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[2024] ZALCJHB 120
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South African Transport & Allied Workers Union v Servest Security (Pty) Ltd and Another (J806/21) [2024] ZALCJHB 120; (2024) 45 ILJ 1308 (LC) (14 March 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J806/21
In the matter between:
SOUTH AFRICAN
TRANSPORT & ALLIED
WORKERS UNION
Applicant
And
SERVEST SECURITY (PTY)
LTD – a division of
SERVEST GROUP
First Respondent
KUNGWINI AMALGAMATED
WORKERS
UNION
(KAWU)
Second Respondent
Heard:
6 July 2023
Delivered:
14 March 2024(This judgment was handed down electronically by
circulation to the parties’ legal
representatives by email,
publication on the Labour Court website and release to SAFLII. The
date and time for handing-down is
deemed to be 10h00 on 14 March
2024.)
JUDGMENT
BOTES, AJ
Introduction
[1]
What
are the legal requirements for validity of a closed shop agreement?
Does a contractual provision requiring membership of a
trade union
(as a prerequisite for the validity of the employment contract)
result in a pre-entry closed shop agreement prohibited
in terms of
section 26(3)(c) of the Labour Relations Act (LRA)?
[1]
May an employer deduct agency fees from employees belonging to a
trade union absent a provision in the closed shop agreement
permitting
such deduction? These and other interesting questions
arose during the course of the present dispute.
[2]
Following
an urgent application in 2021, this court (per Tlhotlhalemaje, J)
granted interim relief to the South African Transport
and Allied
Workers Union (SATAWU) to prevent Servest Security from deducting
agency fees from its members in favour of Kungwini
Amalgamated
Workers Union (KAWU), the trade union who is a party to the closed
shop agreement. It interdicted Servest Security
from dismissing
SATAWU members not belonging to KAWU. Such dismissals would have
ensued on the basis that the SATAWU members were
in contravention of
the closed shop agreement which required membership of KAWU as an
employment condition with Servest Security.
[3]
The
parties now return for the determination of Part B of the same
application. SATAWU seeks to have the closed shop agreement declared
invalid, obtain a final interdict against the double deductions, and
refund all such deductions from the wages of its members (from
Servest or from KAWU, whomever received the payments).
[4]
The
validity of the closed shop agreement is thus paramount to the final
adjudication of this dispute.
[5]
For
ease of reference, I repeat the background to the dispute as set out
in Part A of the judgment:
‘
[1] The
applicant, SATAWU is a founding party to the National Bargaining
Council for Private Security Sector
(NBCPSS). It is also the majority
trade union within the private security industry. SATAWU is however a
minority union at the first
respondent (Servest), where the second
respondent (KAWU), enjoys majority representation. Despite all the
three parties being parties
to the NBCPSS, Servest has since August
2020, concluded a
closed shop agreement
with KAWU.
[2] As
a consequence of the conclusion of the closed shop agreement,
SATAWU’s members, who were previously
members of KAWU, find
themselves in an unenviable position, where they have to pay double
subscriptions to both unions. It is as
a result of Servest insisting
on compliance with the closed shop agreement, that SATAWU has
approached this Court on an urgent
basis, seeking an order to
interdict and restrain Servest from
unilaterally making further
double deductions
from the wages of its members, pending the
final determination of Part B of this application. In Part B, which
shall be enrolled
in the ordinary course, SATAWU seeks an order
declaring the closed-shop agreement entered into between Servest and
KAWU invalid
ab initio
. Only Servest has opposed the
application before the Court.
Background
:
[3] The
background to [the initial] application is hardly contested, and may
be summarised as follows;
3.1
Servest
provides private security services and is a division of the Servest
Group. Between May 2020 and August 2020, SATAWU recruited
a number of
employees at the workplace and a significant number had resigned from
KAWU. On 21 August 2020 SATAWU had sent a notice
in terms of section
21(1) of the Labour Relations Act
[2]
(LRA) requesting that it be afforded recognition and organisational
rights, and sought a meeting in that regard;
3.2 Following
another request by SATAWU on 28 September 2020, Servest agreed to a
meeting scheduled for 7
October 2020. At that meeting, Servest had
placed it on record that it had a closed-shop agreement in place
between itself and
KAWU since 25 August 2020. A copy of the agreement
was furnished to SATAWU on 26 October 2020. SATAWU contends that
until then,
it was not aware of the existence of this agreement.
3.3 On
9 October 2020, SATAWU referred a dispute in terms of section 21 of
the LRA to the Commission for
Conciliation Mediation and Arbitration
(CCMA). When attempts at conciliation failed, a certificate of
non-resolution was issued
on 2 November 2020, and the dispute was
referred to arbitration;
3.4 At
the arbitration proceedings held on 25 January 2021, the appointed
Commissioner had directed
the parties to hold a pre-arbitration
conference and to further undertake a verification exercise in
respect of trade union membership
figures. Following a verification
exercise, it was recorded that Servest had a workforce of
approximately 6 342 employees, of which
310 were members of SATAWU.
3.5 At
subsequent arbitration proceedings held on 19 March 2021, Servest
challenged the jurisdiction of the
CCMA on the grounds of the
existing closed-shop agreement with KAWU. The Commissioner in a
ruling issued on 29 March 2021 dismissed
the preliminary point, and
after hearing the merits of the dispute on 20 April 2021, had issued
an award on 7 May 2021, and upheld
SATAWU’s rights in terms of
section 12 and 13 of the LRA;
3.6 On
31 May 2021, SATAWU sent correspondence to Servest to demand that all
monies deducted in favour of
KAWU from its members ought to be
refunded, and moreover that all future double deductions ought to
cease with immediate effect;
3.7 On
1 June 2021, SEESA, an employer’s organisation acting on behalf
of Servest responded to SATAWU’s
letter of demand and
essentially refused to accede on the grounds that;
3.7.1 In
accordance with the closed shop agreement, all employees including
SATAWU members are required to
be members of KAWU and thus, union
subscription fees were payable to it. In this regard, the
resignations from KAWU submitted by
SATAWU members would not affect
that position.
3.7.2 Should
the resignation of SATAWU members be valid, which was denied, then an
agency fee equal to union
subscription would be applicable.’
Closed shop
agreement
[6]
A
closed shop agreement is a specific contract
[3]
between a registered trade union and an employer which requires any
employee (covered by the agreement) to be a member of the trade
union. Such trade union membership thus becomes a pre-condition for
employment with the employer. The shop (workplace) is thus
closed to
non-members – only members of that trade union may work at that
particular business.
