About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2020
>>
[2020] ZALAC 20
|
|
Municipal and Allied Trade Union of South Africa (MATUSA) v Central Karoo District Municipality and Others (CA6/2019) [2020] ZALAC 20; (2020) 41 (ILJ) 1918 (LAC); [2020] 9 BLLR 896 (LAC) (28 May 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA6/2019
In
the matter between:
MUNICIPAL
AND ALLIED TRADE UNION OF
SOUTH
AFRICA
(MATUSA)
Appellant
and
CENTRAL
KAROO DISTRICT MUNICIPALITY
&
OTHERS
Respondents
Heard:
05 May 2020
Delivered:
28 May 2020
Summary:
Agency shop agreement----interpretation -----whether in light of s
21(8C) of the LRA agency shop agreement may be interpreted
to exempt
minority union members from paying agency shop agreement
fees---agency fees deriving from collective agreement and union
membership fees diriving from employees’ will both serving
different purpose----s 21(8(C) permitting commissioner to grant
minority union organisational rights ---s 21(8C) cannot be read down
to mean that in granting organisational rights commissioner
having
the power to override agency fees in terms of s 25.---Agency fees
deductible from employees identified in the collective
agreement
consonant with the Constitution and ILO recommendations. Appeal
dismissed.
Coram:
Phatshoane ADJP, Davis JA and Murphy AJA
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MURPHY
AJA
[1]
The appellant, the Municipal and Allied Trade Union of South Africa
(“MATUSA”),
appeals against the judgment of the Labour
Court (Tlhotlhalemaje J) holding that an agency shop agreement is not
unlawful or invalid
on account of employees having to pay an agency
fee to a majority trade union in addition to a subscription fee to
the minority
trade union of which they are members.
Background
[2]
The seventh respondent, the Independent Municipal and Allied Trade
Union (“IMATU”),
the eighth respondent, the South African
Municipal Workers Union (“SAMWU”), and the sixth
respondent, the South African
Local Government Association, (“SALGA”)
are parties to the South African Local Government Bargaining Council
(“SALGBC”)
which is the registered bargaining council in
respect of local government throughout the Republic, covering all 257
local municipalities.
SAMWU represents 56% of employees and IMATU
36%. The rest of the employees are either non-union members or are
members of minority
unions such as MATUSA. In August 2015, SAMWU,
IMATU and SALGA concluded a collective agreement which granted
bargaining, organisational
and other rights to the unions. Clause 11
of the collective agreement set a threshold of representativeness (as
contemplated in
section 18 of the Labour Relations Act
[1]
(“the LRA”)) required in respect of one or more of the
organisational rights referred to in Part A of Chapter III of
the LRA
at 15% of the total number of employees in the registered scope of
the SALGBC.
[3]
In September 2015, SAMWU, IMATU and SALGA concluded an agency shop
agreement in terms
of section 25 of the LRA, which was renewed in
2018, authorising the levying of a fee equivalent to 1% of all
employees’
salaries but not exceeding R75 for non-members of
SAMWU and IMATU. MATUSA has been granted organisational rights at
various municipalities,
including the right in terms of section 13 of
the LRA to deduct membership subscriptions from the wages of
employees who are its
members (“stop-order rights”). The
first to fifth respondents (various municipalities) maintain that
they are obliged
in terms of the agency shop agreement and section 25
of the LRA to deduct the agency fee payable to SAMWU and IMATU in
addition
to the subscription fee payable to MATUSA. Some
municipalities do not deduct both the subscription fee and the agency
fee from
MATUSA members.
[4]
In the Labour Court, MATUSA claimed that it is unlawful for an
employer to give effect
to an agency shop agreement concluded under
section 25 of the LRA by deducting an agency fee from the wages of
members of a minority
union to whom the Commission for Conciliation,
Mediation and Arbitration (“the CCMA”) has extended
stop-order rights
in terms of section 13 of the LRA. It relied on
section 21(8C) of the LRA, which permits the CCMA to countermand the
threshold
requirements in a collective agreement for the grant of
organisational rights, to argue that the CCMA’s decision to
extend
stop order rights to MATUSA overrides the agency shop
agreement. It maintains that from the date of the decision of the
CCMA to
extend stop-order rights, the employer’s obligation to
deduct an agency fee under the agency shop agreement was replaced
with an obligation to deduct only subscription fees in favour of
MATUSA. IMATU, the only respondent that opposes the appeal, contended
that the employer is not merely entitled but in fact obliged to
deduct agency fees from MATUSA’s members, by virtue of a
valid
agency shop agreement lawfully concluded under section 25 of the LRA.
