Case Note: The Right to Union Representation in Individual Workplace Disputes: Whose Right Is It Anyway? Thoughts on Solidarity v SA Police Service & others
Author Emma Fergus
Affiliations: Senior Lecturer, Commercial Law Department, Institute of Development and Labour Law, University of Cape Town
Source: Industrial Law Journal, Volume 41 Issue 1, 2020, p. 104 – 115
Solidarity v SA Police Service & others dealt with an application by an unrepresentative trade union seeking permission from the employer of one of its members to have a Solidarity official represent her during an individual grievance hearing. The Labour Court referred inter alia to the limited provisions of the Labour Relations Act (LRA) governing organisational rights in finding that there was no statutorily enforceable right available to unrepresentative trade unions to enter the employer’s premises for the purposes of representing their members in individual grievance hearings. In doing so, however, the court suggested that the LRA may be unconstitutional in failing to provide such a right — an issue which was not before the court in the case. This case note considers the merits of the Labour Court’s suggestion, proposing an alternative interpretation of the LRA, premised on the right to freedom of association, which avoids a finding that the Act is unconstitutional. In acknowledging differences of opinion on the matter, factors for consideration if a full limitations clause analysis was to be undertaken are also briefly examined.