Abstract

Keywords

Freedom of association; trade union; victimisation; trade union security arrangements; prejudice; detriment; trade union lawful activities; international labour standards.

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The right to freedom of association is a fundamental right protected internationally and domestically. According to section 18 of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution), everyone has the right to freedom of association. In the employment context, this right is protected in terms of section 23, which states that every person has the right to fair labour practices and the right to form and join a trade union. The right to freedom of association and other labour rights in section 23 of the Constitution are largely influenced by the International Labour Organisation (hereafter the ILO) Freedom of Association and Protection of the Right to Organise Convention 87 of 1948 1

 Makwena Ernest Manamela. BProc LLB (UNIN) LLM LLD (UNISA). Department of Mercantile Law, University of South Africa. Email: manamme@unisa.ac.za. ORCiD: https://orcid.org/0000-0003-0690-947X

1 Freedom of Association and Protection of the Right to Organise, Convention (87 of 1948) (Convention 87). This convention was ratified by South Africa on 19 February 1996.

The Labour Relations Act 66 of 1995 (hereafter the LRA), regulates this right in terms of its various provisions, such as sections 4 and 5. Furthermore, section 1(b) of the LRA indicates that the purpose of the Act is to give effect to obligations incurred by South Africa as a member state of the ILO. Freedom of association for employees entails their right to form, join and participate in the lawful activities of a trade union. 3

3 Grogan Employment Rights 377.

Although this right is internationally and domestically generally well protected, employees at various levels still experience victimisation as a result of exercising the right. 4

4 Mashaba v Telkom SA 2018 39 ILJ 1067 (LC) para 25. Although according to Grogan, cases of victimisation are few, it must be acknowledged that employees are being victimised by employers for exercising their right to freedom of association (Grogan Collective Labour Law 26).

victimisation for exercising it in South Africa and will briefly also look at the position in the United Kingdom (hereafter the UK), in order to determine whether there are lessons to be learned for South Africa. 5

5 Industrial relations began in the UK (Great Britain) as a product of the first industrial revolution (see Mcllroy Trade Unions 1).

2 The concepts of "freedom of association" and "victimisation"

2.1 Freedom of association

Whereas this right is important in the employment context, the concept of "freedom of association" is not defined by labour legislation, including the LRA. According to Madima 6

6 Madima 1994 TSAR 545-555.

Freedom of association is largely a positive right through which employees form a trade union, which becomes their representative or mouthpiece. In terms of section 213 of the LRA, a trade union is "an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers' organisations". It must, however, be noted that a trade union need not be registered in order to qualify and function as one. Trade unions attain better terms and conditions of employment on behalf of their members and this improves their bargaining power with their employer. The right to freedom of association therefore underpins collective bargaining. 9

9 Collective bargaining is a voluntary process in which organised labour in the form of trade unions and employers or employers' organisations negotiate collective agreements with each other to determine wages, terms and conditions of employment or other matters of mutual interest (see item 4 of the Code of Good Practice: Collective Bargaining, Industrial Action and Picketing (GN R1396 in GG 42121 of 19 December 2018)); Davies and Freeland Kahn-Freund's Labour and the Law 201; Garbers et al New Essential Labour Law Handbook 397.

Freedom of association also has a negative element in that employees have the right not to associate or the right of non-association. This means

that no person may force an employee to belong to a trade union other than a trade union of his or her choice, except where trade union security arrangements exist, 11

11 Garbers et al Essential Labour Law Handbook 403, 437. These agreements limit employees' right to freedom of association in that the first type of agreement compels employees to become members of a trade union party to the agreement and the latter requires employees who are eligible to be members of a trade union party to the agreement to pay an agency fee.

2.2 Victimisation

The concept of "victimisation" is not defined in labour legislation. It has, however, been said that this concept covers actions which are prejudicial to employees for conduct permitted by legislation. 12

12 Grogan Employment Rights 376.

Labour legislation prohibits certain practices which may directly or indirectly amount to victimisation and these include the prohibition of unfair dismissals by the employer, 15

15 Sections 185 and 187(1) of the Labour Relations Act 66 of 1995 (the LRA). The LRA requires all forms of dismissals to be fair in relation to the reason and the procedure.

