cliffe Dekker Hofmeyr. He joined the firm in 2010 as a candidate attorney and was promoted to associate in 2012. He specialises in employment law.
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