FURTHER REVISION - LWLCA3-B22

QUESTION 1 (20 MARKS):

The ILO Convention 87 [Freedom of association and the right to organise] is the
principal source of international obligations in relation to the right to freedom of
association. As a signatory to this convention, South Africa must ensure that as few
workers as possible are alienated from this right.

Critically discuss, with reference to relevant case law, whether the following categories
of employees can join a trade union, form trade unions and be involved in trade union
activity:
1.1 Sex workers (7 Marks)
1.2 Senior managers (7 Marks)
1.3 Soldiers (6 Marks)

SUGGESTED GUIDELINE MEMO – QUESTION 1 (20 MARKS):

1.1 In terms of Chapter II of the LRA, every employee has the right to join a trade
union and participate in ‘lawful activities”. (1) In Kylie v CCMA and others 2010
(LAC), (1) the court stated that if a trade union is formed to further a crime, the
Registrar would be entitled to refuse to register if. (1) Therefore, sex workers may form
and join trade unions, but the LAC confirmed that sex workers as employees would
not be allowed to participate in activities that amounted to the furtherance of a crime.
(1) ‘Lawful activities” mentioned in section 4 and 5(2)(a) of the LRA was given a
broad interpretation by the Constitutional Court in National Union of Public and
Allied workers v National Lotteries Board 2014 CC, so as to exclude only illegal
activities that constitute a contravention of the law. (1) Sex workers are illegal workers
and will, therefore, have difficulty forming trade unions in furtherance of their trade. (1)

1.2 Freedom of association is a Constitutional as well as a basic labour right of

every employee in an organisation, regardless the status and seniority of the
employee. Section 4 of the Labour Relations Act (LRA) determines that every
employee has the right to participate in forming a trade union and to join a trade union,
subject to its constitution. Senior managers, therefore, have in principle a right to join
and the right to participate in its activities. This right can also not be excluded by
contract. The employer however has a right to enforce the manager’s fiduciary duties
in terms of company law and common law. In terms of common law, a manager owes
a fiduciary duty to his employer, (1) which includes avoiding conflicts of interest (1)
and protecting certain confidential information. (1) The question arises as to whether
joining a trade union may compromise these common law duties. IMATU & Others v
Rustenburg Transitional Council (2002) 11 LC 12.2.1.
However, the court held that senior managerial employees may not be prevented from
being involved in union activities or serving in union executive positions. (1) However,
the exercise of the right to freedom of association by senior executives is not unlimited.
(1)
A senior managerial employee that becomes a union leader must, in consequence,
tread carefully, especially in his handling of confidential information. (1) It is not enough
simply to keep the information secret; rather, he must recuse himself (1) from every
discussion within the union to which such information might be relevant either directly
or indirectly lest he conveys, merely by his conduct or simply silence, facts that the
employer would prefer the union not to know. (1)
The senior employee may participate in union discussions on a strategy to which
information given to them is irrelevant, (1) since this is implicit in his right to participate
in trade union activities but must guard himself even from exercising a judgment on
the basis of such information. (1) The delicacy of the discretion that this entails makes
his position an unenviable one, but the LRA gives him the right to enter this minefield
if he wishes.
1.3 The leading case dealing with soldiers and freedom of association
is SANDU_v_Minister _of_Defence CC (2007). The court confirmed that soldiers do
have a right to freedom of association, and were allowed to join trade unions, but that
certain curtails were appropriate to this right. While soldiers were training or
undergoing certain military exercises, the defence force was justified in limiting the
right of soldiers to participate in trade union activities. For example, no soldier could
participate in trade union activities during a military operation.

QUESTION 2 (20 MARKS):

Study the scenario and complete the question that follows:

Employees dismissed for celebrating Eid al-Fitr

Mohamed is a religious man, who works as a Halaal butcher at ABC Butchery along with
his brother, nephew and two of his cousins. ABC Butchery employs 10 people. Mohamed
and his family take part in the Ramadan fast every year. The breaking of the fast is
celebrated with a great celebration called Eid al-Fitr. This is considered a religious holiday
for all Muslims around the world. Mohamed informs Peter, the manager of ABC Butchery,
that he and his family will not be attending work on Eid al-Fitr. Peter says that it is not a
public holiday and seeing that he has a huge order of meat that must go out on that day,
Mohamed and other Halaal butchers will not be able to take leave on that day. Mohamed
and the other butchers do not go to work on the day of the Eid celebration. Peter is furious,
he sends a message to Mohamed saying that they have all been dismissed for taking part
in an unprotected strike. Mohamed comes to you for advice.