It is therefore submitted that the victimisation of employees will include detrimental or unfavourable acts by the employer against employees for exercising their labour rights, including the right to freedom of association such as joining a trade union or participating in lawful trade union activities.

3 Protection of employees against victimisation for exercising their right to freedom of association

The focus below will be only on instruments which are directly relevant to freedom of association in the employment context and on domestic legal protection in South Africa.

3.1 International and regional protection of employees against victimisation

Employees' right to freedom of association cannot be enforced domestically without reference to international instruments. 18

18 Budeli 2009 De Jure 139.

In addition to the above, the ILO has set and enforces international labour standards in relation to the right to freedom of association. 22

22 For further details on the role of the International Labour Organisation (the ILO) in setting and enforcing international standards, see Tshoose 2022 PELJ 1-43.

According to Article 1 of Convention 98, workers shall enjoy protection against anti-union discrimination in respect of their employment. Article (2)(a) further states that such protection shall apply particularly in respect of acts calculated to make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership. 24

24 In terms of Art 2(b) of Convention 98, protection also applies in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or with the consent of the employer, within working hours.

The Southern African Development Community (hereafter SADC) also adopted a Charter of Fundamental Social Rights in 2003, which provides for a general right to associate. Article 4 of the Charter requires member states to create an enabling environment, consistent with ILO Conventions on freedom of association. Article 10 of the Charter provides that every individual shall have the right to free association provided that he or she abides by the law. The Charter endorses the right to freedom of association in international instruments such as the UDHR, ICCPR and ICESCR. 26

26 Preamble and Art 60 of the Charter of Fundamental Social Rights (2003).

Although the above Conventions cover employees' right to freedom of association and protect them against victimisation; individual employees have no direct remedy through them, as these Conventions can be enforced by workers' organisations only by lodging complaints to the ILO Committee.

3.2 The legal framework on the protection of employees against victimisation in South Africa

3.2.1 Protection under the Constitution

Prior to 1994, international standards played only an ancillary role in developing the South African labour law. Currently the Constitution recognises international law as a basis of democracy. It requires the application of international law when interpreting South African legislation and in particular the Bill of Rights. 27

27 Sections 39 and 233 of the Constitution of the Republic of South Africa, 1996 (the Constitution); S v Makwanyane 1995 3 SA 391 (CC) para 104; Minister of Defence v SA National Defence Force Union 2006 27 ILJ 2276 (SCA) para 5.

Section 18 of the Constitution provides for the right to freedom of association for everyone, whereas section 23(2) of the Constitution provides that every "worker" has the right to form and join a trade union; to participate in the activities and programmes of a trade union; and to strike. 28

28 Furthermore, based on ss 9(1) (the right to equality) and 10 (the right to human dignity) of the Constitution, every worker should enjoy the right to freedom of association, subject to justifiable limitations (s 36).

Section 39 of the Constitution provides that, when a court is interpreting chapter 2 of the Constitution, it must consider international law. In my view, the conventions and recommendations of the International Labour Organisation (the ILO), one of the oldest existing international organisations, are important resources for considering the meaning and scope of 'worker' as used in section 23 of the Constitution.

In this case reference was made to Article 2 of Convention 87 where it states that workers and employers have the right to form and join organisations of their choice. ILO standards were also considered in National Union of Metalworkers v Bader Bop (Pty) Ltd, 30

30 National Union of Metalworkers v Bader Bop (Pty) Ltd 2003 24 ILJ 305 (CC) para 12.

Workers in general are entitled to enjoy their right to freedom of association, but section 36 of the Constitution allows for the restriction of

the rights contained in the Bill of Rights in line with the law of general application, on condition that the restriction is reasonable and justifiable. This implies that provisions of section 23 of the Constitution can be subject to limitations. It is submitted, however, that the victimisation of employees for exercising their constitutional right cannot be viewed as a reasonable and justifiable restriction. Section 23(6) of the Constitution nevertheless allows for trade union security arrangements which put a limit on the right to freedom of association, as will be discussed below.

