Introduction
In the evolving landscape of collective labour law, employers often face challenges when Unions seek organisational rights in terms of the Labour Relations Act 66 of 1995 (“LRA”).
A recent judgment of the Labour Court in Singamandla and Others v South African Public Workers Trade Union and Others (Case No: 2025/085193), delivered on 1 August 2025, provides critical insights into the interplay between a Union’s right to strike and an employer’s ability to halt such strike action through a referral to arbitration.
The case highlights the constitutional protection of the right to strike and the limitations on an employer’s ability to interdict industrial action. For employers, particularly those utilising temporary employment services (“TES”) / labour brokers, the decision serves as a timely reminder of the need for careful compliance with procedural requirements of the LRA when navigating Union demands.
The applicants, comprising a TES provider and related entities contracted to Shoprite, sought to confirm an interim order interdicting a strike called by the South African Public Workers Trade Union (“SAPTWU”). SAPTWU had demanded organisational rights under sections 12 to 14 of the LRA, leading to a conciliation process at the Commission for Conciliation, Mediation and Arbitration (“CCMA”), which had failed to resolve the dispute.
Immediately after receipt of the certificate of outcome, the employer requested arbitration under section 21(7) of the LRA. Its apparent aim was to bar the strike under section 65(1)(c) of the LRA on the basis that the matter should proceed to arbitration. However, the Court ultimately ruled that the strike was protected, confirming the interim order only in respect of picketing and violence.
Labour Court
The Labour Court noted that the SAPTWU’s initial request for organisational rights did not fully comply with section 21(2) of the LRA, lacking details such as membership numbers and a certified registration certificate.
Central to the judgment was the interpretation of sections 21(7) and 65 of the LRA. Section 21(7) allows either party to request arbitration if conciliation fails, while section 65(1)(c) prohibits strikes over disputes of right that can be referred arbitration.
However, section 65(2)(a) also permits strikes over matters in sections 12 to 15 of the LRA which deals with organisational rights. SAPTWU could thus elect to claim organisational rights as a ‘dispute of right’, which would then be subject to an arbitration process, or alternatively to attempt to compel the employer to grant it organisational rights through strike action (i.e. a power-play).
The court rejected the applicants’ argument that their arbitration referral rendered the strike unprotected, emphasising that constitutional rights, such as the right to strike under section 23 of the Constitution, must not be unduly limited. Drawing on precedents from the Constitutional Court such as SA Transport & Allied Workers Union & Others v Moloto NO & Another (2012) and National Union of Metalworkers of SA & Others v Bader Bop (Pty) Ltd & Another (2003), the judgment stressed that implicit limitations cannot be read into the LRA to frustrate the right to strike.
The Court found the employer’s haste in referring the dispute to arbitration was indicative of an intent to undermine SAPTWU’s right to strike to secure organisational rights through strike action (a power-play), rendering such tactics impermissible. It clarified that the “issue in dispute” under section 65 relates to the substantive demand for organisational rights, not merely representativity, which could be arbitrated. Consequently, the applicants failed to establish a clear right to interdict the strike.
Conclusion
This judgment reinforces the robust protection of the right to strike in disputes over organisational rights, limiting employers’ ability to use arbitration referrals as a shield against industrial action.
Key takeaways for employers include ensuring union requests for rights comply strictly with section 21 of the LRA, as procedural defects may not bar strikes if the employer’s response appears obstructive. Employers should genuinely engage during conciliation to avoid perceptions of bad faith and prepare for potential strikes by establishing picketing rules early or via collective agreements.
In multi-employer setups like TES arrangements, clarity on client relationships is essential to prevent disputes over employer identity. Ultimately, proactive negotiation and compliance with LRA processes can mitigate risks, preserving operational stability while respecting constitutional imperatives. Employers are advised to consult specialists when facing similar demands to strategise effectively within these
constraints.
