Agency Shop Agreement Case Law

As stated above, the applicants claim that the loan agreement is unconstitutional. It is clear that the CCMA is not competent to decide on the legality or validity of agency shop contracts. Several judgments indicate that an agreement under Article 25 of the LRA is not immune to constitutional review (see MEC for Education, Kwa-Zulu-Natal and Others v Pillay 2008 (1) SA 474 (CC), paragraph 40, and City of Johannesburg and Others v Mazibuko and Others 2009 (3) SA 592 (SCA) and Investigation Directorate: serious economic offences inter alia: a.a./Hyundai Motor Distributeurs Ltd (Pty) Ltd and others against Smit NO and Others 2001 (1) SA 545 (CC)). Section 23(6) of the Bill of Rights (contained in the Constitution) provides: that national legislation may recognize union security agreements contained in collective agreements and that, to the extent that such legislation may restrict a right in the Bill of Rights, the restriction must be consistent with Article 36(1) of the Constitution (see more generally, Cheadle et al, South African Constitutional Law: The Bill of Rights (Edition 11, 2011) in 18-17, para. 18.5.2). The CCMA is competent only for the interpretation and application of a collective agreement in force (including an agency contract) within the meaning of Article 24(6) of the LRA (cf. NUMSA u. a./Highveld Steel and Vanadium Corporation Ltd [2002] 1 BLLR 13 (LAC) in rn. [21] and Annandale Building Materials (Pty) Ltd t/a Altocrete Brickworks and Another v NUM [2002] 11 BLLR 1058 (LC) at [40]). The applicants seek an order declaring the agency shop contract unlawful and void and for a prohibition preventing the defendants from performing the agency-boutique contract. The respondent argued, referring to that decision, that the Tribunal had been right to consider whether the determination of the legality or validity of a loan agreement in the language of Article 157(1) was a matter which `shall be determined elsewhere within the meaning of the [LRA] or within the meaning of another law by the Labour Court`, but argued: that the General Court had wrongly considered that jurisdiction had been taken, since it did.

namely that that court has `general supervisory powers`.. . . .