3.2.2 Protection under the LRA

Chapter II of the LRA specifically focusses on the protection of the right to freedom of association. Although the LRA does not specifically use the term "victimisation" nor define it, the Act protects employees against victimisation for exercising the right to freedom of association through various provisions, including sections 4, 5, 187, 64 and 67, which will be discussed below. This protection is an improvement from the Labour Relations Act, 1956 (hereafter the LRA, 1956), which did not meet international labour standards. Unlike the Constitution which refers to "workers" and provides for a wider protection of the right, the LRA narrows protection to "employees" and "persons seeking employment" in certain cases. 32

32 The term "worker" has been considered broadly to cover members of the armed forces even though the relationship they have with the Defence Force is different from an ordinary employment relationship (SANDU v Minister of Defence 1999 20 ILJ 2265 (CC) paras 26-27), whereas s 213 of the LRA defines an employee as "any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer."

3.2.2.1 Protection under section 4 of the LRA

Section 4(1) of the LRA protects employees' right to form and join a trade union subject to its constitution. A trade union may in its constitution determine who may or may not become its member. As a voluntary association, under common law a union cannot be forced to admit certain people. 33

33 Carr v Jockey Club of South Africa 1976 2 SA 717 (W) 722H-723E.

union is expressly extended to "persons seeking employment". 36

36 Section 5 of the LRA; Grogan Collective Labour Law 23.

Section 4(2) grants members of a trade union the right to take part in its lawful activities; in the election of its office-bearers, officials or trade union representatives; to stand for election and be eligible for appointment as an office bearer or official and if elected or appointed, to hold office; and to stand for election and be eligible for appointment as a trade union representative and if elected or appointed, to carry out the functions of a trade union representative. In National Union of Metalworkers obo members v Transnet 38

38 National Union of Metalworkers obo members v Transnet 2019 40 ILJ 583 (LC) (the NUMSA v Transnet case) para 29.

3.2.2.2 Protection under section 5 of the LRA

Section 5 of the LRA protects employees and those seeking employment against discrimination for invoking rights contained in the LRA, including their right to freedom of association. 40

40 Grogan Collective Labour Law 22.

Safcor Freight (Pty) Ltd v SAFDWU, 45

45 Safcor Freight (Pty) Ltd v SAFDWU 2012 12 BLLR 1267 (LAC) para 18.

Section 5(2) of the LRA states that no person may require an employee or a prospective employee not to be a member of a trade union, or to give up membership of a trade union. An employer may therefore not demand that a prospective employee should not be or become a member of a trade union or should give up union membership as a precondition for being employed. An employer may also not require an employee to resign from a trade union as a condition for the employee to be promoted. 46

46 Garbers et al Essential Labour Law Handbook 399.

Gas Installations (Pty) Ltd, 50

50 Nkutha v Fuel Gas Installations (Pty) Ltd 2000 21 ILJ 218 (LC) (the Nkutha case).

Just like any other employee, senior managerial employees have the right to freedom of association, though the right is limited. This was confirmed in SASBO v Standard Bank of SA, 51

51 SASBO v Standard Bank of SA 1998 19 ILJ 223 (SCA).

3.2.2.3 Protection under section 187 of the LRA

This section deals with automatically unfair dismissals. This is a type of dismissal which an employer cannot defend, because it is automatically unfair. The employer cannot, for example, justify the dismissal on the basis that a fair procedure was followed. It is a type of dismissal which infringes the fundamental rights of employees at the workplace. Based on section 187(1) of the LRA, employers may not violate the rights of employees set

out in section 5 of the LRA. The section regards dismissals as automatically unfair if the reasons are related to the present, past or anticipated membership of a trade union or refusing to agree not to join a trade union or refusing to give up membership; 55

55 Adams v Coin Security Group (Pty) Ltd 1998 12 BLLR 1238 (LC) (the Adams case).

Section 187(1)(d) of the LRA also protects employees against being victimised through dismissal for instituting action or showing an intention to institute action against the employer through invoking any right contained in the LRA or participating in any proceedings in terms of the LRA. In Kroukam v SA Airlink (Pty) Ltd 61

61 Kroukam v SA Airlink (Pty) Ltd 2005 26 ILJ 2153 (LAC).

functioning of the company. The employee argued that the dismissal should be deemed automatically unfair based on section 187(1)(d) of the LRA, because it was based on trade union activities and his initiation of litigation against the employer on behalf of the union. The court found the dismissal to be automatically unfair and dispelled the notion that involvement in trade union activities damages the trust relationship.