‘
A closed shop is
an arrangement whereby a place of employment requires current
membership in a specific
union
as a condition of employment.’
[4]
[7]
The
purpose of a closed shop agreement is to guarantee that all workers
observe the union rules, such as paying monthly dues, taking
part in
strikes and work stoppages, and accepting the terms of wage and
working conditions approved by the union leaders in
collective
bargaining agreements
with company management.
[5]
[8]
Closed
and agency shops are thus vehicles to facilitate majoritarianism in
the workplace. A closed shop is the more draconian of
the two
mechanisms in that it compels membership to a trade union as a
prerequisite for employment. The shop (business) is thus
closed to
non-union members, with only members allowed to work at the shop.
Looking at it from an exclusion or exclusivity perspective,
it is
arguably the workplace equivalent of a country club – only
members are allowed to enter, with non-members denied access
as entry
and other benefits are reserved for members only.
[9]
Closed
shops have been a part of the labour market for over a century in
various jurisdictions, including South Africa. In 1922,
the Appellate
Division (AD) (as it then was) considered a claim for damages arising
out of the dismissal of an employee following
his expulsion from the
trade union in the case of
Matthews
and Others Appellants v Young Respondent
[6]
‘
It is common cause
that it was a condition of plaintiff's employment with the municipal
council that he should be and continue a
member of a trade union. In
consequence of his expulsion from the union the plaintiff was at once
given the usual 24 hours notice
and dismissed from his employment by
the municipal council.’
[7]
[10]
We
distinguish between two types of closed shop agreements: pre-entry
and post-entry.
[8]
Pre-entry closed shop agreements apply prior to commencement of
employment whilst post-entry arrangements kick in after employment
has taken effect. A pre-entry closed shop agreement is identifiable
in that it is a pre-condition towards the conclusion of a contract
of
employment. A post-entry closed shop agreement is a term of the
contract of employment.
[9]
[11]
Closed
shop agreements are not without controversy. These types of union
security arrangements have, for instance, been banned in
the United
States of America since 2017.
[10]
However, trade union security arrangements (such as closed shop
agreements) are still in conformity with critical provisions relating
to freedom of association established by the International Labour
Organisation.
[11]
[12]
In
promulgating the LRA and sections 25 and 26 of the LRA (agency and
closed shops), the legislature gave effect to section 23(6)
of the
Constitution. Section 23(6) of the Constitution states:
‘
National
legislation may recognise union security arrangements contained in
collective agreements. To the extent that the legislation
may limit a
right in this Chapter, the limitation must comply with section 36
(1).’
[13
Section
1 of the LRA confirms its purpose as follows:
‘
The purpose of
this Act is to advance economic development, social justice, labour
peace and the democratisation of the workplace
by fulfilling the
primary objects of this Act, which are—
a) to
give effect to and regulate the fundamental rights conferred by
section 23 of the Constitution of the
Republic of South Africa, 1996;
b)
to
give effect to obligations incurred by the Republic as a member state
of the International Labour Organisation.’
[14]
In
Municipal
and Allied Trade Union of South Africa (MATUSA) v Central Karoo
District Municipality and Others
[12]
(MATUSA)
the Labour Appeal Court (LAC) confirmed as follows:
[13]
‘…
union
security arrangements are in conformity with ILO principles and
standards on freedom of association. The ILO Committee of
Experts has
ruled that union security clauses may be permitted, but should not be
imposed, by law. Union security clauses should
be agreed freely, and
agency fees levied on non-members benefiting from collective
agreements should only take effect through collective
agreements.
Section 25 of the LRA is in compliance with these principles and
standards.’
[15]
In
National
Union of Metalworkers of South Africa and Others v Bader Bop (Pty)
Ltd and Another
[14]
,
the
Constitutional Court (CC) confirmed that the decisions of the Freedom
of Association Committee of the Governing Body of the
ILO are:
‘
[30] …
authoritative development of the principles of freedom of association
contained in the ILO conventions.
The jurisprudence of these
committees too will be an important resource in developing the labour
rights contained in our Constitution.’
[16]
In
the context of collective bargaining, the court stated that:
‘
[31] …
an important aspect of freedom of association in that it affords
workers and employers an option to choose
the particular organisation
they wish to join. Although both committees have accepted that this
does not mean that trade union
pluralism is mandatory, they have held
that a majoritarian system will not be incompatible with freedom of
association, as long
as minority unions are allowed to exist, to
organise members, to represent members in relation to individual
grievances and to
seek to challenge majority unions from time to
time.’
[17]
The
apex court also had opportunity to consider workplace and trade union
majoritarianism in
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[15]
.
It referenced, with approval, the judgment of Zondo JP (as he then
was) in
Kem-Lin
Fashions CC v Brunton
[16]
:
‘
[43] Majoritarianism
is both a premise of and recurrent theme throughout the LRA. Our case
law has long recognised
this, from at least the judgment in
Kem-Lin
,
but probably earlier. In
Kem-Lin
, Zondo JP said:
“
The
legislature has also made certain policy choices in the Act which are
relevant to this matter. One policy choice is that the
will of the
majority should prevail over that of the minority. This is good for
orderly collective bargaining as well as for the
democratisation of
the workplace and sectors. A situation where the minority dictates to
the majority is, quite obviously, untenable.
But also a proliferation
of trade unions in one workplace or in a sector should be
discouraged. There are various provisions in
the Act which support
the legislative policy choice of majoritarianism.”
[17]
Zondo
JP instanced various LRA provisions that illustrate the legislative
policy choice.
[18]
Two of the
most obtrusive suffice. It is majoritarianism that underlies the
statute’s countenancing of both agency shop agreements
(deductions for majority union fees from all employees, both members
and non-members),
[19]
and
closed shop agreements (collective agreement may oblige all employees
to be members of the majority trade union).
[20]
’
[18]
In
SATAWU
obo Mathiso and Others v Pride Bulk Logistics (Pty) Ltd
[21]
(
Mathiso
)
this court, per La Grange J, stated as follows in respect of the
interpretation of section 26:
‘…
The
employer appears to be of the view that before a closed shop
agreement could be concluded, the requirements of section 26(3)
of
the Labour Relations Act, 66 of 1995 (‘the LRA’) had to
be met and believed that the union had to conduct a ballot
before it
could demand a closed shop agreement. However, it would seem that the
requirements of s 26(3) simply state that a close
shop agreement will
not be binding before they are met and not that a close
shop agreement cannot be concluded before they are met.’