Source: Erasmus, S. 20

With reference to legislation and relevant case law, write a detailed legal opinion
advising Mohamed on what constitutes an unprotected strike and whether his actions
constitute an unprotected strike.
SUGGESTED GUIDELINE MEMO – QUESTION 2 (20 MARKS):

A strike is a form of industrial action. Section 213 of the Labour Relations Act 66 of
1995 defines a strike as “the partial or complete refusal to work or the retardation or
obstruction of work, by persons who are or have been employed by the same employer
or by different employers, for the purpose of remedying a grievance or resolving a
dispute in respect of any matter of mutual interest between the employer and the
employee, and every reference to work in this definition includes overtime work,
whether it is voluntary or compulsory.” The definition has three main elements and is
best discussed by examining its individual components: Partial or complete refusal to
work, or retardation or obstruction of work. A strike needs not necessarily amount to a
complete withdrawal of labour. Strikes assume a variety of forms including a partial
refusal to work, retardation and obstruction of work. There is no strike when employees
refuse to work contrary to any law or collective agreement.
In the matter of Simba (Pty) Ltd v FAWU [1997] 5 BLLR 602 (LC), employees
refused to work according to a new shift pattern introduced by the employer, the
intention of the employer when it introduced new lunch break patterns was to ensure
24-hour production. This would mean that some employees would have to work for
more than their statutory designated five hours without a break. The employees
refused to abide by this new system and the employer sought an interdict on the
grounds that the refusal to work constituted an unprotected strike. The court held that
the word “strike” in the definition of a strike does not include illegal work and thus,
refused to grant the interdict.
Application: Mohamed and his family did not attend work at all.
Collective Action: As a strike is part of collective bargaining it is by its very nature a
collective action. The definition refers to a ‘concentrated refusal’ and ‘persons’ which
indicated that more than one person must be involved.
In the matter of Schoeman & another v Samsung Electronics (Pty) Ltd, the labour
court confirmed that an individual employee cannot strike.
Application: Mohammed was not the only person who did not attend work on the day
of Eid al-Fitr.
Purpose of the Strike: The purpose requirement of the definition distinguishes a
strike from other forms of work stoppage. Central to the strike is the demand that gives
rise to it, and this should reflect the required purpose that a grievance be remedied or
dispute is resolved. The word ‘dispute’ is defined to include an alleged dispute. It is
not necessary, therefore, for the party in a dispute to do more than allege that a dispute
exists – the merits of the dispute or any secondary dispute about the dispute exists
are of no consequence. All employees of an employer are allowed to strike whether
they are directly involved in the dispute or not. However, if there is no dispute, there is
no strike. If employees refuse to work but do not seek to remedy a grievance or resolve
a dispute, there is no strike in terms of the definition.
In the matter of FAWU & others v Rainbow Chicken Farms [200] 1 BLLR 70 (LC),
the employees collectively refused to work on a religious holiday. The employer
claimed that the employees were on an unprotected strike. The court held that the
purpose of their refusal to work was not to remedy a grievance or resolve a dispute in
any matter of mutual interest between the employer and the employees. The refusal
to work was, therefore, not a strike, protected or unprotected.
Application: Mohammed and the other butchers did not seek to remedy a
grievance or resolve a dispute as is required for a strike. Thus, the refusal to work
on Eid al-Fitr by Mohamed and the other Muslim butchers cannot be considered to be
a strike and thus, they cannot be dismissed for their participation in an unprotected
strike

QUESTION 3 (20 MARKS):

Study the scenario and complete the question that follows:

Trade unions demand information

Super Wheels (Pty) Ltd is a manufacturing company that specialises in the production
of customised wheels for mining vehicles in Emalahleni. Super Wheels (Pty) Ltd has 70
employees. Of these 70 workers, 30 receive remuneration monthly and 40 workers
receive weekly wages.
At the Emalahleni factory, there are two active trade unions. SWTU represents 15 of the
weekly workers and 10 of the monthly paid workers, and NUMSA represents five of the
weekly paid workers and 5 of the monthly paid workers. Both trade unions are
registered. The remaining workers do not have any union affiliations.
During the wage negotiations that took place in 2020, SWTU demanded a wage
increase of 12% for their members and NUMSA demanded a 20% wage increase.
Super Wheels (Pty) Ltd indicated that due to the current economic situation, they cannot
give any increase and indicated that strike action will most probably lead to the
liquidation of the company as they are currently barely passing the solvency and liquidity
test.
The union representatives of SWTU are not convinced that Super Wheels (Pty) Ltd are
being honest about their financial position, as the managing director, has recently been
seen driving a brand-new Rolls-Royce Wraith, valued at R6 400 000. Accordingly, the
trade union representatives for SWTU and NUMSA respectively have demanded that
Super Wheels (Pty) Ltd must disclose their financial statements for 2021/2022.
Source: Erasmus, S. 20.

The directors of Super Wheels (Pty) Ltd approach you for legal advice.
Advise the directors of Super Wheels (Pty) Ltd whether they are obligated to provide
the union representativeness with their financial statements. In your answer, you
should refer specifically to the representativeness of each trade union and the
organisational rights that they are entitled to.
(20 Marks)
SUGGESTED GUIDELINE MEMO – QUESTION 3:

Chapter III of the Labour Relations Act establishes various organisational rights for the
benefit of trade unions stating the rights that are capable of enforcement against the
employer:

• Section 12: Trade Union access to the workplace

• Section 13: Deduction of trade union subscriptions
• Section 14: The election and appointment of trade union representatives.

Shop stewards

• Section 15: Leave for trade union activities

• Section 16: Disclosure of information

These organisational rights are aimed at assisting unions to build up sufficient

bargaining power to persuade employers to negotiate. The main aim of organisational
rights can, therefore, be said to be the promotion of industrial self-governance and
collective bargaining.
However not all registered trade unions are entitled to these rights. Only registered
trade unions that are ‘representative’ may acquire organisational rights in terms of the
LRA.
These organisational rights can be obtained in one of four ways:

• Through collective agreement.

• Through bargaining council affiliation.
• Section 21 of the LRA process (Based on representativity).
• Strike (NUMSA v Bader Bop (Pty) Ltd& another [2003]2 BLLR103 (CC)).

In general, the Act draws a distinction between unions that are merely ‘sufficiently
representative’ and ‘majority unions’ depending on the percentage of workers that are
represented at the workplace.
Majority Trade Union are registered trade unions that have majority of their members
employed by an employer at a workplace. (50% +1) Unions that are majority unions
are afforded the following rights:

• Trade Union access to the workplace

• Deduction of trade union subscriptions
• The election and appointment of trade union representatives. (Shop
• stewards)
• Leave for trade union activities
• Disclosure of information

‘Sufficiently Representative’
The Act does not stipulate what ‘sufficiently representative’ means, other than that it
is a union that is not a majority trade union. Should a dispute arise about what is
sufficiently representative at a particular workplace, the matter should be referred to
the CCMA and the commissioner must:

• Seek to minimise the financial and administrative burden of requiring an

employer to grant organisational rights to more than one registered trade union.
• Seek to minimise the proliferation of trade union representation in a single
workplace and where possible, encourage a system of one representative trade
union in one workplace.
• And having regard to various factors pertaining to the nature of the workplace,
the nature of the organisational rights that the union wants to exercise, the
nature of the sector in which the workplace is situated as well as the
organisational history at the workplace or any other workplace of the employer.

Unions that are considered to be sufficiently representative are afforded the following
rights:·

• Access to the workplace.

• Deduction of trade.
• Union subscriptions.
• Leave for trade union activities.