3.2.2.4 Protection under sections 64 and 67 of the LRA

The right to strike flows from and is an important element of the right to freedom of association and the right to bargain collectively. 62

62 Myburgh 2004 ILJ 966; Manamela and Budeli 2013 CILSA 308.

The freedom to associate and to bargain collectively must be supplemented by an additional freedom, which is the freedom to strike. Hence, freedom to strike is a contemporary freedom of the freedom of association since both are meant to help in achieving a common goal which is to place the employer-employee relationship on an equal basis.

The right to strike is not expressly referred to in Conventions 87 and 98, nor in the ILO Constitution or the Declaration of Philadelphia. Nevertheless, the ILO's Freedom of Association Committee has amongst others construed Article 3 of Convention 87 to include the right to strike. 67

67 Committee on Freedom of Association "Second Report" Appendix 5, 181, para 27.

In South Africa this right is protected in terms of section 23(2)(c) of the Constitution, which provides that every worker has the right to strike. This right may, however, be limited in terms of section 36 of the Constitution, in the interest of society in general or by the competing rights of others. The LRA regulates the right to strike and limits it in certain respects. Firstly, an

action will qualify as a strike only if it complies with the definition as provided by section 213 of the LRA, which defines a strike as:

The partial or complete concerted 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 employer and employee …

Although a worker has the right to strike in line with the Constitution, the right can be exercised only collectively, which means that if employees had no right to freedom of association, the right to strike would not be operational. 68

68 Schoeman v Samsung Electronics SA (Pty) Ltd 1997 18 ILJ 1098 (LC).

According to section 67(2) of the LRA, employees engaged in a protected strike are guaranteed immunity from civil claims. Section 67(4) of the LRA further protects employees against dismissal for their participation in a protected strike. In line with section 187(1) of the LRA discussed above, such a dismissal will be regarded as automatically unfair. Employees are

also protected against disciplinary action short of dismissal. 70

70 PSA v Minister of Justice and Constitutional Development 2001 11 BLLR 1250 (LC).

If the strike is unprotected, section 68(1)(a) of the LRA permits the employer to approach the Labour Court for an interdict. Where an employer suffers loss because of an unprotected strike, the Labour Court may award a "just and equitable" compensation in terms of section 68(1)(b) of the LRA. 73

73 Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union 2002 1 BLLR 84 (LC) 91F.

All the above provisions of the LRA are intended to protect employees against prejudice for exercising their right to freedom of association and their right to strike, but also taking into consideration the rights of others. It is submitted that employees are at times still subjected to victimisation, in spite of all the above international and domestic law provisions guaranteeing employees' protection against victimisation for exercising their right to freedom of association.

3.2.2.5 Protection for those excluded from the LRA

Members of the South African National Defence Force (hereafter SANDF) and the State Security Agency (hereafter SSA) do not fall under the LRA and therefore are not covered by the provisions of the LRA relating to the protection of the right to freedom of association. They enjoy the right to freedom of association as provided for in sections 18 and 23 of the Constitution. In SANDU v Minister of Defence 75

75 South African National Defence Union v Minister of Defence 1999 4 SA 469 (CC) para 18. It was held in this case that the constitutional right to form and join trade unions extends to members of the South African National Defence Force, even though they are expressly excluded from the LRA.

unconstitutional. It was stated, however, that the nature of their work may justify a limitation of the rights contained in section 23 of the Constitution. Such a limitation would be in line with Article 9 of Convention 87, which allows States to decide the extent to which members of the armed and police services may exercise the right to freedom of association.

In Kylie v CCMA 76

76 Kylie v CCMA 2010 7 BLLR 705 (LAC) para 58.

3.3 Trade union security arrangements

Section 23(6) of the Constitution limits the right to freedom of association. It provides for trade union security arrangements which include closed shop agreements and agency shop agreements. These agreements are regulated in terms of sections 25 and 26 of the LRA. On the one hand, a closed shop agreement is "a collective agreement concluded by a majority trade union and an employer or employers' organisation which requires all employees covered by the agreement to become members of the trade union." 77

77 Section 26(1) of the LRA.

While a closed shop agreement compels employees to join a particular trade union, an agency shop agreement does not compel them to do so, but it requires the payment by non-members of an agency fee to that trade union. 80

80 Greathead v SACCAWU 2001 22 ILJ 595 (SCA); Solidarity v Minister of the Public Service Administration 2004 25 ILJ 1764 (LC); NMFEA v Bikwani 1999 20 ILJ 2637 (LC).

