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grounds of its con­sti­tu­tional scope. It could not have been the in­ten­tion of the leg­is­la­ture to un­duly re­strict the right to rep­re­sen­ta­tion by a union to the ex­tent that it is up to a third party to deny a worker that right, based on the trade union’s con­sti­tu­tion.

How­ever, this state­ment can­not be di­vorced from the facts and le­gal ques­tion in the Mabote judg­ment.

Briefly, the case con­cerned the is­sue of whether or not an em­ployee is en­ti­tled to be rep­re­sented at ar­bi­tra­tion by a trade union of which such em­ployee is a mem­ber, if the em­ployee’s ser­vices to the em­ployer do not fall within the scope of the union’s con­sti­tu­tion. In this case an em­ployee re­ferred an un­fair dis­missal dis­pute to con­cil­i­a­tion and later to the Com­mis­sion for Con­cil­i­a­tion, Me­di­a­tion and Ar­bi­tra­tion (CCMA). The Na­tional Union of Minework­ers (NUM), which had been ex­er­cis­ing or­gan­i­sa­tional rights in the work­place of the em­ployer, rep­re­sented the em­ployee at the CCMA.

The em­ployer took is­sue, ar­gu­ing the scope of NUM’s con­sti­tu­tion did not pro­vide for the busi­ness of the em­ployer and the em­ployee there­fore could not be rep­re­sented by NUM.

Pic­ture: iSTOCK

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