Application to the scenario

Trade Union SWTU: SWTU represents 25 of the 70 workers at the workplace. (36%)
based on its level of representativeness, SWTU may be considered to be sufficiently
representative and thus, may be entitled to the organisational rights in terms of Section
12, 13 and 15 of the LRA. SWTU is not a majority trade union, and as such, they are
not entitled to the disclosure of information in terms of Section 16 of the LRA.
Trade Union NUMSA: NUMSA represents 10 of the 70 workers at the workplace.
(14%). NUMSA is considered to be a minority trade union and accordingly, is not
entitled to any organisational rights.
Thus, Super Wheels (Pty) Ltd is under no legal obligation to provide either of the trade
unions with its financial statements for 2021/2022 financial year.

Relevant case law in this area which students may utilise should be awarded marks.
Cases could include:
NUMSA & others v Bader Bop another [2003] 2 BLLR 103 CC
OCGAWU & another v Volkswagen of SA [2002]1 BALR 60 CCMA

QUESTION 4 (30 MARKS):

Study the scenario and complete the question that follows:

Unions fight for recognition

Mag (Pty) Ltd is a manufacturing company that specialises in the production of customised
wheels for mining vehicles in Emalahleni. Mag (Pty) Ltd has 70 employees. Of these 70
workers, 30 receive remuneration monthly and 40 workers receive weekly wages.
Most of the workers are represented by Super Wheels Trade Union with no other trade unions
representing workers of Mag.
At the beginning of 2020, rumours started spreading that the trade union
NUMSA has shown a keen interest in requiting members at the Mag (Pty) Ltd.
As SWTU is a small union and is dependent on every member’s contribution
to remain in existence. The union representatives have attempted talks with
Mag (Pty) Ltd however the employer has blatantly refused to get involved with
union affairs, stating that “we have enough problems of our own”.
SWTU approach you to provide legal advice on how to secure their position as the majority
trade union at Super Wheels (Pty) Ltd.

Source: Erasmus, S. 2022

Provide a legal opinion for SWTU wherein you discuss, with reference to Sections 18,
23 and 36 of the Constitution, why union security arrangements are controversial.
Indicate how these agreements are allowable in a Constitutional framework and advise
SWTU on the best possible option for SWTU. (30 Marks)

SUGGESTED GUIDELINE MEMO – QUESTION 4:

What might be argued to be exceptions to the right to freedom of association can be

found in the closed shop and agency shop agreements recognised and regulated by
Sections 25 and 26 of the LRA. (1)
Union Security agreements can only be described as exceptions to freedom of
association as provided for in Section 18 of the Constitution, (1) if one accepts that the
right to associate and the right not to associate are not inseparable elements of a
single concept. (1) If so, any limitation of the right to freedom of not to associate must
be justifiable in terms of the limitation clause, Section 36 of the Constitution. (1)
This means that for union security agreements to be considered Constitutional, it must
be reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom. (1)
Both the Constitution and the Labour Relations Act (hereafter the LRA) place the
promotion of collective bargaining high on its agenda and for this reason it may be if
ever challenged, that the limitation of freedom of association imposed in terms of
Section 26 of the LRA would be considered reasonable and justifiable for public policy
reasons. (1)
The reasons for entering into such agreements include:

• Unions and its members argue that the so-called ‘free riders’ should pay their
own way. (1)
• One of the primary objectives of the LRA is the promotion of a framework within
which employees and their trade unions can collectively bargain in an orderly
 fashion. The existence of strong and independent unions is vital to achieving
this objective. )1_
• Union security agreements take one of two forms.