It is submitted that the limitations in sections 25 and 26 of the LRA are reasonable and justifiable for public policy reasons and do not amount to victimisation against employees. These are checks and balances, to ensure that the two agreements are in line with constitutional provisions. In ACTWUSA v Veldspan 83

83 ACTWUSA v Veldspan 1993 14 ILJ 1431 (A).

3.4 Employees' remedies against victimisation

The LRA provides employees with various remedies in cases where their labour rights are infringed. First, it gives the Labour Court powers to interdict the victimisation of employees. If victimisation takes the form of a dismissal or an unfair labour practice, the Labour Court or arbitrators may grant an employee relief in the form of reinstatement; re-employment or compensation. 85

85 Section 193(1)(a)-(c) of the LRA.

4 The legal framework on the protection of employees against victimisation in the United Kingdom

4.1 General

The UDHR forms the basis of the Human Rights Act 42 of 1998 in the UK. The UK also agreed to follow the ICCPR and the ICESCR in 1976. Like South Africa, the UK has ratified both ILO Conventions 87 and 98 and is therefore bound by their provisions with regard to the right to freedom of association. 87

87 The UK ratified Convention 87 in 1949 and Convention 98 in 1950.

In the UK the initial provisions relating to the victimisation of employees were included in the Industrial Relations Act 36 of 1971. It was the Report of the Royal Commission on Trade Unions and Employers Associations 91

91 Royal Commission on Trade Unions and Employers' Association Report 219.

It has been reported that in the UK there is widespread employer victimisation of lay union representatives, including in the construction industry. From January 1998 until December 2018, around 755 cases of victimisation were reported. 94

94 Druker 2016 ILJ 220-237; Gall 2021 Capital & Class 55.

Although there are various statutes which protect employees against victimisation; the main piece of legislation protecting employees against victimisation for exercising the right to freedom of association in the UK is the Trade Union and Labour Relations (Consolidation) Act, 52 of 1992 (hereafter the TULRCA).

4.2 Protection under the TULRCA

Although the TULRCA does not use the term "victimisation" nor define it, the Act protects employees' right to freedom of association and also protects them against victimisation. 98

98 The Equality Act, 2010 offers general protection to employees against discrimination, harassment and victimisation.

an organisation –

Which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers' associations; or …

Although the definition of trade union in the UK is wider and refers to "workers" instead of "employees" as the LRA does, the purpose of trade unions is similar to that of South African trade unions. Section 137 of the TULRCA is analogous to section 5 of the LRA as it prohibits refusal of employment on the grounds of trade union membership. A person who is unlawfully refused employment has the right to lodge a complaint with an industrial tribunal. 99

99 Section 137(2) of the Trade Union and Labour Relations (Consolidation) Act 52 of 1992 (hereafter the TULRCA); Harrison v Kent CC [1995] ICR 434; Fitzpatrick v British Railways Board [1992] ICR 221.

covers services and benefits. 100

100 Ewing 2003 ILJ 7.

In terms of section 146 of the TULRCA, as with the South African position under section 5 of the LRA, it is evident that if victimisation happens it must be suffered by an individual worker. This was introduced in the UK in order to prevent claims by rival trade unions and to ensure stable bargaining arrangements. 104

104 Post Office v Union of Post Office Workers [1974] ICR 378.

participation in trade union activities. A detriment will exist if a reasonable worker sees the conduct as being to his detriment. 108

108 St Helen's Borough Council Derbyshire [2007] UKHL 16; Gayle v Sandwell and West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924.