[5]
The Labour Court dismissed MATUSA’s claim, holding that, in the
absence of a
constitutional challenge to the provisions of section 23
(governing the legal effect of collective agreements in general) and
section
25 of the LRA, there was no basis to find that the agency
shop agreement was unlawful or invalid on account of MATUSA members
having
to pay both an agency fee and a union subscription or
membership fee.
The
relevant statutory provisions
[6]
The appeal accordingly requires consideration of the scope and
application of three
sections of the LRA; namely, sections 13, 25 and
21(8C).
[7]
Section 13(1) of the LRA provides that an employee who is a member of
a representative
trade union may authorise the employer in writing to
deduct “subscriptions or levies” payable to that trade
union from
the employee’s wages. The right is one of the
organisational rights afforded to trade unions in terms of Part A of
Chapter
III of the LRA. It is not necessary for the trade union to
represent a majority of employees to acquire stop-order rights. They
may be granted to a minority union that is sufficiently
representative.
[2]
If the
employer and trade union seeking this organisational right cannot
agree as to the manner in which the trade union will exercise
the
right, or if there is a dispute about whether the trade union is
sufficiently representative, either party may refer the dispute
to
the CCMA for conciliation and arbitration.
[3]
[8]
Section 25 of the LRA governs collective agreements incorporating a
union security
arrangement in the form of an agency shop agreement.
This provision falls within Part B of Chapter III of the LRA dealing
with
collective agreements. Section 25(1) of the LRA provides that a
representative trade union (in this section meaning a majority
union
[4]
) and an employer or
employers’ organisation may conclude a collective agreement, to
be known as an agency shop agreement,
requiring the employer to
deduct an agreed agency fee from the wages of employees identified in
the agreement who are not members
of the trade union but are eligible
for membership thereof. Agency shop agreements are a lesser form of
union security arrangement,
and unlike closed shop agreements, do not
compel employees to belong to the trade union recognised by the
employer as the bargaining
agent of the employees. Agency shop
agreements require the so-called free riders among the employees (the
non-members of the bargaining
agent) who benefit from the efforts of
the bargaining agent to pay an agency fee for the fruits of
collective bargaining. Disputes
about the interpretation and
application of an agency shop may be referred to the CCMA for
resolution by conciliation and arbitration.
[5]
[9]
Section 21(8C) of the LRA is one of various amendments introduced
into the LRA in
2014. In relevant part, it reads:
‘
[A]
commissioner may in an arbitration conducted in terms of subsection
(7) grant the rights referred to in sections 12, 13 or 15
to a
registered trade union, or two or more registered trade unions acting
jointly, that does not meet thresholds of representativeness
established by a collective agreement in terms of section 18, if –(a)
all parties to the collective agreement have been given
an
opportunity to participate in the arbitration proceedings; and (b)
the trade union, or trade unions acting jointly, represent
a
significant interest, or a substantial number of employees, in the
workplace.’
[10]
Section 18 of the LRA permits the so-called threshold agreements in
relation to organisational rights
and provides
inter alia
that
an employer and a majority trade union may conclude a collective
agreement establishing a threshold of representativeness
required in
respect of one or more of the organisational rights referred to in
sections 12 (access), 13 (stop-orders) and 15 (leave
for trade union
activities) of the LRA. Section 21(8C) of the LRA permits a CCMA
commissioner in a dispute regarding these organisational
rights to
override a threshold agreement between an employer and a majority
trade union in order to grant the relevant organisational
rights to a
minority union that represents a significant interest or a
substantial number of employees in the workplace.
The
appellant’s argument on appeal
[11]
MATUSA repeats the arguments it made before the Labour Court and
contends that the amendment to section
21 of the LRA introducing
subsection 21(8C) in 2014 heralded a new era under which certain
organisational rights, including the
right to stop-orders, could be
granted to minority trade unions that did not meet the threshold for
representativeness which constrained
minority unions in their quest
to organise at the workplace.
The
extension of stop-order rights to MATUSA, it argues, should be
allowed to limit the effect of the agency shop agreement.
Stop-order rights are
fundamental for the operations and further growth of an emerging
minority union in order to fund its activities
and to properly
organise. To provide for the extension of stop-order rights to a
sufficiently representative minority union, where
its members are
compelled to pay an agency fee to the majority unions, MATUSA
submits, results in the benefit of stop-order rights
being more
illusory than real. Members of MATUSA cannot afford to pay two
“subscriptions” to two different unions,
one of which is
foisted upon them by a pre-existing collective agreement between the
majority unions and the employer’s organisation.