A closed shop agreement is a collective agreement concluded by a majority union and

an employer or employers’ organisation, which requires all employees covered by the
agreement to become members of the trade union. (1) It is not unfair to dismiss an
employee who refuses to join a trade union party to a closed shop agreement, or who
is refused membership of that trade union or expelled from such a trade union. A
closed shop agreement, therefore, compels employees to become members of that
trade union. (1)
For the union to establish such an agreement the following conditions must be met:

• Only a Majority Trade Union may conclude such an agreement. (1)

• A ballot must be held of the employees who will be affected by the agreement.
(1)
• Two thirds of the employees who vote must vote in favour of the agreement. (1)
• The agreement must be a post entry closed shop agreement. (1)
• The agreement must provide that no membership subscription or levy deducted
may be used for inappropriate purposes. (1)
• Employees who were already employed at the time that the closed shop
agreement comes into effect may not be dismissed for refusing to join the trade
union party to the agreement. (1)
• Employees who refuse to join the trade union party on the grounds of
conscientious objection may not be dismissed. (1)
• An agency shop agreement does not compel an employee to be or to become
a member of a trade union that is the beneficiary of the agreement but requires
the contribution by non-members of an agency fee, to that union as a condition
of employment. (1)

Section 26 of the LRA regulates Agency Shop Agreements.

A union with majority support may conclude an agency shop agreement with an
employer. In terms of this agreement, an amount is subtracted monthly from the wages
of non-members who are eligible for union membership. (1) The fee may not be higher
than the union’s membership fees and is paid into a fund which is controlled by the
majority union. (1)
Even though an agency shop agreement does not require membership, it could be
considered an infringement upon the right to freedom not to associate as improper
pressure is exercised upon an employee with regard to choice of association. (1)
Also give marks where appropriate, for the following cases that consider the
rights associated with union security arrangements.
Municipal and Allied Trade Union of South Africa v Central Karoo District Municipality
and others [2020] 9 BLLR 896 (LAC).
Ncungama & others v Bargaining Council for the Liquor Catering & Accommodation
Trades, South Coast, KwaZulu Natal & another [2002] 8 BLLR 766 (LC).
QUESTION 5 (10 MARKS):

Study the scenario and complete the question that follows:

Unions fight for recognition
2012 Lawn Mowers (2012LM) manufactures lawn mowers in Benoni and distributes
them. ZZ Motors (ZZM), a company in Brits, manufactures and distribute electric
motors and supplies 2012LM with electric motors. NWU is the majority trade union in
both 2012LM and ZZM. Employees in ZZM motors go on strike for a wage increase.
ZZM employees want to go on strike in support of the demand by employees of
2012LM.
Source: Erasmus, S. 20.
Identify the type of industrial action employees of ZZM wish to embark upon and give
the requirement necessary for protection for this action. (10 Marks)

SUGGESTED GUIDELINE MEMO – QUESTION 5:

The type of action is a secondary strike or sympathy strike (1) [both acceptable].
For a secondary strike to be protected, the LRA sets the following requirements:

• The primary strike must be protected. (1)

• Strikers must give their employer seven days' (1) written notice of the
commencement of the strike. (1)
• The harm to the secondary employer must not be more than what is required
to make an impact on the primary employer. (1)

These requirements need more explanation.

• Protection: The secondary strike will be protected only if the primary strike is
protected. (1) In other words, the primary strike must have successfully crossed
all three hurdles discussed above. (1)
• Notice: The secondary employer must be given seven days’ written notice
before the commencement of the secondary strike. (1) This is to give the
secondary employer an opportunity to put pressure on the primary employer to
accept the demands of the primary strikers. (1) If the secondary strike is part of
a strike about dismissals for operational reasons, 14 days' written notice must
be given to the secondary employer before the strike can commence. (1)
• Proportionality: The nature and extent of the secondary strike must be
reasonable in relation to the possible direct or indirect effect that it may have
on the business of the primary employer. (1) This requirement protects the
secondary employer and ensures that the secondary strike does not cause
significant harm to the secondary employer without having any effect on the
primary employer. (1) In the example above, the secondary strike would, for
example, not have a proportional effect on A if B supplied only two percent of
A's raw wood. While in such instance, the secondary strike may bring great
financial loss for B, it will have very little impact on A. (1)
Please add additional marks for the following cases on requirements for a
secondary strike.
Association of Mineworkers and Construction Union and others v AngloGold Ashanti
Ltd t/a AngloGold Ashanti and others 2022 (8) BCLR 907 (CC).
Samancor Ltd & another v NUMSA [1999] 11 BLLR 1202 (LC), SALGA v SAMWU
[2011] JOL 27055 (LAC)