Members of trade unions and trade union representatives are also protected against victimisation or dismissal for exercising their right to time off for trade union duties or activities. Furthermore, section 146 of the TULRCA affords workers the right not to suffer any detriment by any act of deliberate omission on the part of the employer, on condition that the purpose of the omission is to prevent or deter them from joining or taking part in trade union activities. For a person to enjoy protection in the above sense he or she must be a worker, the trade union of which he or she is a member must be independent, and the union activities should have taken place at an "appropriate time". The concept of "appropriate time" is defined in section 146(2) of TULRCA as either outside of working hours or in working hours agreed with the employer or set out in an agreement.

Under section 152 of the TULRCA a dismissal on the grounds of trade union membership or activities is unlawful. 109

109 In Morris v Metrolink [2018] EWCA Civ 1358, the court of appeal found that a trade union representative had been automatically unfairly dismissed in the course of trade union activities.

4.3 The right to strike and the protection of employees against victimisation

As in South Africa the right to strike is an essential element of collective bargaining in the UK. Demir and Baykara v Turkey 110

110 Demir and Baykara v Turkey [2008] ECHR 1345.

organise or participate in industrial action. 112

112 Morris and Archer Trade Unions, Employers and the Law 207.

There is no legislation in the UK which limits industrial action in essential services; however, there are provisions limiting the police, armed forces, merchant seamen, postal and telecommunications workers' right to strike. 118

118 Bowers Practical Approach to Employment Law 621.

against dismissal for participating in an official strike, but in terms of section 237 of the TULRCA an employee may not complain about unfair dismissal if he was dismissed while engaged in an unofficial industrial action. The section provides that a strike or other industrial action is unofficial in relation to an employee unless – (a) he is a member of a trade union and the action is authorised or endorsed by that union; or (b) he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed.

4.4 Trade union security arrangements

In the UK the right not to join a trade union has the same protection as the right to join a trade union. Unlike in South Africa, all forms of closed shops in the UK are illegal based on the introduction of the Employment Act 38 of 1990 119

119 Section 1 of this Act provided a right for job applicants not to be discriminated against on the grounds of trade union membership.

4.5 Employees' remedies against victimisation

As in South Africa, an employee who has been victimised for exercising the right to freedom of association has remedies in the UK. In terms of section 140 of the TULRCA, where the industrial tribunal finds that a complaint under sections 137 and 138 of the TULRCA is well-founded, it shall make a declaration to that effect. It may make an order requiring the employer to pay compensation to the complainant or a recommendation that the employer take within a specified period action appearing to the tribunal to be practicable for the purpose of avoiding or reducing the adverse effect on the complainant of any conduct to which the complaint relates. 120

120 Section 140 of the TULRCA.

the employer fails to comply with a recommendation, the tribunal may increase its award of compensation. Furthermore, if the tribunal finds that the complaint under section 146 of the TULRCA is well-founded it may make an award of compensation which is just and equitable to be paid by the employer to the complainant. Previously section 157(1) of the TULRCA provided that where a tribunal made an award of compensation based on section 152(1) or 153 of the TULRCA, unless otherwise, the complaint did not request the tribunal to make an order for reinstatement or re-engagement or the case fell within section 73(2) of the Employment Protection (Consolidation) Act, 1978, the award included a special award calculated in accordance with section 158 of the TULRCA. However, this position was changed by the Employment Relations Act, 1999, which abolished special awards in cases of a dismissal due to union activities. 121

121 See s 33(1)(b) of Employment Relations Act, 1999.

It is evident from the above that the TULRCA is more specific in terms of the remedies employees may be granted in case of victimisation based on exercising their right to freedom of association. The remedies are more stringent under the TULRCA, for example, as stated above for the purposes of section 140, compensation may include compensation for injury and feelings and the tribunal may increase its award of compensation where the employer without a reasonable justification fails to comply with its recommendation. However, it is submitted that the abolition of special awards for employees dismissed due to union activities not only reduced employees' protection but also the possible deterrence it had against employers who victimise their employees for exercising their right to freedom of association.

