Closed shop agreements are provided for in section 26 of the Labour Relations Act (“LRA”), and are perhaps one of the the most thorny provisions of the LRA, and the most controversial in so far as the constitutionality of such agreements I concerned.

Put differently, the employer agrees to only hire union members.

In short, a closed shop agreement is a collective agreement whereby a majority trade union, and an employer, agree that it is a condition of employment that all employees must be members of the majority trade union.

Belonging to the union that they have signed the closed shop agreement with.

Such agreements attract attention for a host of reasons, and in some quarters are considered to contravene the freedom of association provisions of the LRA, and section 18 of the Consitution, which addresses the right to join or leave groups of a person’s own choosing.

Closed shop agreements were not included in the initial draft of the current LRA in the early 1990’s.  They were however subsequently included under pressure from union federations, notwithstanding the fact that they have been outlawed in many other western democracies.

The closed shop agreement provisions of the LRA do however build in certain, at best, safeguards, when an employer and a majority trade union are contemplating entering into a closed shop agreement.

For example, a closed shop agreement may only be concluded with a majority trade union.  Furthermore, employee’s who are not members of the union when the agreement is signed, need not become union members, although all  new employees thereafter are required to join the union in order to secure employment with the employer.

A two-thirds majority of existing union members, supporting the closed shop agreement, is required.

It’s quite clear why an employer would elect not to enter into such an agreement.  Most employers view closed shop agreements, perhaps correctly, to be reprehensible.  Why should we give one union the right to have all our employees become members their members they ask; furthermore, why should we agree to this what’s more becoming a condition of employment?

This is precisely why closed shop agreements are so rare in South Africa, and indeed elsewhere.

On the other hand, they do in fact have virtues.  This is why we have recently seen something of a revival in closed shop agreements locally of late.  Why is this you may ask?

Well, it has to do with our increasing levels of union rivalry.

Some established trade unions who fear the entrance and influence of newer trade unions, have been seeking to enter into closed shop agreements in order to frustrate the entry of newer trade unions, think AMCU and LAMUSA, into their historical strong holds.

The only, and to some degree compelling, reason why an employer may agree to, and possibly welcome closed shop agreement, is to limit on site union rivalry, as the incumbent union, in essence, monopolises the employer’s employee’s union membership, via the closed shop agreement.

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