[22]
[19]
The
provisions of section 26 must be interpreted in accordance with the
established approach to statutory interpretation in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
.
[23]
The validity of the
closed shop agreement between KAWU and Servest Security of 25 August
2023
[20]
SATAWU
claims that this closed shop agreement is invalid for various
reasons. I deal with these in turn.
Limitation on use of
union fees deducted
[21]
In
terms of SATAWU's claim, the closed shop agreement is invalid as it
does not expressly provide for aspects contained in section
26(3)(d)
of the LRA, namely that no union levy may be deducted, may be:
21.1. Paid
to a political party;
21.2. Contributed
in cash or kind to a political party or person standing for election
to any political office,
or
21.3. Used
for expenditure that does not advance or protect the socio-economic
interests of employees.
[22]
Clause
4.1.6 of the closed shop agreement states as follows:
‘
No amount of
membership fee
may be paid to a political party as an
affiliation fee or contributed in cash or kind to a political party
or person standing for
election to any political office, or uses
(sic) any expenditure that does not advance or protect the
socio-economic interests of
employees." (own emphasis)
[23]
The
prohibition in section 26(3)(d) relates to both any
"…
membership subscription or levy deducted…"
. Does
anything hinge on whether the Agreement makes provision for
membership fees, rather than a membership
subscription
s or
levies
? I cannot see how it could.
[24]
In
this context, membership subscriptions, fees or levies are synonymous
and the provisions of clause 4.1.6 complies with the requirements
of
section 26(3)(d) in respect of members of the majority trade union, a
party to the agreement. I am unable to accept the submissions
regarding the invalidity of the agreement for want of compliance with
section 26(3)(d). The reference to membership fee in clause
4.1.6 of
the Closed Shop Agreement satisfies the requirement in section
26(3)(d), with union levies and membership fees addressing
the same
deduction. But this does not end of our consideration of the wording
of this clause. We later deal with further objections
where the
relevance of this clause comes into play.
[25]
The
next criticism against the Agreement is that it allows for the
deduction of union membership fees from all employees in the
Bargaining Unit. Clause 6.1 of the Agreement provides for a monthly
deduction of
"… Union membership fees…"
.
‘
6.1.
The Company will on a monthly basis deduct from the salaries of all
employees in the Bargaining Unit, Union membership
fees, which will
not exceed R40,00 (forty rand) per employee per month.’
[26]
This
clause warrants consideration of union subscriptions, fees or levies,
on the one hand, and an agency fee, on the other hand.
These are two
dissimilar fees which arise from diverse obligations or entitlements
and are subject to different legal provisions.
[27]
Union
membership fees are deductible from the salaries of employees who are
members of a registered trade union. The arrangement
to allow the
employer to deduct such a membership fee from those salaries (and pay
it to the trade union) arises from an agreement
with the registered
trade union,
[24]
or consent of
or authorisation from the employee member,
[25]
or an arbitration award on this right issued in terms of section 21.
Section 26, on its own, neither compels nor permits the employer
to
deduct union subscriptions or levies from the salaries of its
employees and pay it over to the trade union without any further
steps or requirements. There must be further agreement (with the
union or employees), consent from the employees, or an award allowing
for the deduction of union subscription or levies.
[28]
In
MATUSA
the LAC stated as follows:
‘
[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
[26]
- 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.’
[29]
Servest
may not deduct union fees from employees who are not members of KAWU.
The employer may deduct union fees from trade union
members (where
permitted to do so via a collective agreement, including a closed
shop [agreement, or consent of the employee, or
required by law] and
agency fees (where permitted to do so in an agency shop or closed
shop agreement).
[30]
Where
the employer deducts trade union subscriptions or levies in the
context of a closed shop agreement, the limitations in section
26(3)(d) discussed above apply. Whilst those same restrictions can be
found in section 25(3)(d) – in respect of agency shop
agreements – as well, in section 26(3)(d) the prohibition is in
using union memberships fees deducted for the listed purposes,
whilst
section 25(3)(d) prevents agency fees from being used for the same
prohibited reasons.
[31]
The
legislature thus clearly distinguishes between the use of agency fees
and trade union fees when considering limitations on how
such monies
may be used. In the context of an agency shop agreement, the
legislature limits the use of agency fees. In agency shop
agreements,
employees are not compelled to join the trade union. If they do not
join the trade union, they must pay an agency fee
commensurate with
the union membership fee.
[32]
In
a closed shop agreement, all employees must join the trade union at
risk of dismissal, save for limited exceptions.
[27]
The employer thus deducts from the employee's salary the trade union
subscription which arises due to the employee's membership
of the
trade union. Only in respect of those employees covered under the
exceptions would the employer not deduct and pay over
the trade union
fees, but rather an agency fee in accordance with the provisions of
section 25(3)(b) – (d), (4) – (7).
[33]
It
is this incorporation into section 26 of the section 25 limitation on
agency fees which then makes these limitations applicable
to the use
of trade union fees in terms of section 26. Thus, any deductions made
by an employer from conscientious objectors or
employees who refused
to join the trade union but were already in service at the time of
the conclusion of the closed shop agreement
are subject to the same
limitations as agency fees in terms of section 25. The distinction
between sections 25 and 26 in relation
to these restrictions is that
these restrictions apply to union membership fees and agency fees
payable in terms of section 26,
whilst trade union fees are not
covered by the limitations in section 25.
[34]
Servest
may not deduct union fees from employees who are not members of KAWU.
The employer may deduct union fees from trade union
members (where
permitted to do so via a collective agreement, including a closed
shop [agreement, or consent of the employee, or
required by law] and
agency fees (where permitted to do so in an agency shop or closed
shop agreement).
[35]
Where
an employer deducts trade union subscriptions in the context of a
closed shop agreement, the limitations in terms section
26(3)(d) in
respect of how those fees may be used, apply.
[28]
Whilst those same limitations are also be found in section 25(3)(d)
in respect of agency shop agreements, the distinction lies
in that in
section 26(3)(d) the limitations applies in respect of union
memberships fees for those prohibited causes, whilst section
25(3)(d)
prevents agency fees from being used for the same prohibited reasons.
[36]
The
legislature thus clearly distinguishes between the use of agency fees
and trade union fees when considering limitations on how
such monies
may be used. In the context of an agency shop agreement, the
legislature limits the use of agency fees. In agency shop
environments, employees are not compelled to join the trade union.
However, if they do not join the trade union, they must then
pay an
agency fee commensurate with the union membership fee.
[37]
In
a closed shop agreement, all employees must join the trade union at
risk of dismissal, save for limited exceptions.
