UASA -The Union and Another v BHP Billiton Energy Coal South Africa and Another (JS1082/09) [2012] ZALCJHB 97; [2013] 1 BLLR 82 (LC); (2013) 34 ILJ 1298 (LC) (7 May 2012)

UASA -The Union and Another v BHP Billiton Energy Coal South Africa and Another (JS1082/09) [2012] ZALCJHB 97; [2013] 1 BLLR 82 (LC); (2013) 34 ILJ 1298 (LC) (7 May 2012)

The Labour Court has jurisdiction to determine the lawfulness or validity of an agency shop agreement under section 77(1) and 77(2) of the BCEA, which qualifies as 'any other law' under section 157(1) of the LRA. The applicants' claim for a declaration of invalidity and reimbursement of deducted monies falls within this jurisdiction. However, the constitutional challenge to the agency shop agreement is not competent unless the applicants also challenge the constitutionality of section 25 of the LRA itself. The principle of constitutional subsidiarity requires litigants to rely on legislation enacted to give effect to constitutional rights or to challenge that legislation directly, rather...

Citation
[2012] ZALCJHB 97
Parties
Applicant: UASA – THE UNION; Applicant: Association of Mineworkers and Construction Union; Respondent: BHP Billiton Energy Coal South Africa Limited; Respondent: National Union of Mineworkers
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
7 May 2012
Case Number
JS1082/09
Procedural Posture
Labour Court Application / Points in Limine Before Trial
Outcome
First point in limine (jurisdiction) dismissed; second point in limine (constitutional challenge) upheld.
Judges
AC Basson
Legal Topics
Agency Shop Agreement, Labour Court Jurisdiction, Constitutional Challenge, Deductions From Remuneration
Labour Law Agency Shop Agreement Labour Court Jurisdiction Constitutional Challenge Deductions From Remuneration

Case Brief

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Parties

UASA – THE UNION

Applicant

Association of Mineworkers and Construction Union

Applicant

BHP Billiton Energy Coal South Africa Limited

Respondent

National Union of Mineworkers

Respondent

Procedural Posture

Labour Court Application / Points in Limine Before Trial

Legal Issues

  1. 1 Does the Labour Court have jurisdiction to determine the lawfulness or validity of an agency shop agreement under section 25 of the LRA?
  2. 2 Can an agency shop agreement be challenged as unconstitutional without attacking the constitutionality of section 25 of the LRA itself?

Ratio Decidendi

The Labour Court has jurisdiction to determine the lawfulness or validity of an agency shop agreement under section 77(1) and 77(2) of the BCEA, which qualifies as 'any other law' under section 157(1) of the LRA. The applicants' claim for a declaration of invalidity and reimbursement of deducted monies falls within this jurisdiction. However, the constitutional challenge to the agency shop agreement is not competent unless the applicants also challenge the constitutionality of section 25 of the LRA itself. The principle of constitutional subsidiarity requires litigants to rely on legislation enacted to give effect to constitutional rights or to challenge that legislation directly, rather...

Court Disposition

First point in limine (jurisdiction) dismissed; second point in limine (constitutional challenge) upheld.

Orders

  • The first point in limine is dismissed.
  • The second point in limine is upheld.