APL4801 Applied Labour Law
Assignment 2 2021
Unique number: 811884
QUESTION 1:
Critically discuss the significance of the case cited below and provide reasons
why you agree or disagree with the judgment National Union of Metal and
Allied Workers of SA and Others v Bader Bop (Pty) Ltd (2003) 24 ILJ 305 (CC).
1.1. INTRODUCTION
The Constitutional court in National Union of Metal and Allied Workers of
South Africa and Others v Bader Bop1 grappled with the issues of pluralism
and limitations on the right to strike. The court was not faced with a set of
facts that included a collective agreement that contained a no-strike clause. In
Bader Bop members of a non-recognised minority, the union sought to
enforce organisational rights using a strike, although the Labour Relations Act
66 of 1995 (LRA) does not accord such rights to minority unions. The court,
however, leaned towards pluralism and the recognition of the fact that minority
trade union’s right to strike should not glibly be restricted if this can be
prevented by an alternative interpretation of the LRA.
1.2. FACTS
The facts of the case are as follows; Bader Bop manufactured leather
products for the automobile industry and at that time the company employed
approximately 1000 employees outside Pretoria. The General Industrial
Workers Union of South Africa (GIWUSA) represented the majority of Bader
Bops workers and enjoyed all the organisational rights in terms of Chapter III
of the LRA.
In terms of section 11 of the LRA, representative trade unions ‘that are
sufficiently representative of the employees by an employer in a workplace’
1
National Union of Metal and Allied Workers of SA and Others v Bader Bop (Pty) Ltd (2003) 24 ILJ 305 (CC).
, may claim one or more of the following rights at a workplace, namely, trade
unions access to an employer’s premises2; the deduction of trade union
subscriptions from their member’s pay3; and reasonable time off for trade
union officials to perform their functions of the office.4
It is clear from the above provisions that, at least in as far as the granting of
organisational rights is concerned, endorses a pluralist rather than a strict
majoritarian approach. Consequently, the LRA does further prescribe that two
of the organisational rights, namely, the right to elect trade union
representatives and the right to relevant information 5 are conferred only upon
those trade unions that have as members a majority of the employees
employed in the workplace.
In Bader Bop the National Union of Metalworkers of South Africa (NUMSA)
represented only 26% of the workers at the employer’s workplace.
Nonetheless, it claimed, amongst others, the right to elect shop stewards.
Even though the Bader Bop was willing to accord NUMSA access to its
premises and stop-order facilities, it was not willing to recognise the union’s
shop stewards. The Union declared a dispute at the Commission for
Conciliation, Mediation, and Arbitration (CCMA) over the acquisition of
organisational rights and informed the employer that it intended to commence
with strike action. Bader Bop contended that NUMSA could not strike as it
was not entitled to claim the organisational rights in question in terms of the
LRA. NUMSA argued, in any event, had the option of referring a dispute to the
CCMA in terms of section 21 of the LRA, procedure. Such an arbitration
process seeks to minimise the proliferation of trade unions in a single
workplace, by taking factors such as organisational history and the
composition of the workplace into account.6
2
Section 12 of the Labour Relations Act 66 of 1995.
3
Section 13 of the LRA.
4
Section 15 of the LRA.
5
Sections 14and 16 of the LRA.
6
Section 21(8) of the LRA; South African Clothing and Textile Workers Union v Marley (SA) (Pty) Ltd (2000) 21
ILJ 425 (CCMA); C Mischke ‘Getting a Foot in the Door’ (2004) 13 (6) CLL 51.
Assignment 2 2021
Unique number: 811884
QUESTION 1:
Critically discuss the significance of the case cited below and provide reasons
why you agree or disagree with the judgment National Union of Metal and
Allied Workers of SA and Others v Bader Bop (Pty) Ltd (2003) 24 ILJ 305 (CC).
1.1. INTRODUCTION
The Constitutional court in National Union of Metal and Allied Workers of
South Africa and Others v Bader Bop1 grappled with the issues of pluralism
and limitations on the right to strike. The court was not faced with a set of
facts that included a collective agreement that contained a no-strike clause. In
Bader Bop members of a non-recognised minority, the union sought to
enforce organisational rights using a strike, although the Labour Relations Act
66 of 1995 (LRA) does not accord such rights to minority unions. The court,
however, leaned towards pluralism and the recognition of the fact that minority
trade union’s right to strike should not glibly be restricted if this can be
prevented by an alternative interpretation of the LRA.
1.2. FACTS
The facts of the case are as follows; Bader Bop manufactured leather
products for the automobile industry and at that time the company employed
approximately 1000 employees outside Pretoria. The General Industrial
Workers Union of South Africa (GIWUSA) represented the majority of Bader
Bops workers and enjoyed all the organisational rights in terms of Chapter III
of the LRA.
In terms of section 11 of the LRA, representative trade unions ‘that are
sufficiently representative of the employees by an employer in a workplace’
1
National Union of Metal and Allied Workers of SA and Others v Bader Bop (Pty) Ltd (2003) 24 ILJ 305 (CC).
, may claim one or more of the following rights at a workplace, namely, trade
unions access to an employer’s premises2; the deduction of trade union
subscriptions from their member’s pay3; and reasonable time off for trade
union officials to perform their functions of the office.4
It is clear from the above provisions that, at least in as far as the granting of
organisational rights is concerned, endorses a pluralist rather than a strict
majoritarian approach. Consequently, the LRA does further prescribe that two
of the organisational rights, namely, the right to elect trade union
representatives and the right to relevant information 5 are conferred only upon
those trade unions that have as members a majority of the employees
employed in the workplace.
In Bader Bop the National Union of Metalworkers of South Africa (NUMSA)
represented only 26% of the workers at the employer’s workplace.
Nonetheless, it claimed, amongst others, the right to elect shop stewards.
Even though the Bader Bop was willing to accord NUMSA access to its
premises and stop-order facilities, it was not willing to recognise the union’s
shop stewards. The Union declared a dispute at the Commission for
Conciliation, Mediation, and Arbitration (CCMA) over the acquisition of
organisational rights and informed the employer that it intended to commence
with strike action. Bader Bop contended that NUMSA could not strike as it
was not entitled to claim the organisational rights in question in terms of the
LRA. NUMSA argued, in any event, had the option of referring a dispute to the
CCMA in terms of section 21 of the LRA, procedure. Such an arbitration
process seeks to minimise the proliferation of trade unions in a single
workplace, by taking factors such as organisational history and the
composition of the workplace into account.6
2
Section 12 of the Labour Relations Act 66 of 1995.
3
Section 13 of the LRA.
4
Section 15 of the LRA.
5
Sections 14and 16 of the LRA.
6
Section 21(8) of the LRA; South African Clothing and Textile Workers Union v Marley (SA) (Pty) Ltd (2000) 21
ILJ 425 (CCMA); C Mischke ‘Getting a Foot in the Door’ (2004) 13 (6) CLL 51.