[29]
The employer thus deducts from the employee's salary the trade union
subscription which arises due to the employee's membership
of the
trade union. In respect of those employees covered under the
exceptions, the employer may not deduct and pay over the t
rade
union fees
.
It could deduct an
agency
fee
in
accordance with the provisions of section 25(3)(b) – (d), (4) –
(7) if the closed shop agreement allows for such
a deduction.
[38]
It
is this incorporation into section 26 of the section 25 limitation on
agency fees which then makes these agency fee limitations
applicable
to the use of trade union fees in terms of section 26. Thus, when
considering a section 26 closed shop agreement, deductions
made by an
employer in respect of excluded employees
[30]
are subject to the same limitations as applicable in respect of
agency fees in terms of section 25.
[39]
Sections
25 and 26 differ (in relation to these restrictions) in that in
section 26, the restrictions to the use of the deducted
fees apply to
both union membership fees and agency fees payable, whilst only
agency fees are covered by the limitations in section
25, not trade
union fees as well.
[40]
Is
the closed shop agreement invalid because it does not provide for the
limitations in respect of agency fees but only in respect
of union
subscriptions or levies? SATAWU submits that the Agreement does not
require employees who are not members of KAWU to pay
an agency fee.
They are correct because clause 4.1.6 of the closed shop agreement
records limitations to the use of membership
fees deducted. The
clause is silent on any limitations that will apply to agency fees.
[41]
Section
26(7) envisages that there may be employees who, even where they are
not required to pay trade union membership fees, would
remain in
service of the employer despite refusing to join the trade union.
[31]
These employees would then have to pay an agency fee. The provisions
pertaining to an agency fee are incorporated in section 26
by means
of section 26(8).
[32]
[42]
However,
there is nothing in section 26 that suggests that the deduction and
payment of an agency fee is compulsory, or a prerequisite
for the
validity of a closed shop agreement. Section 26(8) does no more than
permit the parties to the closed shop agreement to
reach a consensus
on the payment of an agency fee. They may do so in respect of
conscientious objectors or employees in service
(at the time of the
conclusion of that Agreement).
[43]
Permitting
the parties to a closed shop agreement to agree on the deduction of
an agency fee does not elevate deduction of an agency
fee to a legal
requirement. This is clear from contrasting the wording of section
26(8) with that used by the legislature in 26(3).
The former
indicates that employees may be required to pay an agency fee in
terms of a closed shop agreement, whilst the latter
holds that a
closed shop agreement will only be valid if it contains listed
provisions.
[44]
It
seems clear to me that the requirements in respect of agency fees
will only apply where the closed shop agreement requires or
permits
agency fees to be deducted from non-members. If the closed shop
agreement does not so provide, then the employer would
neither be
permitted nor required to deduct agency fees from the salaries of
non-members nor would it be able to pay it over to
the trade union
(into a separate account established for that purpose). But failing
to agree on the deduction of an agency fee,
on its own, does not
invalidate a closed shop agreement as this provision is not a
pre-requisite for the validity of such a collective
bargaining
agreement.
[45]
To
me, this reasoning is analogous to that adopted by this court, per La
Grange J, in
the
Mathiso
case
.
There is a difference between factors required to establish the
validity of an agreement and provisions that will allow a party
to
the agreement to take steps permitted under the contract, but where
such steps are not prerequisites for the validity of the
agreement.
Agreeing that the employer may deduct an agency fee from non-members
is neither an
essentialia
nor a requirement laid down by law
for the validity of a closed shop agreement. By the same token that
the parties may agree not
to deduct such an agency fee without
impacting the validity of a closed shop agreement, omitting to create
an entitlement to so
deduct an agency fee similarly does not impact
the validity of the agreement. it merely means that the employer may
not deduct
an agency fee from non-members. The agreement remains
effective absent agreement on the deduction of an agency fee.
[46]
SATAWU
claims that clause 4.1.6 of the closed shop agreement violates
sections 26(7) and (8) in it requires all employees in the
bargaining
unit to pay union membership fees, rather than catering for the
exceptions in sections 25(3)(b), (c), (d) and (4) to
(7).
[47]
I
agree with SATAWU's submission. The Agreement permits membership fees
to be deducted from all employees in the bargaining unit.
This is
clearly wrong as union membership fees may only be deducted in
respect of union members, as discussed in paragraph
Error!
Reference source not found.
above. There is nothing in the Closed Shop Agreement empowering
Servest to deduct an agency fee from employees who may legitimately
be employed without being members of the trade union.
[33]
The Closed Shop Agreement does not permit Servest to deduct agency
fees from non-members, or to pay such amounts over to KAWU (whether
into a separate account managed by that union or otherwise). The
closed shop agreement is not capable of an interpretation that
will
see Servest in compliance with its obligations in respect of
non-members arising from sections 26(8) as read with sections
25(3)(b), (c), (d) and (4) to (7).
[48]
Does
this invalidate the agreement, though? No, in this respect the
agreement merely does not include the empowering provisions
that
would allow it to deduct and pay over agency fees. Parties to a
closed shop agreement may agree that in respect of the limited
exceptions applicable to compulsory membership, they will not enforce
payment of an agency fee in respect of such non-members.
The absence
of provisions in a closed shop agreement dealing with agency fees
means that the employer may not deduct such fees
from non-members as
an automatic right. But by the same token, that lack of such a
provision would not invalidate that Agreement
either. It will merely
make the deduction of agency fees otherwise unlawful.
[49]
I
do not understand SATAWU's complaint to be in relation to agency fees
deducted from non-members falling within the exceptions.
Their
unhappiness stems from the fact that Servest is continuing to deduct
union fees for KAWU even after their SATAWU members
resigned from
KAWU. Servest has continued to deduct monies from those members,
albeit the employer agreed to cease such deductions
where they have
resignation forms (resigning membership from KAWU) in respect of
those SATAWU members.
[50]
I
partially agree with SATAWU's contention that an employer may not
deduct double membership fees in terms of a closed shop agreement,
where an employee resigned union membership with the majority union
(that is a party to the Agreement). The employer may only deduct
the
union membership fee where membership persists, and an agency fee if
the closed shop agreement permits for the deduction of
an agency fee.
If a member resigns membership of a trade union and revokes the right
to deduct membership fees in accordance with
section 13(3),
[34]
the employer may not continue to deduct union membership fees from
the employee's remuneration. The employee may authorise the
employer
to deduct and pay over subscriptions in respect of another trade
union where the employer has granted that latter trade
union such
rights in terms of section 13, or in an agency shop or closed shop
agreement.
