As a general rule, the Labour Relations Act, No 66 of 1995 (LRA), cannot be used by employers as a tool to quell strife internally within trade unions. There are, however, circumstances where an employer may, as an external party, have an interest in these internal conflicts, especially where this hampers bargaining between the employer and employees or if this results in its employees being effectively unrepresented.

The Labour Court in City of Johannesburg v SA Municipal Workers Union & Others (2017) 38 ILJ 1342 (LAC) dealt with a situation where a trade union, the South African Municipal Workers Union (SAMWU), had elected provincial office-bearers for the Kwa-Zulu Natal province. This election, however, did not comply with the requirements for a valid election, as no provincial executive committee meetings were called as required by SAMWU’s Constitution. The national office-bearers continued to “disband” the newly appointed provincial members. Following the “disbandment”, another meeting was called on a provincial level to appoint new union leadership for the province.

The “disbanded” members did not recognise their removal claiming they were not properly disbanded. These members continued to perform functions as duly elected provincial office bearers. SAMWU continued to suspend these members and some were even expelled.

Two factions of leadership began to form with both factions denying the authority and validity of the other faction. Both factions claimed to be elected in terms of SAMWU’s Constitution and both continued to elect new national office bearers to represent each faction. This divide resulted in the City of Johannesburg, as an employer of employees represented by SAMWU, seeking a declaratory order to determine which faction is duly authorised to deal with the employer on a day to day basis.

The court had to consider whether the employer had locus standi to bring such a matter before the court. The court referred to the case of SA Airways SOC Ltd & Another v National Transport Movement & Others (2016) 37 ILJ 2128 (LC), which proclaimed that ordinarily an applicant in such instances would not have locus standi to bring such an application to interfere with the internal affairs of a trade union.

Likewise, in this case the court found that even an applicant with the best intentions could not result in the applicant acquiring locus standi. The employer was also warned that in such instances it should not prefer one faction to the other and should not confront the court for an order declaring that the selected faction is duly authorised to act. The court ultimately pronounced that the applicant will not have locus standi in this instance and would not have been able to decide the matter, but for the parties agreeing to it. The parties managed to reach an agreement that both factions would present evidence before the court to justify their authority to act on behalf of SAMWU. This agreement allowed for the matter to proceed to court.

In analysing the implications of failing to comply with the trade union’s Constitution, the court referred to SA Transport & Allied Workers Union v Zondo (2015) 36 ILJ 2348 (LC), which averred that the union’s Constitution is a contract entered into by mutual agreement to which all members subscribe and is not subservient to any resolutions adopted by bodies of the trade union. Any adopted resolution which is in conflict with the provisions of the Constitution are ultra vires and of no force and effect. It held that any purported meeting or resolution passed by the disbanded members will be of no force and effect as the disbanded members were themselves not appointed in terms of the Constitution, thus all subsequent actions and resolutions passed by them would be null and void and of no effect. Consequently, the court made a declaratory order declaring the faction of the newly elected union members to be the lawful and duly authorised members.

What is clear from this case is that even when an employer is impacted negatively, in having to deal with different factions of the same trade union, in its bargaining relationship, it will have no legal recourse through the mechanisms of the LRA to stabilise the relationship and ensure its employees receive effective representation. It is the trade union itself who should initiate legal proceedings to resolve any internal disputes.

Employers, despite having an interest in the effective running of the trade union, should tread carefully not to enter litigation where it, as a third party, does not have locus standi.