The evolution of the right to freedom of association

Abstract

Although individual jurisdictions have since developed their own nuances, the right to freedom of association in the labour context in jurisdictions acknowledging such a right stem from the Freedom of Association and Protection of the Right to Organise Convention 87, adopted by the International Labour Organisation (ILO) in 1948. In South Africa, this right is emphasised in ss 18 and 23 of the Constitution, with further regulation provided by the Labour Relations Act (LRA). Many of the provisions in the LRA can potentially raise issues, but this article focuses on its explicit expression in chapter II of the LRA. The article examines several contentious aspects of this chapter: the lack of a registration requirement for trade unions, the definition of ‘lawful activities’ for unions, an employee’s right to join a union ‘subject to its constitution,’ and whether a right not to associate can be inferred. It further considers the interface between the right to freedom of association and closed and agency shop agreements. The conclusion is that, despite South African courts generally adopting a liberal understanding of the right to freedom of association, their approach regarding employees’ rights to be represented by chosen trade unions has been surprisingly conservative.