[
12]
MATUSA places reliance upon the fundamental rights in the Bill of
Rights in Chapter 2 of the Constitution
of the Republic of South
Africa, 1996 (Constitution). It does not argue that the relevant
provisions of the LRA are unconstitutional.
Rather, in terms of
section 39(2) of the Constitution, it seeks an interpretation of them
(a reading down) which will ensure consistency
with the Bill of
Rights. Section 39(2) of the Constitution requires that when
interpreting any legislation a court must promote
the spirit, purport
and objects of the Bill of Rights. The effect of the agency shop
agreement, MATUSA submits, does not serve
to enhance the
constitutional values in question nor the purpose of the amendments
to the LRA.
[13
The relevant provisions of the Bill of Rights upon which MATUSA
relies are sections 18 and 23.
Section 18 of the Constitution
provides that everyone has the right to freedom of association. The
constitutional right to freedom
of association is the touchstone for
other fundamental labour rights. The rights of trade unions to
organise and bargain are entrenched
by section 23 of the
Constitution. It provides that every worker has the right to form and
join a trade union; to participate in
the activities and programmes
of a trade union; and to strike.
[6]
It
further
provides that every trade union has the right to organise;
[7]
that every trade union, employers' organisation and employer has the
right to engage in collective bargaining;
[8]
and that national legislation may be enacted to regulate collective
bargaining and may recognise union security arrangements (closed
shop
and agency shop agreements) contained in collective agreements.
[9]
[14]
To the extent that national legislation (the LRA) regulating
collective bargaining and recognising
union security arrangements may
limit a right in the Bill of Rights, the limitation must comply with
section 36(1) of the Constitution,
which requires any limitation of a
constitutional right to be reasonable and justifiable in an open and
democratic society based
on human dignity, equality and freedom. The
limitation should not invade rights any further than necessary in
order to achieve
its purpose and there must be proportionality
between any restriction and the benefits to be achieved.
[
15]
Section 3 of the LRA likewise requires courts applying the LRA to
interpret its provisions to give effect
to its primary objects; in
compliance with the Constitution; and in compliance with the public
international law obligations of
the Republic.
T
he purpose of the
LRA is to advance economic development, social justice, labour peace
and the democratisation of the workplace
by fulfilling the primary
objects of the Act, which include giving effect to and regulating the
fundamental rights conferred by
section 23 of the Constitution and
giving effect to obligations incurred by the Republic as a member
state of the International
Labour Organisation (ILO) and the
promotion of orderly collective bargaining at sectoral level.
[16]
MATUSA’s
essential argument is that
on
a contextual and purposive interpretation of section 21(8C) of the
LRA, the CCMA’s decision to extend stop order rights
to MATUSA
overrides the agency shop agreement and the employer was restricted
to deducting only the subscriptions fees due to MATUSA.
The assertion
is essentially that section 25 of the LRA must be read down in terms
of section 39(2) of the Constitution in order
to promote the spirit,
purport and objects of MATUSA’s right to organise and
collectively bargain, and so as not to apply
any existing agency
agreement to employees in the position of its members. In support of
this contention, it avers in addition
that the ILO’s Freedom of
Association and Right to Organise Convention 87 of 1948 (‘the
Convention’), as interpreted
by its Committee on Freedom of
Association, establish that the deduction of both an agency and a
membership fee is impermissible.
[10]
[17]
A purposive interpretation consistent with the Bill of Rights and our
public international law obligations,
MATUSA believes, is one that
has the outcome that only one union “subscription” is
payable by its members, being the
one they have authorised be paid to
their union, and their union alone, as provided for in section 13 of
the LRA, in consequence
of the extension of those rights to MATUSA by
section 21(8C) of the LRA.
To
hold otherwise, it submits, would be anomalous and defeating of the
purpose of amending the LRA to include section 21(8C).
[18]
At the inception of
any trade union, the focus is on the recruitment of employees and
organising them into a functioning establishment.
It is only after
growing into a position of strength in numbers that the union will be
able to contest first for fuller recognition
in the workplace and
ultimately to engage in collective bargaining on behalf of its
members on the grounds that it is now sufficiently
representative of
them. Therefore, thresholds set by majority unions and the employer,
MATUSA submits, are not desirable when it
comes to the granting of
minimal organisational rights.
