How did the labour appeal court recently, in Solidarity obo members employed in the motor industry v Automobile Manufacturers Employers’ Organisation and Others (2019) 30 SALLR 41 (LAC), deal with issues surrounding the enforceability of agency shop agreements?
- in Greathead v SA Commercial, Catering & Allied Workers Union 2001 (3) SA 464 (SCA), paragraphs [12] and [22], the supreme court of appeal declared an agency shop agreement not in compliance with s25(3) of the LRA to be unenforceable. It rejected the notion that the requisite provisions may be incorporated by implication;
- the LRA requires an agency agreement specifically to provide for the matters prescribed in s25(3) of the LRA and the failure to so provide will render the agreement not binding and unenforceable;
- with regard to the retrospective amendment of the collective agreement by clause 2 of the second collective agreement, Solidarity relied on the following dicta of the supreme court of appeal in Greathead, at paragraph [13]:
‘The respondent submits that if the issue of non-compliance had been raised before the court a quo the respondent would have been entitled to seek rectification of the agreement to accord with the true agreement of the parties. The problem facing the respondent in this regard is that non-compliance with the provisions of s25(3) gives rise to an agreement which is formally invalid for want of compliance with statutory formalities. For these reasons the agreement is incapable of rectification.’;
- the concept of rectification is not the same as the concept of retrospective amendment of a collective agreement. Rectification is a remedy designed to correct the failure of a written contract to reflect the true agreement between the parties to the contract. It enables parties to give effect to their actual agreement (see, for example, Intercontinental Exports (Pty) Limited v Fowles 1999 (2) SA 1045 (SCA) at 1051H); and
- ……. – there is no express statutory prohibition on the retrospective operation of collective agreements. However, it is generally presumed that the law maker does not intend statutory instruments to be retrospective in their operation. The presumption is, of course, rebuttable, expressly or by necessary implication, even where the instrument impacts negatively on vested or existing rights (Curtis v Johannesburg Municipality 1906 TS 308).
