Moksha Naidoo BA (Wits) LLB (UKZN) is a practicing advocate holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

Under the heading ‘Freedom of Association’ s 4(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) affords every employee the right to participate in lawful trade union activities. Section 5(2)(c)(iii) states that no person may prejudice or threaten to prejudice an employee or person seeking employment for past, present or anticipated participation in the lawful activities of a trade union.

Is the practice of employees wearing their trade union t-shirts at their workplace, considered a lawful trade union activity?

In October 2014 the employer Transnet adopted a clothing policy, which permitted employees wearing trade union t-shirts only if their trade union was a recognised union in the workplace. Employees were further advised that employees who breach this rule would be disciplined.

The applicant NUMSA was not a recognised union and sought to challenge the policy by way of launching an action at the Labour Court.

In June 2015 Transnet amended its policy to ban employees from wearing all trade union t-shirts irrespective of whether the union was recognised or not.

NUMSA amended its statement of claim and challenged the revised policy on various grounds, including the allegation that the policy breached its members rights as conferred by s 4(2)(a) and s 5(2)(c)(iii) of the LRA. NUMSA further argued that any disciplinary action taken against its members for breaching the policy, should be set aside.

Having heard the evidence of the party’s respective witnesses, the court identified the issue as being whether or not the impugned policy was constitutional and lawful. This in turn begged the question ‘whether the scope of protection in respect of participation in the lawful activities of a trade union can be said to extend to a right to wear a union t-shirt in the workplace.’

To answer this question the court turned to the Constitutional Court’s (CC) decision in National Union of Public Service and Allied Workers obo Mani and Others v National Lotteries Board 2014 (3) SA 544 (CC) and an earlier decision in National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another 2003 (3) SA 513 (CC).

In the National Lotteries case the CC held that the phrase ‘lawful activities’ as envisaged in s 5(2)(c)(iii) of the LRA should exclude any illegal activities and include any activity, which forms as a core function of a trade union.

In the earlier case of Transnet the CC, in giving meaning to the range of activities contemplated by the same phrase found that the right to freedom of association gave unions the right to recruit and organise its members.

Following these considerations, the court in casu held:

‘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.

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 ban, 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).’

The court did, however, state that there might well be grounds to justify a limitation of the right to freedom of association by wearing union t-shirts, for example where wearing the t-shirts might instigate violence among employees from competing unions. However, Transnet did not make out an argument justifying a limitation to the right of freedom of association; its reference to ‘risk management’ was not made to justify the policy but rather was a motive for the rule.

In light of the above the court ordered that Transnet’s clothing policy, and in particular the portion prohibiting the use of trade union t-shirts in the workplace, was in breach of ss 4(2)(a) and 5(2)(c)(iii) of the LRA and thus set aside. Furthermore, that any disciplinary action taken by Transnet against employees in breach of this specific portion of the policy, was in breach of s 5 and thus set aside. No order as to costs was made.

This article was first published in De Rebus in 2019 (JanFeb) DR 48.