In
order to give proper recognition to the extension of stop-order
rights, once these rights have been granted to a minority union,
those rights must override another unions’ pre–existing
rights to “subscriptions” from non–unionised
members under an earlier agency shop agreement.
Evaluation
[19]
MATUSA’s argument is not sustainable for the various reasons
put forward by counsel for IMATU,
Mr. Freund SC, during his argument
before us.
[20]
Since MATUSA does not challenge the constitutionality of the relevant
provisions of the LRA, the appeal
turns on a proper interpretation of
sections 25 and 21(8C) of the LRA. T
he
inevitable point of departure is the language of the provisions
concerned.
Section
25(1) of the LRA reads:
‘
A
representative trade union and an employer or employers’
organisation may conclude a collective agreement, to be known as
an
agency shop agreement, requiring the employer to deduct an agreed
agency fee from the wages of employees identified in the agreement
who are not members of the trade union but are eligible for
membership thereof.’
[21]
The evident intention of the section is to empower a majority union
or unions to conclude an agency
shop agreement with the employer. The
employer is then “required” and thus obliged to deduct
the agreed agency fee
from the wages of employees identified in the
agreement, including in this case from MATUSA’s members, who
are not members
of the majority trade union(s) but are eligible for
membership thereof. The meaning and effect of section 25 of the LRA,
therefore,
is clear and unambiguous: IMATU and SAMWU had the legal
right to conclude an agency shop agreement with the employer, which
agreement
imposes a legal obligation on the employer to deduct agency
fees from MATUSA members who do not belong to IMATU and SAMWU. The
provision in section 25 of the LRA for any agency fee to be deducted
“from the wages of employees identified in the agreement
who
are not members of the trade union but are eligible for membership
thereof” cannot be interpreted textually, at least
without
doing violence to the language, to exclude employees who belong to
and pay subscriptions to another union.
[22]
Moreover, MATUSA’s argument conflates union membership or
“subscription” fees and
agency fees. An agency fee is due
by virtue of statute. Section 25 of the LRA permits the conclusion of
an agency shop agreement,
the effect of which is to impose a legal
obligation on the identified employees in terms of section 23 of the
LRA. It is a fee
for work done to advance workers’ interests
through collective bargaining. It must be deducted by the employer
from the worker’s
remuneration if an agency shop agreement
meeting the requirements of section 25 of the LRA has been concluded.
A union membership
fee, on the other hand, is due in terms of an
agreement between the trade union and the member. It is a fee for the
services offered
by the trade union to its members. In theory, it may
be paid to the trade union in different ways including by way of
authorising
the employer to deduct it from remuneration.
[23]
Thus, the source of the employee’s obligation to pay a
membership fee is different from the source
of the obligation to pay
an agency fee. Both deductions are lawful in terms of section 34 of
the Basic Conditions of Employment
Act
[11]
- a subscription fee because the employee authorises the deduction;
and an agency fee because a collective agreement requires or
permits
it. The respective obligations in respect of union membership fees
and agency fees thus arise in different ways, are for
different
purposes, and are differently regulated. Union membership fees being
distinct from agency fees, there is no double payment,
or any
question of MATUSA members being forced to pay double “subscriptions”
to IMATU and SAMWU.
[24]
As mentioned earlier, the purpose of section 25 of the LRA and an
agency shop agreement is to address
the problem of free riders,
employees who choose not to join the trade union with collective
bargaining rights, but who benefit
from the fruits of the collective
bargain struck by that trade union. In
National
Manufactured Fibres Employers Association v Bikwani (Bikwani
)
[12]
the Labour Court set out
the rationale for the agency shop agreement as follows:
‘
It
takes time, effort and money for a union to strike good deals with
the employer of its members. Time and effort - because proper
training and preparation on the part of the union's negotiators are
necessary if the negotiators are to engage in effective bargaining.
Money - because all of those things cost money. Where the benefits of
the deals secured through the efforts of the representative
trade
union in collective bargaining are passed on to other employees who
are not members of the representative trade union, such
employees
should make a contribution towards the costs which the representative
trade union incurs in connection with its collective
bargaining work.
If they do not pay that is unfair because members of the
representative trade union pay for those costs. An agency
shop
agreement seeks to make them pay without compelling them to join the
representative trade union.
The
fact that such workers may be members of another union in the
workplace to which they pay union dues does not turn them into
paying
riders. They remain free riders. … because they make no
contribution towards the collective bargaining costs of the
representative union and yet they receive and enjoy the benefits of
that union's efforts in the same way as that union's members
who foot
the bill thereof.’
