NUMSA is one of South Africa’s largest and most well-established unions. It was established to operate in the the metal workers industry, but has since broadened its recruitment activities beyond that industry. What it has not done, however, is to amend its constitutional scope to include industries in which it recruits. This has led to disputes regarding the consequences of NUMSA representation of employees outside its scope as defined by its constitution.
In National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) and Others [2020] 7 BLLR 645 (CC), the Constitutional Court found that NUMSA was not entitled to recruit members from industries falling outside of its constitutional scope, and that if it wished to recruit in other industries, was required to amend its constitution to broaden the scope.
This judgment has led to disputes arising regarding the consequences of NUMSA representation of employees outside its scope. For instance, if NUMSA represented such employees and a judgment was granted in their favour (where the employer did not take the point that NUMSA could not so represent them), would this render the judgment a nullity? And if a settlement agreement was concluded with NUMSA on behalf of employees, would that settlement agreement be rendered a nullity.
This issue came to the fore in the recent and as-yet unreported judgment in Multiquip v NUMSA. In litigation spanning a period of 10 years, the employer party had not raised the point that NUMSA could not represent employees. It approached the Labour Court for an order to “declare as a nullity” (and set aside) the entire proceedings in the matter, namely the referral to the CCMA, the statement of claim; the settlement agreement in terms of which the trial proceedings before this Court were settled; the Court order in terms of which the settlement agreement was made an order of court; and the contempt finding of the Labour Court flowing from the failure by the employer to honour the former court order.
The Labour Court declined to set the proceedings aside on the basis of the NUMSA representation of employees outside its scope. It found that the employer had not made out a case for rescission, that policy considerations in favour of finality weighed against granting the order sought by the employer, and that the employer had validly compromised its rights by concluding a settlement agreement.
A copy of the judgment can be viewed here:
Multiquip v NUMSA
