NUMSA v Bader Bop

In NUMSA v Bader Bop, an important case in South African labour law, the National Union of Metalworkers of South Africa (NUMSA) requested of the employer, Bader Bop, that it be granted the organisational rights in sections 12 to 15 of the Labour Relations Act. The union had less than fifty per cent representivity within the workplace.

The employer took the view that, although it was prepared to grant access and stop-order facilities, it was not prepared to recognise the union's shop stewards.

Since the union did not have majority representation, it could not compel the employer to grant this right in terms of the procedure in section 21 of the LRA, so the union gave notice, instead, that it would embark on strike action to acquire this right.

The issue before the courts was whether or not such a strike would be permitted in terms of the LRA. The lower courts were divided, the Labour Appeal Court holding that minority unions could not strike for such a right because,

• once the union has conceded that it lacks a majority, there is no dispute over which to strike; and
• such a strike would be hit by section 65(1)(c) of the Labour Relations Act (LRA), which prohibits strikes over disputes that either party may refer to arbitration.

This judgment was overturned by the Constitutional Court, which held that the minority unions may strike in support of demands for organisational rights to which they are not entitled under the LRA.

The Constitutional Court found nothing in section 20 of the LRA which precludes a collective agreement granting collective-bargaining rights, even if the qualification for representativity is not met.

The court's interpretation of this was that, if a minority union asks for, but does not succeed in acquiring, the organisational rights in question, and if conciliation subsequently fails, the dispute-resolution mechanism is to strike for it.

This judgment has been severely criticised.