The point of departure when dealing with a matter of representation is first to identify and interpret the condition that is attached to it. Closed-Shop Agreements, as contained in Section 25 of the Labour Relations Act (LRA), refer to a Collective Agreement between a majority Trade Union and an Employer, which dictates that Employees must be Members of that majority Trade Union. The question then arises whether the Collective Agreement impacts representation at the Commission for Conciliation, Mediation and Arbitration (CCMA) when the Employee elects a different Trade Union other than the majority Trade Union to represent them.

Rule 25 of the CCMA Rules states that a party can be represented by a registered Trade Union. The matter of representation by a Trade Union is also a Constitutional right as contained in the Constitution of the Republic of South Africa. Section 23 of the Constitution grants individuals the “Freedom of Association” to form and join Trade Unions of their choice. It grants the Trade Union the right to represent their Members’ interests.

Section 200 of the LRA specifically deals with the representation of Employees by Trade Unions:

“Representation of Employees or Employers –

(1) A registered Trade Union or registered Employers’ Organisation may act in any one or more of the following capacities in any dispute to which any of its Members is a party…

(2) A registered Trade Union or a registered Employers’ Organisation is entitled to be a party to any proceedings in terms of this Act if one or more of its Members is a party to those proceedings….”

Section 4(1)(b) of the LRA states:

“Employees’ right to “Freedom of Association” – Every Employee has the right to participate in forming a Trade Union or federation of Trade Unions; and to join a Trade Union, subject to its Constitution.”

The right to “Freedom of Association” is also internationally recognised by international law instruments as contained in the International Labour Organisation Convention (ILOC) 87 of 1948 and includes the following articles:

Article 2 – “Without distinction, workers and Employers shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”

Article 3.1  – “Workers’ and Employers’ Organisations shall have the right to draw up their Constitutions and rules, elect their representatives in full freedom, organise their administration and activities, and formulate their programmes.”

Article 3.2 – “The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”

In the case of POPCRU V South African Correctional Services Workers Union (SACSWU) And Others, the Court stated, “These rights cannot be limited by a private agreement between an Employer and a majority Trade Union. But they may be limited by a law of general application provided it meets the requirements of Section 36 of the Constitution. This provision emphatically declares that rights in the Bill of Rights may be limited only in terms of a law of general application.”

This would lean on the presumption that a Closed-Shop Agreement does not have the power to limit the right to choose representation at a tribunal level.

In the POPCRU case, the Court also went on to quote Bader’s assessment of the right to “Freedom of Association”: “An important principle of “Freedom of Association” is enshrined in Article 2 of the Convention on Freedom of Association and Protection of the Right to Organise, which states: “Workers and Employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” Both committees have considered this provision to capture 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 Trade Unions are allowed to exist, to organise Members, to represent Members in relation to individual grievances and to seek to challenge majority Trade Unions from time to time.”

The above statement makes it apparent that the Court’s intention is not to discredit the importance or validity of Closed-Shop Agreements but rather to adopt a more flexible and inclusive approach to grant Employees the opportunity to choose their representation when it comes to issues pertaining directly to themselves, for example in disciplinary proceedings. This would not affect the organisational rights that may have been agreed to by the majority Trade Union and the Employer.

In conclusion, the Court stated that the attempt to limit Employees’ right to choose their Trade Union of choice for representation would restrict their rights in terms of the Bill of Rights. The prevention of not allowing a minority Trade Union the opportunity to represent its Members in proceedings and forcing specific representation would undermine their rights.

Reference was made to the case of County Fair Foods (Pty) Ltd v CCMA, a Trade Union other than the Respondent Trade Union, of which the Employee was then a Member, had initially referred the dispute. The Labour Appeal Court held that this did not mean that the withdrawal of the first Trade Union ended the dispute. Both Trade Unions had merely represented the Employee, who was the affected party. Accordingly, the Commissioner rejected the company’s objection to the Employee being Represented by the Respondent Trade Union.

Article by Zothani Maseko

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)