[51]
A
closed shop agreement compels membership with a trade union, with an
agency fee payable in respect of statutorily permitted
non-membership.
The employer will deduct a trade union subscription
from an employee's remuneration based on the employee's membership to
the (closed
shop) trade union. Where the employee refuses to join the
trade union, resigns membership from the union, or is expelled by the
trade union, the employer no longer has a legal entitlement to deduct
the union membership fee from the employee's salary. Instead,
if the
employee's lack of union membership falls outside of the limited
permissible statutory exceptions, the employer may fairly
dismiss the
employee in terms of section 26(6).
[52]
This
does not prevent an employee from being a member of more than one
trade union at the same time, even if one of them is the
party to a
closed shop agreement at the employee's workplace. If the employee is
willing to pay membership fees to their preferred
trade union, whilst
also paying membership to the majority trade union (party to the
closed shop agreement), that would not be
in contravention of section
26. The employee may belong and pay membership to both unions, but
may not refuse a deduction to a
closed shop agreement union on the
basis of membership with a non-closed shop agreement union. Whilst
considered in the context
of an agency shop agreement, the LAC came
to this same conclusion in
MATUSA
above
.
It stated as
follows at paragraph 21 of that judgment:
‘…
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
.’ (own emphasis)
[53]
The
gravamen of SATAWU's complaint is that they and their members are
prejudiced in that the employer deducts membership fees in
respect of
KAWU from the salaries of the SATAWU members, notwithstanding the
employees having resigned from KAWU.
[54]
The
deduction of union fees, unlike agency fees, is not automatic. Union
membership deductions are permitted based on the agreement
between
the employer, the employee as a member, and the trade union. The
employee grants the employer consent for the deduction
of their union
fees, and for payment of this to the trade union, with the employer
and trade union agreeing on the process and
requirements for giving
effect to such an arrangement. Where an employee resigns their
membership with the union or is expelled
by it, the underlying right
to deduct union fees falls away. SATAWU is correct in contending that
the double deductions were in
contravention of sections 13 and 26 of
the LRA, and section 34 of the Basic Conditions of Employment Act
[35]
(BCEA) in respect of those employees who have resigned their KAWU
membership and notifies Servest in compliance with the employee's
prior commitment to KAWU in respect of such membership termination.
KAWU is neither entitled to an agency fee in respect of such
an
employee nor is Servest able to make a deduction of an ongoing union
membership fee in respect of KAWU pertaining to such a
member.
[55]
As
stated above, I agree that the closed shop agreement does not permit
for the deduction of an agency fee. But it also does not
prohibit (if
it even could) deduction of union fees to SATAWU where the employer
is authorised to deduct and pay such fees in respect
of SATAWU
members. An employer may deduct and pay union fees to the majority
union under a closed shop agreement, and also to a
minority union
where it has members at the same workplace and the employer is
authorised by either a collective agreement or individual
employee
agreement to do so. The deduction and membership to the minority
union does not invalidate the closed shop agreement.
This means that
the employer may, even has to, give effect to the closed shop
agreement in respect of those employees who are non-members
of the
majority union, and who do not fall within the statutory exceptions
providing them protection against dismissal.
[56]
It
is not inconsistent with section 26 for an employee to be a member of
KAWU and a member of SATAWU, and to give Servest permission
to deduct
union levies in respect of both trade unions and pay it over to them.
[57]
The
employee does not enjoy protection against dismissal, though, where
the employee is no longer a member of KAWU and has joined
SATAWU,
under circumstances where (1) the closed shop agreement is valid and
enforceable, and (2) where the employee is neither
a conscientious
objector nor an employee who refused to join KAWU at the time of the
conclusion of the closed shop agreement between
Servest and KAWU.
[58]
Thus,
we have to evaluate the remainder of SATAWU's claims in respect of
the validity to determine the position with respect to
the employees
and the deductions made from their salary.
[59]
SATAWU
objects to the closed shop agreement in that they dispute that (1)
KAWU is the majority union in the workplace, (2) that
a ballot was
held, and (3) that two-thirds of the employees voted in favour of the
closed shop agreement.
[60]
It
is a pity that KAWU did not join proceedings as they would clearly
have been in a position to provide great clarity on a
of the aspects raised. However, that does not prevent this
court from being able to consider the issues based on the evidence
placed before it by SATAWU and Servest.
[61]
As
of 11 February 2021, SATAWU and Servest agreed that the union had 228
members amongst its employees. It is not in dispute that
Servest
employs around 6,000 employees. The membership of KAWU is disputed,
but on consideration of SATAWU's submissions, as read
with the
responses from Servest, I am willing to reject SATAWU's contention
that KAWU did not have as members 5963 of the Servest
employees. On
the facts before me, I conclude that KAWU was indeed the majority
trade union at the time of concluding the agreement.
[62]
I
am unable to conclude that there has not been compliance with section
26 insofar as it relates to whether a ballot was not held,
or that
two-thirds of the employees balloted were not in favour of the closed
shop arrangement. Stated differently, as per the
test below, I am not
satisfied with the inherent credibility of SATAWU's factual averments
in this regard.
[63]
In
Plascon
– Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[36]
the Appellate Division (as it then was) stated as follows in relation
to considering disputes of facts in motion proceedings.
‘
It is correct
that, where in proceedings on notice of motion disputes of fact have
arisen on the affidavits, a final order, whether
it be an interdict
or some other form of relief, may be granted if those facts averred
in the applicant’s affidavits which
have been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. The power of the
court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the
denial by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or bona fide dispute of fact
(see in this regard Room Hire Co (Pty)
Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1163–5;
Da Mata v Otto NO,
1972 (3) SA 858
(A) at p 882D – H). If in
such a case the respondent has not availed himself of his right to
apply for the deponents concerned
to be called for cross-examination
under Rule 6(5)(g) of the Uniform Rules of Court (cf. Peterson v
Cuthbert & Co Ltd,
1945 AD 420
, at p 428; Room Hire case, supra
at p 1164) and the court is satisfied as to the inherent credibility
of the applicant’s
factual averment, it may proceed on the
basis of the correctness thereof and include this fact among those
upon which it determines
whether the applicant is entitled to the
final relief which he seeks (see eg. Rikhoto v East Rand
Administration Board,
1983 (4) SA 278
(W), at p 283 E – H).
Moreover, there may be exceptions to this general rule, as for
example, where the allegations or denials
of the respondent are so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers.
