Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - South Africa (Ratification: 1996)

The Committee notes the Government's first report, including the Constitution of the Republic of South Africa, Act 108 of 1996, and the Labour Relations Act No. 66 of 1995 attached thereto.

Article 2. The Committee notes that article 18 of the Constitution, 1996 provides that everyone has the right to freedom of association, and article 23 gives every worker the right to form and join a trade union. Slightly different wording is found in the Labour Relations Act, 1995 ("the Act"), which provides in section 4 that every "employee" has the right to form and join a trade union. Independent contractors (due to the definition of "employee" in section 213), however, are not entitled to exercise the rights under the Act. In its report, the Government states that the Act applies to civil servants and rural workers. Section 209 provides that the Act binds the State. While welcoming that the scope of the Act is much broader than under the previous legislation, the Committee requests the Government to indicate in its next report whether independent contractors can otherwise associate to further and defend their occupational interests.

The Committee further notes that the Act provides a system whereby "representative" trade unions are entitled to exercise a number of rights. For access to some of the organizational rights under Chapter III of the Act, to be considered "representative", a trade union (or two or more acting jointly) must have as members the majority of the employees employed by an employer in the workplace (section 14). One of the rights given to such trade unions is to assist and represent employees in grievance and disciplinary proceedings (section 14(4)(a)).While noting that the definition of "representative trade union" in section 14(1) permits unions to act jointly to gain a majority, the Committee requests the Government to inform it in its next report as to whether minority unions acting independently can represent their members in the case of individual grievances.

Articles 3 and 10 (Right to organize activities to further and defend interests). With respect to the right to strike, the Committee notes that the right is guaranteed under the Constitution (article 23(2)(c)), and that detailed provisions on strikes are found in Chapter IV of the Act. The Committee notes that pursuant to section 65, strikes are prohibited in a "maintenance service", which is narrowly defined (section 75). The Committee notes further that pursuant to section 75, where there is no collective agreement governing the matter, the Essential Services Committee as part of its determination of what is to be included in a particular situation as a maintenance service "may" decide that disputes in that service be referred to arbitration. The Committee requests the Government to indicate the avenues open for settling a dispute in a maintenance service where the Essential Services Committee does not refer the matter to arbitration.

Concerning essential services, which are defined in the Act in conformity with freedom of association standards and principles, the Committee requests the Government to inform it whether there is an appeal from the decision of the Essential Services Committee.

Finally, the Committee requests the Government to include with its next report a copy of the legislation currently in force governing criminal law, and to supply information on any measures taken or contemplated to bring the legislation into fuller conformity with the Convention.