Chapter II: Freedom of Association and General Protections

4. Employees' right to freedom of association

1. Every employee has the right-

  1. to participate in forming a trade union or federation of trade unions; and
  2. to join a trade union, subject to its constitution.

2. Every member of a trade union has the right, subject to the constitution of that trade union-

  1. to participate in its lawful activities;
  2. to participate in the election of any of its office-bearers, officials or trade union representatives;
  3. to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office.
  4. 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 terms of this Act or any collective agreement.

3. Every member of a trade union that is a member of a federation of trade unions has the right, subject to the constitution of that federation-

  1. to participate in its lawful activities;
  2. to participate in the election of any of its office-bearers or officials; and
  3. to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office.

5. Protection of employees and persons seeking employment

1. No person may discriminate against an employee for exercising any right conferred by this Act.

2. Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following-

  1. require an employee or a person seeking employment-

    1. not to be a member of a trade union or workplace forum;
    2. not to become a member of a trade union or workplace forum ; or

    3. to give up membership of a trade union or workplace forum;

  2. prevent an employee or a person seeking employment from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or

  3. prejudice an employee or a person seeking employment because of past, present or anticipated-

    1. membership of a trade union or workplace forum;
    2. participation in forming a trade union or federation of trade unions or establishing a workplace forum;
    3. participation in the lawful activities of a trade union, federation of trade unions or workplace forum;
    4. failure or refusal to do something that an employer may not lawfully permit or require an employee to do;
    5. disclosure of information that the employee is lawfully entitled or required to give to another person;
    6. exercise of any right conferred by this Act; or
    7. participation in any proceedings in terms of this Act.

3. No person may advantage, or promise to advantage, an employee or a person seeking employment in exchange for that person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act.

However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.

4. A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 4, or this section, is invalid, unless the contractual provision is permitted by this Act.

6. Employers' right to freedom of association

1. Every employer has the right-

  1. to participate in forming an employers' organisation or a federation of employers' organisations; and
  2. to join an employers' organization, subject to its constitution.

2. Every member of an employers' organization has the right, subject to the constitution of that employers' organization-

  1. to participate in its lawful activities;
  2. to participate in the election of any of its office-bearers or officials; and

  3. if-

    1. a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office;
    2. a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.

3. Every member of an employers ' organisation that is a member of a federation of employers' organisations has the right, subject to the constitution of that federation-

  1. to participate in its lawful activities;
  2. to participate in the election of any of its office-bearers or officials; and

  3. if-

    1. a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office; or
    2. a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.

7. Protection of employers' rights

1. No person may discriminate against an employer for exercising any right conferred by this Act .

2. Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following-

  1. require an employer-

    1. not to be a member of an employers' organization;
    2. not to become a member of an employers' organization; or

    3. to give up membership of an employers' organisation;

  2. prevent an employer from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or

  3. prejudice an employer because of past, present or anticipated-

    1. membership of an employers' organization;
    2. participation in forming an employers' organisation or a federation of employers' organizations;
    3. participation in the lawful activities of an employers ' organisation or a federation of employers' organizations;
    4. disclosure of information that the employer is lawfully entitled or required to give to another person;
    5. exercise of any right conferred by this Act; or
    6. participation in any proceedings in terms of this Act.

3. No person may advantage, or promise to advantage, an employer in exchange for that employer not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.

4. A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 6, or this section, is invalid, unless the contractual provision is permitted by this Act.

8. Rights of trade unions and employers' organisations

1. Every trade union and every employers' organisation has the right-

  1. subject to the provisions of Chapter VI -

    1. to determine its own constitution and rules; and

    2. to hold elections for its office-bearers, officials and representatives;

  2. to plan and organise its administration and lawful activities;
  3. to participate in forming a federation of trade unions or a federation of employers' organizations;
  4. to join a federation of trade unions or a federation of employers' organizations, subject to its constitution, and to participate in its lawful activities; and
  5. to affiliate with, and participate in the affairs of, any international workers' organization or international employers' organization or the International Labour Organisation, and contribute to, or receive financial assistance from, those organizations.

9. Procedure for disputes

1. If there is a dispute about the interpretation or application of any provision of this Chapter, any party to the dispute may refer the dispute in writing to-

  1. a council, if the parties to the dispute fall within the registered scope of that council ; or
  2. the Commission, if no council has jurisdiction.

2. The party who refers the dispute must satisfy the council or the Commission that a copy of the referral has been served on all the other parties to the dispute.

3. The council or the Commission must attempt to resolve the dispute through conciliation.

If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

See flow diagram No. 1 in Schedule 4.

Burden of proof

1.In any proceedings-

  1. a party who alleges that a right or protection conferred by this Chapter has been infringed must prove the facts of the conduct; and
  2. the party who engaged in that conduct must then prove that the conduct did not infringe any provision of this Chapter.