Strike action invariably demonstrates a union’s ability to mobilise its members. However, it often occurs that unions are capable of mobilising more than just their members, particularly when non-members have something to benefit from the industrial action. This situation lends itself to a numbers game, where a striking union prefers large numbers and is less concerned with their loyal standing in relation to those participating non-members.

Section 200 of the Labour Relations Act (LRA) states without any ambiguity that a trade union may act in capacities listed therein in a dispute to which any of its members is a party. Does this suggest that a trade union must prove the employees’ trade union membership before it could embark on a strike?

In Johannesburg Metropolitan Bus Service Soc Limited v DEMAWUSA and Others (J2903/16) [2017] ZALCJHB 1 (6 January 2017), the Labour Court was faced with this question. In this case, DEMAWUSA had intended to embark on a strike on behalf of Metrobus’ employees. Metrobus interdicted the strike on the grounds including, inter alia, that DEMAWUSA lacked locus standi to act on behalf of the employees.

SAMWU did not oppose the interdict but filed an affidavit as the second respondent in this matter confirming that on the date of the intended strike, the employees were its members as it was still deducting trade union subscription fees from their remuneration. It was contended by SAMWU that the employees should be precluded from the strike action until DEMAWUSA had demonstrated their membership.

In an attempt to prove that the employees were its members, DEMAWUSA relied on the membership application forms submitted by the employees together with resignation forms terminating their membership with SAMWU. On this point, DEMAWUSA contended that SAMWU’s constitution provides that an employees’ membership terminates where such employee joins another trade union.

The Labour Court had to decide whether DEMAWUSA had proved the membership of the employees, which is necessary for it to have the requisite authority to act on their behalf. The Court found that DEMAWUSA’s reliance on SAMWUs constitution did not prove the termination of the employees’ membership with SAMWU, as employees were still paying their membership subscription fees. The court further found that the application forms could not be relied upon. In this regard, absent proof of DEMAWUSA’s membership the Labour Court found it lacked the authority to act.

Although the court did not expressly state that the deduction of union subscription fees constitutes sufficient proof of membership, it is clear that this is an important factor in determining membership.

This judgment makes it clear that a trade union cannot embark on a strike on behalf of employees where such employees are not its members unless in solidarity action. Although the facts of this case are specific, the principle may be applicable in many instances where an employer is faced with a strike action especially where there is more than one trade union in the workplace. However, where the employer is aware that the union has a membership, other grounds to interdict a strike must be considered.

Written by Fiona Leppan and Bheki Nhlapho, Cliffe Dekker Hofmeyr