[25]
The Labour Court in
Bikwani
accordingly held that agency shop
agreements bind members of minority unions, even if this means they
must pay both the membership
fee of their own union, and the agency
fee. To hold that an agency fee is only payable by employees who
belong to no union, the
Labour Court reasoned, would be inconsistent
with the purpose of the agency shop provision because an agency shop
agreement is
not concerned with whether an employee is a member of a
minority union but with whether the employees contribute towards the
collective
bargaining costs of the representative union from efforts
of which they materially benefit.
[26]
As Mr Freund SC correctly submitted, the purpose underlying section
25 of the LRA will not be advanced
by reading in a proviso to the
effect that the agency fee will not be payable by an employee who
belongs to another union which
has stop order rights. On the
contrary: the purpose of funding the collective bargaining costs of
the union or unions which actually
do the collective bargaining would
be undermined.
[27]
MATUSA’s argument that section 21(8C) of the LRA, enacted after
the decision in
Bikwani
, must be interpreted to permit
overriding an agency shop collective agreement is without merit. It
is abundantly clear from the
wording of section 21(8C) of the LRA
that it empowers a commissioner only to override a section 18
threshold agreement setting
a threshold for minority unions seeking
the organisational rights in sections 12, 13 and 15 of the LRA. It
gives a commissioner
no power at all to do anything in relation to a
pre-existing agency shop agreement.
[28]
Section 21(8C) was enacted in response to the decision of the Labour
Court in
Western
Cape Workers Association v Gansbaai Marine
[13]
which held that a section 18 threshold agreement prevailed over a
CCMA’s decision granting stop-order rights to a trade union
whose membership did not reach the agreed threshold of
representativeness. The amendment reverses this position. Section
21(8C)
permits a CCMA commissioner to override a section 18 threshold
agreement. As a consequence, a commissioner may now grant section
12,
13 or 15 rights to trade unions who do not meet the threshold
established in a section 18 agreement. The amendment expressly
alters
the effect of section 18 of LRA but has no effect on section 25 of
the LRA. The plain language of the provision confines
it to
authorising the granting of access, stop-order and time-off rights to
unions which are precluded from eligibility for those
specific rights
by reason of a section 18 threshold. Had the legislature intended to
empower commissioners arbitrating organisational
rights disputes
equally to override any existing agency shop agreement it would have
done so expressly. Prior to the amendment
of section 21 of the LRA,
the provisions of section 25 of the LRA were indisputably clear in
scope and effect. Had the legislature
when amending section 21 of the
LRA intended to amend the unambiguous scope of section 25 of the LRA
it would have introduced a
consequential amendment to effectuate that
result. It did not do so.
[29]
The argument that the Constitution requires section 25 to be read
down so as to exempt from an agency
fee minority union members who
pay subscription fees to their union is also not legally tenable.
Section 23(6) of the Constitution
expressly authorises national
legislation to recognise union security arrangements contained in
collective agreements. To the extent
that section 25 of the LRA may
limit a constitutional right, it must comply with section 36(1) of
the Constitution. As stated earlier,
there is no challenge to the
constitutionality of section 25 of the LRA or the agency shop
agreement. But the arrangement here
appears to meet the standard of
reasonable limitation - at least
prima facie
. Adequate
safeguards ensure the proportionality of the agreement. Agency shop
agreements, in general, may only be concluded between
the employer
and majority unions and do not compel union membership but only the
payment of a fee. The agency fee, which may be
no higher than the
majority unions’ subscription, must be paid into a separate
account administered by the union and may
not be used for
party-political purposes or any purpose other than one advancing the
socio-economic interests of the employees.
Any limitation of
constitutional rights is therefore narrowly tailored in a manner
which advances the legitimate object sought
to be advanced (orderly
collective bargaining with majority unions), without undue prejudice
to employees obliged to pay the agency
fee. The agency shop agreement
advances the legitimate legislative policy of majoritarianism in
collective bargaining as the preferred
option for orderly collective
bargaining at sectoral level. Allowing a minority union stop-order
rights permits a measure of pluralism
and healthy competition. That
provision, however, was not intended to dilute the value of the
agency shop or to exempt members
of minority unions from paying the
bargaining agent for the benefits they receive from collective
bargaining, as described in
Bikwani
.
[30]
Section 25 of the LRA is consistent with the Constitution, and it
cannot be said that a majoritarian
agency shop agreement does not
promote the spirit or objects of the constitutional rights to
organise and collective bargaining.
