Greathead, Brian Courtney v South African Commercial Catering & Allied Workers Union

The respondent trade union concluded an agency shop agreement with Metcash Trading Limited in terms of section 25 of the Labour Relations Act 66 of 1995. The agreement required Metcash to deduct agency fees from non-union employees and remit them to the union. The appellant, an employee of Metcash and a non-union member, objected to the agreement, contending that it infringed his constitutional rights. He applied to the Witwatersrand Local Division for an order declaring the agreement unenforceable. The High Court dismissed the application, holding that the challenge was directed only at the agreement and not at the constitutionality of section 25 of the Act. On appeal to the Supreme Court of Appeal, the court raised, mero motu, the issue whether the agreement complied with the mandatory requirements of section 25(3) of the Act.

The appeal was upheld. The agency shop agreement concluded on 2 July 1997 was declared unenforceable. No order was made as to the costs of appeal, but the respondent union was ordered to pay the appellant’s costs in the court a quo, including the costs of two counsel.

The case is significant for clarifying that agency shop agreements under the Labour Relations Act must strictly comply with the mandatory requirements of section 25(3) to be valid. It underscores that failure to meet statutory formalities renders such agreements invalid and incapable of rectification. The judgment also affirms the principle of constitutional avoidance and confirms that appellate courts may raise and decide decisive points of law mero motu where the facts are common cause.