5 Conclusion

Employees' right to freedom of association and the protection of employees against victimisation for exercising the right to freedom of association are of importance and therefore are well provided for internationally in terms of different instruments, including relevant ILO Conventions. 123

123 ILO Conventions 87 and 98.

no codified Constitution, this right is protected and regulated amongst others by sections 137, 145, 146, 152 of the TULRCA. Although the concept of victimisation is not used in labour legislation in either country, employees in these countries are protected against victimisation and may not be subjected to prejudice 124

124 Section 5(2)(c) of the LRA.

Despite the vast protection of the right to freedom of association, employees in both countries still experience victimisation in various forms as is seen from case law. 129

129 The NUMSA v Transnet case; the IMATU case; the Cold Chain case; the Farnsworth case; the Bone v North Essex case.

adequate protection of their labour rights, including the right to freedom of association, and the time has come for them to enjoy the protection now offered under the Constitution and the LRA. A prohibition of victimisation against employees who exercise their right to freedom of association and more stringent measures against employers who victimise their employees should be clearly and directly provided for in the LRA in order to deter employers from engaging in such conduct. It must be noted that there can be no effective workers' organisation without the effective protection of employees from victimisation for exercising the right to freedom of association.

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Theron J "Trade Unions and the Law: Victimisation and Self-Help Remedies" 1997 LDD 11-38

Tshoose 2022 PELJ

Tshoose CI "Appraisal of Selected Themes on the Impact of International Standards on Labour and Social Security Law in South Africa" 2022 PELJ 1-43

Case law

South Africa

ACTWUSA v Veldspan 1993 14 ILJ 1431 (A)

Adams v Coin Security Group (Pty) Ltd 1998 12 BLLR 1238 (LC)

Association of Mineworkers and Construction Union v Chamber of Mines of SA 2017 38 ILJ 831 (CC)

BAWU v Prestige Hotels CC t/a Blue Waters Hotel 1993 14 ILJ 963 (LAC)

Carr v Jockey Club of South Africa 1976 2 SA 717 (W)

CEPPWAWU v Metrofile (Pty) Ltd 2004 25 ILJ 231 (LAC)

Ceramic Industries Ltd v NCBAWU 1997 6 BLLR 697 (LAC)

Eldelweiss Glass and Aluminium (Pty) Ltd v NUMSA 2012 1 BLLR 10 (LAC)

FAWU v Pets Products 2000 21 ILJ 1100 (LC)

FAWU v The Cold Chain 2007 7 BLLR 638 (LC)

FGWU v The Minister of Safety and Security Group (Pty) Ltd 1999 20 ILJ 1258 (LC)

General Food Industries v FAWU 2004 25 ILJ 1260 (LAC)

Greathead v SACCAWU 2001 22 ILJ 595 (SCA)

Hannsen v Alstom Electrical Machines (Pty) Ltd 2004 2 BLLR 133 (LC)

Harding v Petzetakis Africa (Pty) Ltd 2012 33 ILJ 876 (LC)

Independent Municipal and Allied Trade Union (IMATU) v Rustenburg Transitional Council 2000 21 ILJ 377 (LC)

JDG Trading (Pty) Ltd v Brunsdon 2000 1 BLLR 1 (LAC)

Karras t/a Floraline v SASTAWU 2001 1 BLLR 1 (LAC)

Kroukam v SA Airlink (Pty) Ltd 2005 26 ILJ 2153 (LAC)

Kylie v CCMA 2010 7 BLLR 705 (LAC)

Mashaba v Telkom SA 2018 39 ILJ 1067 (LC)

MCI Staff Committee v Midland Chamber of Industries 1995 5 BLLR 74 (IC)

Minister of Defence v SA National Defence Force Union 2006 27 ILJ 2276 (SCA)

Modise v Steve's Spar Blackheath 2000 21 ILJ 519 (LAC)

Mzeku v Volkswagen SA (Pty) Ltd 2001 22 ILJ 1575 (LAC)

National Union of Metalworkers v Bader Bop (Pty) Ltd 2003 24 ILJ 305 (CC)

National Union of Metalworkers obo members v Transnet 2019 40 ILJ 583 (LC)

National Union of Public Service and Allied Workers obo Mani v National Lotteries Board 2014 35 ILJ 1929 (CC)

Nkutha v Fuel Gas Installations (Pty) Ltd 2000 21 ILJ 218 (LC)

NMFEA v Bikwani 1999 20 ILJ 2637 (LC)

NUM v Black Mountain Mining (Pty) Ltd 2010 3 BLLR 281 (LC)