[64]
In
Young,
James and Webster v The United Kingdom
the court held that ‘
[a]
threat of dismissal involving loss of livelihood is a most serious
form of compulsion’
.’
[37]
[65]
The
factual disputes in relation to the balloting does not allow me to
conclude that there had not been compliance with the balloting
requirements in section 26. I do not find that there had been
compliance, but with the onus borne by SATAWU as an applicant, I
find
that they had not proffered evidence to allow me to find in their
favour in regard to the balloting contentions affecting
the validity
of the Agreement. There are various avenues open to SATAWU to compel
disclosure of the balloting process and results
in order to have that
disputed aspect determined should it wish to do so, rather than for
this court to attempt to do so in motion
proceedings.
[66]
The
last challenge to the Agreement is that it is prohibited as it is a
pre-entry closed shop agreement and not a post-entry closed
shop
agreement.
[67]
SATAWU's
contention in this regard is that clause 4.1.5 of the agreement
constitutes a pre-entry requirement. In terms of section
26(3)(c) of
the LRA, a closed shop agreement is only valid if there is no
provision in the agreement requiring membership of the
representative
trade union before employment commences.
[68]
Clause
4.1.5 states that
"[t]he Company may not employ any person to
render services in the Bargaining Unit unless such person becomes a
member of the
Union and the Bargaining Unit"
.
[69]
The
contracts of employment template provide as follows:
‘
The company has a
closed shop agreement with KAWU (Kungwini Allied Workers Union)
effective 28 August 2014. A close (sic) shop agreement
is a type of
collective agreement that requires non-union workers to join the
union. As per this agreement on commencement of employment
automatically you will fall under this union and a monthly fee of
R40,00 will be deducted of (sic) your salary. Should you
refuse/decline
to be part of this collective agreement automatically
your contract of employment is deemed null and void.’
[70]
Do
these provisions amount to a prohibited pre-entry closed shop?
[71]
Pre-entry
closed shops require membership of a trade union as a pre-requisite
for employment. It is a more draconian limitation
on the freedom of
association. As stated by the AD in paragraph 33 in
Veldspun (Pty)
Ltd
above:
‘
It should be
mentioned that the European Court of Human Rights held in
Young,
James and Webster v The United Kingdom
1981 IRLR 408
that a
pre-entry closed shop was hit by Article 11 of the European Human
Rights Convention which guarantees, inter alia, freedom
of
association 'including the right to form and to join trade unions for
the protection of his interests.’
[72]
In
the seminal work, Kahn-Freund's Labour and the Law (referenced with
approval in
Veldspun (Pty) Ltd above
)
,
Davies and
Friedland state as follows in relation to pre-entry closed shops:
‘
The pre-entry
closed shop is the agreed practice whereby no one can apply for a job
unless he is a member of a particular union.
This may (but need not)
mean that the union actually supplies the applicants condition for
the making of the contract of employment.
The post-entry closed shop
arrangement imposes no restriction on application for jobs and no
condition on the making of the contract
of employment, but makes it
incumbent on every worker to join the union (or a specified union)
within a stated period after having
taken up the job: union
membership is a term of the contract of employment, not a condition
of its making.’
[73]
In
the present matter, Servest and KAWU agreed that Servest will not
employ an applicant for employment unless they become a member
of
KAWU. Whilst the language used is not a model of clarity, it is
capable of a construction that allows one to conclude that union
membership is a term of employment, not a pre-condition to concluding
the contract. This interpretation is reinforced as membership
of KAWU
is not required in order to apply for employment with Servest.
[74]
We
then turn to the wording of the template employment contract. In
essence, the employment contract provides that failure to join
the
trade union means that no agreement comes into being. Does this cross
the line and make the closed shop arrangement one where
membership is
required in order to become employed, rather than a condition of
employment as a term?
[75]
The
employment contract requires membership of KAWU as a condition for
the employment contract to come into being. In
Chester
v Snowy Owl Properties and Another
[38]
the Supreme Court of Appeal (SCA) concluded that the plain wording of
a condition precedent in the contract in question should
be
interpreted that, absent fulfilment of the condition,
[39]
there could be no valid agreement between the parties.
[76]
This
seems to me to be the case with respect to the template employment
contract wording. If the employee is not amenable to being
part of
the closed shop arrangement, the employment contract is null and
void.
[77]
The
author R.H. Christie
[40]
states as follows in respect of conditions precedent and resolutive
conditions:
‘
The difference
between a condition precedent (also known as a suspensive condition)
and a resolutive condition (also known as a
condition subsequent) is
easy to state. A condition precedent suspends the operation of all or
some of the obligations flowing
from the contract until the
occurrence of a future uncertain event, whereas a resolutive
condition terminates all or some of the
obligations flowing from the
contract upon the occurrence of a future uncertain event. When the
condition governs the whole contract
there is usually little
difficulty in deciding whether it is a condition precedent or a
resolutive condition, but when it governs
only part of the contract
there may be considerable difficulty in classifying it, and correct
classification may be important in
order to decide the rights and
duties of the parties. Thus in a sale with a
lex commissoria
attached, the proper classification of the condition will decide
whether risk and advantage, ownership and the right to fruits lie
with the buyer or seller.
Whether a condition is
precedent or resolutive is a matter of construction, the words
“subject to” being the normal
way of indicating a
suspensive condition, and the mere fact that some terms of the
contract are to be performed immediately upon
the conclusion of the
contract does not necessarily make a condition governing other parts
of the contract resolutive rather than
precedent. In such a case it
is obviously arguable that the condition is resolutive in respect of
those terms which were performed
before it was fulfilled, and this
fruitful source of disputes is the inevitable result of our ingrained
habit of describing a contract
as conditional when it is only partly
subject to a future uncertain event.’
[78]
In
Wyeth SA
(Pty) Ltd v Manqele and Others
[41]
the LAC confirmed that employment rights accrue upon conclusion of an
employment contract, not only when the employee is expected
to
perform work or becomes entitled to receive remuneration for such
work (performed).
[42]
An
applicant for employment thus acquires protection afforded to
employees upon the conclusion of a valid employment agreement.
This
includes the right to challenge the fairness of a dismissal.
[79]
In
making membership to the trade union a prerequisite for the
conclusion of a valid employment contract, rather than a condition
to
avoid termination of the contract, strikes me as a mechanism that
deprives an employee in this case from the right of challenging
the
fairness of such termination. Whilst such clauses may be permissible
in the conclusion of a typical employment contract, in
the context of
the prohibition on pre-entry closed shops, such a condition precedent
tilts the balance to a conclusion that the
closed shop arrangement
requires membership of the trade union as a precondition for
employment.
