National Union of Metalworkers of South Africa obo Its Members in the employ of the Respondent v Transnet SOC Ltd (JS427/15) [2018] ZALCJHB 352 (31 October 2018)

Principle:

The wearing of union T-shirts at work constitutes a lawful activity as contemplated by s 5 (2)(c)(iii) of the LRA, and the imposition of the union T-shirt ban constitutes a form of prejudice prohibited by that provision. But the exercise of the right to freedom of association by wearing a union T-shirt in the workplace is not unlimited, and there could be a justification to limit this for various reasons.

Facts:

Transnet adopted a corporate and protective clothing policy which, amongst other things, prohibited the wearing of 'political party clothing or non-recognised union regalia' during working hours. NUMSA was not then a recognised trade union and so the prohibition impacted directly on its members. Later the policy was changed to prohibit the wearing of all union clothing and regalia in Transnet's workplaces, regardless of whether the union concerned was recognised for collective bargaining or other purposes.

In this case the main issue was whether the workplace rule banning employees from wearing 'clothing or any other regalia of any sort of any political party or trade union ...during working hours' is constitutional, lawful, reasonable and valid. Did Transnet infringe the protections accorded by the right to freedom of association enshrined in Chapter II of the LRA?

The court started with constitutional principles: It said that the Constitution affords everyone the right of freedom of expression (s 16(1)). Section 18 affords the right of freedom of association. In the labour context, this right is affirmed in s 23 (2), which affords every worker the right to form and join a trade union, to participate in its activities and programmes, and to strike. Section 23 (4) confers on every trade union and employers' organisation the right to determine its own administration, programmes and activities and to organise.

Turning to the LRA, the LC focused on sections 4 and 5, which prohibit an employer from prejudicing an employee for participating in the lawful activities of a trade union. After considering the constitutional and labour rights involved, the LC held that the wearing of union t-shirts constitutes a lawful activity as contemplated by s 5 (2)(c)(iii) of the LRA. The imposition of the union t-shirt ban, with its underlying threat of disciplinary action for an infringement of the band, constitutes a form of prejudice prohibited by that provision. The LC said "the wearing of a t-shirt is an associative act and s 4 specifically protects an employee's right to freedom of association by joining trade unions and participating in its lawful activities".

The LC did qualify this by saying that the exercise of the right to freedom of association by wearing a union t-shirt in the workplace is not unlimited, and there could be a justification to limit this for various reasons. The judgment did not fully spell out what the limitations could be, apart from hinting at the following:

  • Where it impacts on safety: for example, employees engaged in work on tracks could be prohibited from wearing red clothing, on account of signals being the same colour and the potential for confusion that may arise.
  • In appropriate circumstances, inter-union rivalry and any associated violence in the workplace may justify intervention by an employer in the form of a limitation on the wearing of t-shirts and union insignia.

Extract from the judgment:

Van Niekerk J:

[27]   An earlier judgment by the Constitutional Court that gives meaning to the range of activities contemplated by the phrase 'lawful activities ' is National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd & Another 2003 (3) SA 513 (CC), where the Constitutional Court, in a case that concerns the rights of the minority union to embark on a protected strike action to persuade the employer to recognise it's shop stewards, conform to the important principle of freedom of association enshrined in Article 2 of the Convention on Freedom of Association and Protection of the Right to Organise which states:

'Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of the choosing without previous authorisation' (see paragraph 31 of the judgment).

Further, the Constitutional Court acknowledged that the ILO jurisprudence extends to the principle that freedom of association is ordinarily interpreted to afford unions the right to recruit members and to represent those members at least in individual workplace grievances. In other words, the statutory right to freedom of association extends to majority and minority unions, the right to recruit new members and the right to organise those members (at paragraph 34 of the judgment).

[28]   In the present instance, the wearing of trade union t-shirts in the workplace would be encompassed by each of the above activities. Trade union members would wear their t-shirts in the workplace as a form of promotion, aimed at recruiting new members. Unions would manufacture and distribute t-shirts as a component of their organising activities. Minority unions would wear a t-shirt as a component of their efforts to challenge majority unions by seeking to persuade members to associate with the minority union, with a view to it ultimately attaining majority.

[29]   In those circumstances, and having regard to the interpretation of s 5 (2) (c) (iii) adopted by the Constitutional Court, in my view, the wearing of union t-shirts constitutes a lawful activity as contemplated by s 5 (2) (c) (iii). The imposition of the union t-shirt ban, with its underlying threat of disciplinary action for an infringement of the band, constitutes a form of prejudice proscribed by that provision. In short, the t-shirt ban is unlawful and invalid with reference to s 5 (2) (c) (iii).

[30]   To the extent that s 5 (2)(c)(vi) proscribes an employer from prejudicing an employee on account of the exercise of any rights conferred by the LRA, the wearing of a union t-shirt constitutes a lawful activity under the LRA. This is particularly so in so far as the wearing of a t-shirt is an associative act and s 4 specifically protects an employee's right to freedom of association by joining trade unions and participating in its lawful activities. On this basis, the union t-shirt ban is also an infringement of s 5 (2) (c) (vi) and is invalid.

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[33]   This is not to say that the exercise of the right to freedom of association by wearing a union t-shirt in the workplace is unlimited. One can imagine a justification on the basis of a significant threat to safety, and a number of other reasons. Indeed, Matlou gave the example in his evidence of employees engaged in work on tracks being prohibited from wearing red clothing, on account of signals being the same colour and the potential for confusion that may arise. Transnet chose not to raise a plea of justifiability as a defence to NUMSA's claim. It is not necessary therefore for me to consider the factors that might serve as a rational justification for a limitation on or prohibition of the wearing of union t-shirts in the workplace. To the extent that Matlou in his testimony sought to justify the t-shirt ban on the basis of 'risk management', while he spoke about tension in the workplace occasioned by the split in SATAWU and the emergence of breakaway unions, I did not understand him to be proffering a rational justification for the limitation of a right rather than ascribing a motive for the new rule. I have no doubt that in appropriate circumstances, inter-union rivalry and any associated violence in the workplace may justify intervention by an employer in the form of a limitation on the wearing of t-shirts and union insignia (or even its prohibition in extreme cases), but that is not the case made in the present instance. Matlou testified in the most general terms regarding 'tension' in the workplace consequent on a split in the previously dominant unions. The pleadings aside, there is simply no evidentiary basis on which to make a finding that the limitation of the right to freedom of association, represented by the t-shirt ban, is reasonable and justifiable.

[34]   In view of the conclusion to which I have come on the application of sections 4 and 5 of the LRA, it is not necessary for me to make any findings in relation to the part of NUMSA's claim that concerns the discriminatory nature of what it alleges to be the inconsistent application of the rule prohibiting the wearing of union t-shirts. Specifically, it is not necessary for me to decide whether the failure to institute disciplinary action against members of unions other than NUMSA for a breach of the t-shirt ban constitutes unfair discrimination as defined by s 6 of the EEA.