PSA v Minister of Justice and Constitutional Development 2001 11 BLLR 1250 (LC)

Rustenburg Platinum Mines Ltd v Mouthpiece Wokers Union 2002 1 BLLR 84 (LC)

S v Makwanyane 1995 3 SA 391 (CC)

SACWU v Afrox 1998 19 ILJ 62 (LC)

Safcor Freight (Pty) Ltd v SAFDWU 2012 12 BLLR 1267 (LAC)

SANDU v Minister of Defence 1999 20 ILJ 2265 (CC)

SASBO v Standard Bank of SA 1998 19 ILJ 223 (SCA)

SATAWU v Bosasa Security 2013 34 ILJ 3305 (LC)

Schoeman v Samsung Electronics SA (Pty) Ltd 1997 18 ILJ 1098 (LC)

Solidarity v Minister of the Public Service Administration 2004 25 ILJ 1764 (LC)

South African National Defence Union v Minister of Defence 1999 4 SA 469 (CC)

TSI Holdings (Pty) Ltd v NUMSA 2004 6 BLLR 600 (LC)

WUSA v Crouse 2005 26 ILJ 1723 (LC)

United Kingdom

American Cyanamid Co v Ethicon Ltd [1975] AC 396

Bone v North Essex Partnership NHS Foundation Trust [2016] EWCA Civ 45

Demir and Baykara v Turkey [2008] ECHR 1345

Fitzpatrick v British Railways Board [1992] ICR 221

FW Farnsworth Ltd v McCoid (1999) IRLR 626

Gayle v Sandwell and West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924

Harrison v Kent CC [1995] ICR 434

London Borough of Wandsworth v NAS/UWT [1993] IRLR 344

Lyon v St James Press Ltd [1976] IRLR 215

Morris v Metrolink [2018] EWCA Civ 1358

Post Office v Union of Post Office Workers [1974] ICR 378

St Helen's Borough Council Derbyshire [2007] UKHL 16

UCL v Brown UKEAT/0084/19/VP

Wilson v United Kingdom [2002] ECHR 552

Legislation

South Africa

Constitution of the Republic of South Africa, 1996

Defence Act 42 of 2002

Employment Equity Act 55 of 1998

Labour Relations Act 28 of 1956

Labour Relations Act 66 of 1995

United Kingdom

Employment Act 38 of 1990

Employment Protection (Consolidation) Act 44 of 1978

Employment Relations Act, 1999

Employment Relations Act 24 of 2004

Employment Rights Act, 1996

Equality Act, 2010

Human Rights Act 42 of 1998

Industrial Relations Act 36 of 1971

Trade Union Act 15 of 2016

Trade Union and Labour Relations (Consolidated) Act 52 of 1992

Government publications

South Africa

GN R1396 in GG 42121 of 19 December 2018 (Code of Good Practice: Collective Bargaining, Industrial Action and Picketing)

United Kingdom

Employment Relations Act 493 of 1999 (Blacklists) Regulations 2010

International instruments

Charter of Fundamental Social Rights (2003)

European Convention on Human Rights (1950)

Freedom of Association and Protection of the Right to Organise, Convention (87 of 1948)

ILO Constitution (1919)

ILO Declaration of Philadelphia (1944)

ILO Declaration on Fundamental Principles and Rights at Work (1998)

International Covenant on Civil and Political Rights (1966)

International Covenant on Economic, Social and Cultural Rights (1966)

Right to Organise and Collective Bargaining, Convention (98 of 1949)

Universal Declaration of Human Rights (1948)

Internet sources

Israelstam 2005 http://www.hrpulse.co.za/legal/legal-opinion/231272-is-workplace-victimisation-prohibited

Israelstam I 2005 Is Workplace Victimisation Prohibited? http://www.hrpulse.co.za/legal/legal-opinion/231272-is-workplace-victimisation-prohibited accessed 4 April 2022

Wikipedia 2022 https://en.wikipedia.org/wiki/Declaration_on_ Fundamental_Principles_and_Rights_at_Work

Wikipedia 2022 Declaration on Fundamental Principles and Rights at Work https://en.wikipedia.org/wiki/Declaration_on_Fundamental_Principles_and_Rights_at_Work accessed 13 October 2023

List of Abbreviations