[80]
This
takes us from the safe harbour of a post-entry closed shop into the
forbidden land of the pre-entry closed shop. The closed
shop
landscape at Servest (the collective agreement read with the
employment contract template) may not impose any union membership
restriction on the application for jobs, but it imposes it as a
condition on the making of the contract of employment. It does
not
make it incumbent on every worker to join the trade union (within a
stated period after having taken up the job), but instead
makes union
membership a condition for the making or conclusion of the contract
of employment, not merely a term of the employment
contract. This is
the prohibited area identified by Kahn-Freund and the restriction on
closed shops imposed by the legislature
in section 26(3)(c) of the
LRA.
[81]
I
thus conclude that the closed-shop agreement between KAWU and Servest
is not binding as it fails to meet the threshold requirements
for
validity in section 26(3)(c) by requiring membership of KAWU in order
for a valid employment contract to come into being or
exist. The
closed shop agreement, read with the provisions of clause 34 of the
employment contract template, constitutes a prohibited
pre-entry
closed shop agreement.
Deductions
[82]
SATAWU
seeks an order interdicting double deductions from their members'
salaries. In the light of the finding regarding union fees
and agency
fees above, an employer may not deduct an agency fee from the
remuneration of an employee where the employee is not
a member of the
trade union that is a party to a closed shop agreement unless the
closed shop agreement permits such agency fee
deduction.
[83]
In
general terms, Servest may also not deduct union fees in favour of
KAWU where the employees are no longer members of KAWU. Where
employees are still members of SATAWU and KAWU, and there are valid
permissions in terms of section 13 to deduct and pay over membership
fees in respect of both unions, which consent cannot arise from the
non-binding closed shop agreement, then Servest may continue
to
deduct union fees and pay this over to the two unions.
[84]
The
closed shop agreement between KAWU and Servest is invalid, but where
there is a standalone consent for Servest to deduct union
fees from
the salaries of KAWU members, it may do so. Such an obligation may
exist independent from the now impugned closed shop
agreement. The
same is true in respect of SATAWU and its members.
[85]
There
are insufficient facts placed before this court to allow me to make a
determination on the repayment of specific deductions
made. The
parties may take steps in respect of monies deducted from
remuneration in terms of the closed shop agreement that was
not
binding. It would appear to me that such deductions would have been
in contravention of section 34 of the BCEA unless there
were
independent authorisation in terms of section 13 or in a separate
collective agreement, for instance. The parties may exercise
their
rights to recover such deductions, but in motion proceedings and on
the facts before the court, I cannot conclude that all
payments were
irregular and have to be repaid, let alone in respect of whom and the
quantum payable. It may well be, for instance,
that some employees
were and remain members of KAWU and permitted deductions from their
remuneration in terms of section 13 as
a standalone authorisation for
such deduction. In the light of my conclusion in respect of costs, it
would seem to me to behove
the parties involved in this ongoing
relationship to attend to the reconciliation of fees paid and agree
on any remedial steps
to be taken, if any.
Costs
[86]
In
MEC for
Finance: Kwazulu-Natal and Another v
Dorkin
NO and
Another
[43]
the court stated as follows:
‘
The rule of
practice that costs follow the result does not govern the making of
orders of costs in this Court. The relevant statutory
provision is to
the effect that orders of costs in this Court are to be made in
accordance with the requirements of the law and
fairness. And the
norm ought to be that cost orders are not made unless those
requirements are met. In making decisions on cost
orders this Court
should seek to strike a fair balance between on the one hand, not
unduly discouraging workers, employers, unions
and employers’
organisations from approaching the Labour Court and this Court to
have their disputes dealt with, and, on
the other, allowing those
parties to bring to the Labour Court and this Court frivolous cases
that should not be brought to Court.
That is a balance that is not
always easy to strike but, if the Court is to err, it should err on
the side of not discouraging
parties to approach these Courts with
their disputes.’
[87]
Having
considered the novel nature of the application, the dearth of
authority on the topic, the ongoing relationship between the
parties
and the mixed results in respect of the claims and defenses raised, I
am not persuaded that awarding costs will be appropriate
in this
matter. Parties should feel at liberty to approach this court to
ventilate matters especially where the issues are complex,
not
previously covered at length by courts and tribunals, and have a
significant impact on employees, trade unions and employers.
Neither
the application nor the opposition thereof warrants a cost order.
[88]
Accordingly,
I make the following order:
Order
1. The
closed shop agreement between KAWU and Servest Security is not
binding in that it contravenes the
limitation in
section 26(3)(c)
of
the
Labour Relations Act and
is hereby set aside.
2. There
is no order as to costs.
J Botes
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
Adv. M.D. Maluleke
Instructed
by:
M.M. Baloyi Attorneys
For the
Respondents: JM de Villiers
Instructed
by:
De Villiers & Du Plessis Attorneys
[1]
Act
66
of 1995.
[2]
Act
66 of 1995, as amended.
[3]
A
collective agreement is a specific type of contract on matters of
mutual interest concluded between one or more registered trade
unions, and one or more employers or registered employers'
organisation(s). See section 213 of the LRA.
[4]
https://www.law.cornell.edu/wex/closed_shop
.
[5]
Longley R, April 3, 2021
https://www.thoughtco.com/closed-shop-definition-4155834
.
[6]
1922
AD 492.
[7]
Ibid at 499. See also
R
v Daleski
1933 TPD 47
where the court considered the validity of a closed shop
agreement at common law.
[8]
See also
Amalgamated
Clothing and Textile Workers Union of South Africa v Veldspun (Pty)
Ltd (Veldspun (Pty) Ltd)
[1993] ZASCA 158
;
1994 (1) SA 162
(AD) where the AD, as it then was,
records synonymous references to pre- and post-entry closed shops as
hard and soft closed
shops at para 13.
‘
This issue turns
on the meaning, in the submission to arbitration, of the phrase
"closed shop agreement". On behalf
of the employer it was
contended that this was a reference only to what is known in the
field of labour relations as a "hard"
closed shop, that is
the kind of closed shop where the employee must be a trade union
member to be employed. The arbitrator's
award, on the other hand,
provided for a type of "soft" closed shop, where the
employees were required to join the
union within a certain period
after being employed or to authorise their employer to deduct from
their wages and pay to an agreed
charity an amount equal to the
trade union's dues.’
