Abstract
The history of South African labour law is tainted with unfair labour practices. Transformative constitutional strategies revolutionised these practices and how labour law was viewed. Adopting a human rights-based approach in regulating workplaces requires governing labour laws are constantly scrutinised with these constitutional stipulations.
This study evaluates the constitutionality of union security arrangements and how section 18 of the constitution, freedom of association affects it. This will show how trade unions have been able to reinforce their power in the workplace. This includes evaluating the practices of closed shop and agency shop agreements and their legal framework. These closed shop agreements are most commonly objected to under section 18 which enshrines the freedom of association. Additionally, section 36 outlining the general limitation clause plays a major role in the constitutional scrutiny of union security arrangements in this legal analysis.
Using a comparison to the German legal system and the German Federal Labour Court, the Constitutional Court’s understanding of freedom of association is complicated under international standards. This comparison allows further recommendations for the South African legal system to be considered.