There is accordingly no reason to
strain the plain language of the section and to read it down to give
it the limited meaning proposed
by MATUSA. Hence, the Labour Court
did not err in holding that the legal position stated in
Bikwani
continues to apply.
[31]
MATUSA maintains that paragraphs 695 and 696 of the ILO’s
Freedom of Association Digest
[14]
are authority for the proposition that it is contrary to the ILO’s
Freedom of Association and Right to Organise Convention
87 of 1948
for their members to be obliged to pay the agency fee to the majority
union as well paying their membership fees to
it. Paragraph 695 of
the Digest provide that workers
should
have the possibility of opting for deductions from their wages under
the check-off system to be paid to trade union organizations
of their
choice, even if they are not the most representative. Paragraph 696
notes that
the
Committee has requested “a government” to take the
necessary steps to amend the legislation for this purpose.
[32]
The case referred to in Paragraph 696 of the Digest concerned a
complaint against Argentina.
[15]
The
relevant statute only permitted stop-order rights equivalent to
section 13 of the LRA to the “most representative”
union,
unlike in South Africa where the LRA permits stop-order rights to be
granted to all sufficiently representative unions in
a workplace or
sector. A complaint by a union which was not the most representative
union led to a recommendation by the Committee
that deductions under
the check-off system should be paid to trade union organisations of
workers’ choice “even if
they are not the most
representative”.
Thus,
the case was concerned with the right of sufficiently representative
unions to gain stop-order rights. It had nothing at all
to do with an
agency shop agreement or whether payment of an agency fee could be
required to be paid by an employee belonging to
a union with
stop-order rights.
[33]
On the contrary, union security arrangements are in conformity with
ILO principles and standards on
freedom of association.
[16]
The ILO Committee of Experts has ruled that union security clauses
may be permitted, but should not be imposed, by law.
[17]
Union security clauses should be agreed freely,
[18]
and agency fees levied on non-members benefiting from collective
agreements should only take effect through collective agreements.
[19]
Section 25 of the LRA is in compliance with these principles and
standards.
[34]
The Labour Court accordingly did not err in refusing to declare
unlawful that which the LRA, the Constitution
and international law
clearly permit. The appeal should accordingly be dismissed. This is a
case in which the costs legitimately
should follow the result. The
matter was complex and of importance thus warranting the employment
of senior counsel.
[35]
In the result, the appeal is dismissed with costs, including the
costs of two counsel.
_______________________
JR
Murphy
Acting
Judge of Appeal
I
agree
_____________________
M
Phatshoane
Acting
Deputy Judge President
I
agree
____________________
DM
Davis
Judge
of Appeal
APPEARANCES:
FOR
THE APPELLANT:
Adv R Stelzner
SC and Adv A Montzinger
Instructed
by Hannes Pretorius, Bock and Bryant
FOR
THE RESPONDENTS: Adv
A Freund SC and Adv S Harvey
Instructed
by F Du Plessis Attorneys
[1]
Act
66 of 1995.
[2]
Section
11 of the LRA
provides
that a representative trade union means a registered trade union, or
two or more registered trade unions acting jointly,
that are
sufficiently representative of the employees employed by the
employer in a workplace.
[3]
Section
21(4)-(7) of the LRA.
[4]
For
the purposes of section 25 of the LRA, a representative trade union
is defined to mean a registered trade union, or two or
more
registered trade unions acting jointly, whose members are a majority
of the employees employed by the employer in a workplace
or by
members of an employers’ organisation in the relevant sector
and area – section 25(2) of the LRA.
[5]
Section
24 of the LRA.
[6]
Section
23(2) of the Constitution.
[7]
Section
23(4) of the Constitution.
[8]
Section
23(5) of the Constitution.
[9]
Section
23(5) and (6) of the Constitution.
[10]
MATUSA’s
submissions regarding international law are discussed more fully
later in this judgment.
[11]
Act
75 of 1997.
[12]
(1999)
20 ILJ 2637 (LC) paras 20-21.
[13]
Unreported
judgment of the Labour Court per Stelzner AJ case no. J190/99 - date
of judgment 19 August 1999.
[14]
Compilation of Decisions of the Committee on Freedom of Association
6
th
Ed 2018.
[15]
Paragraph
696 cites as authority for its conclusion paragraph 477 of the 2006
edition of the Digest which in turn, cites the 304
th
Report, Case No. 1832, paragraph 38.
[16]
ILO
Digest
at par 554.
[17]
ILO
Digest
at par 551.
[18]
ILO
Digest
at par 555.
[19]
ILO
Digest
at par 700.