And at para 14, with
reference to the decryption provided in Kahn-Freund's Labour and the
Law3 ed 240-242
‘
In
the first place we must distinguish the pre-entry and the post-entry
closed shop (called 'union shop' in America). The pre-entry
closed
shop is the agreed practice whereby no one can apply for a job
unless he is a member of a particular union. ... The post-entry
closed shop arrangement imposes no restriction on application for
jobs and no condition on the making of the contract of employment,
but makes it incumbent on every worker to join the union (or a
specified union) within a stated period after having taken up
the
job: union membership is a term of the contract of employment, not a
condition of its making.’
[9]
Amalgamated
Clothing and Textile Workers Union of South Africa v Veldspun (Pty)
Ltd
[1993] ZASCA 158; 1994 (1) SA 162 (AD).
[10]
The
Labor Management Relations Act of 1987 (better known as the
Taft-Hartley
Act
),
prohibits a ‘
closed
shop
’,
a union security agreement whereby an employer agrees to employ only
union members. See:
Morrisey
v. West Virginia AFL-CIO
,
239 W. Va. 633, 804 S.E.2d 883 (2017).
[11]
The ILO is an agency of the United Nations tasked with the
protection and promotion of workers’ rights. The Republic of
South Africa is a member country of the ILO.
[12]
[2020] ZALAC 20
; (2020) 41 ILJ 1918 (LAC) at para 33.
[13]
This was in the context of section 25 of the LRA.
[14]
[2002] ZACC 30
;
[2003] 2 BLLR 103
(CC) at paras 30–31. See
also
Solidarity
v South African Police Service and others
[2019] 2 BLLR 187
(LC) at paras 16–18.
[15]
[2017] ZACC 3
;
[2017] 7 BLLR 641
(CC) at para 43.
[16]
[2000] ZALAC 25
; (2001) 22 ILJ 109 (LAC).
[17]
Ken-Lin
at
para 19.
[18]
"
These
included sections 14(1), 16(1), 18(1), 32(1)(a) and (b), 32(3)(a),
(b), (c) and (d); 32(5) and 78(b)."
[19]
"Section
25".
[20]
"Section
26".
[21]
[2018]
ZALCJHB 200; [2019] JOL 44286 (LC).
[22]
Ibid
at
para 19.
[23]
In
Natal
Joint Municipal Pension Fund
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) the Supreme Court of Appeal held at
para 18:
“
consideration
must be given to the language used in the light of the ordinary
rules of grammar and syntax; the context in which
the provision
appears; the apparent purpose to which it is directed and the
material known to those responsible for its production…
A
sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike results or undermines the apparent purpose
of the
document.”
This approach was
approved by the Constitutional Court in
Airports Company South
Africa v Big Five Duty Free (Pty) Limited and Others
[2018] ZACC
33
;
2019 (5) SA 1
(CC) at para 29 and
Road Traffic
Management Corporation v Waymark (Pty) Limited
[2019] ZACC 12
;
2019 (5) SA 29
(CC) at para 29.
[24]
A
collective agreement, including the closed shop agreement, may cater
for this obligation and right.
[25]
Section
13(1) of the LRA provides that an employee may authorise an
employer, in writing, to deduct union subscription or levies.
[26]
Act 75 of 1997.
[27]
Section 26
(5):
“No trade union that is party to a closed shop agreement may
refuse an employee membership or expel an employee from
the trade
union unless —
(a)
the refusal or expulsion is in accordance with the trade union’s
constitution;
and
(b)
the reason for the refusal or expulsion is fair, including, but not
limited to,
conduct that undermines the trade union’s
collective exercise of its rights.”
[28]
In
terms of section 26(3)(d) of the LRA, no union levy may be deducted
may be “
paid
to a political party, contributed in cash or kind to a political
party or a person standing for election to any political
office, or
used for expenditure that does not advance or protect the
socio-economic interests of employees”
.
[29]
Section 26
(5)
provides that “
No
trade union that is party to a closed shop agreement may refuse an
employee membership or expel an employee from the trade
union unless
—
(a)
the refusal or expulsion is in accordance with the trade union’s
constitution;
and
(b)
the reason for the refusal or expulsion is fair, including, but not
limited to,
conduct that undermines the trade union’s
collective exercise of its rights”.
[30]
Conscientious objectors or employees who refused to join the trade
union but were already in service at the time of the conclusion
of
the closed shop agreement.
[31]
See
fn 25 above.
[32]
Section 26(8): “The
employees
referred
to in subsection (7) may be required by the closed shop agreement to
pay an agreed agency fee, in which case the provisions
of section
25(3)(b), (c) and
(d)
and (4) to (7) apply.”
[33]
Conscientious objectors or employees who refused to join the trade
union but were already in service at the time of the conclusion
of
the closed shop agreement, as per section 26(7).
[34]
Section 13 of the LRA:
“
(1)
Any 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.”
(2)
An employer who receives authorisation in terms of subsection (1)
must begin making the authorised
deduction as soon as possible and
must remit the amount deducted to the representative trade union by
not later than the 15th
day of the month first following the date
each deduction was made.
(3)
An employee may revoke an authorisation given in terms of subsection
(1) by giving the employer and
the representative trade union one
month’s written notice or, if the employee works in the public
service, three months’
written notice.
(4)
An employer who receives a notice in terms of subsection (3) must
continue to make the authorised
deduction until the notice period
has expired and then must stop making the deduction.
[35]
Act
75 of 1997.
[36]
[1984] ZASCA 51
;
1984 (3) SA 623
at paras 8-9.
[37]
Young,
James and Webster v The United Kingdom
1981 IRLR 408.
[38]
[2021] ZASCA 30; [2021] JOL 49983 (SCA).
[39]
.
“
[t]he
whole of this agreement is subject to the following conditions
precedent being met prior to the transfer date…".
[40]
Christie
The
Law of Contract in South Africa
,
5
th
ed (LexisNexis, Cape Town) at p 139.
[41]
[2005] ZALAC 1
;
(2005)
26 ILJ 749 (LAC).
[42]
Ibid at para 45:
“…
I am of
the view that this Court is thus entitled to depart from such a
literal and ordinary construction and extend the literal
construction of the definition as including a person who has
concluded a contract of employment which is to commence at a future
date.”
See also para 52:
“
The ultimate
conclusion this Court arrives at is that the definition of employee
in s 213 of the LRA can be read to include a
person or persons who
has or have concluded a contract or contracts of employment the
commencement of which is or are deferred
to a future date or dates.”
[43]
[2007] ZALAC 34
;
[2008] 6 BLLR 540
(LAC) at para 19.