I am currently researching and trying to get a clear understanding of registration with bargaining councils. In particular, I'm trying to get a clearer understanding around the concept of compulsory registration.

Now to give some sort of background to this, where a bargaining council is successfully established to the extent that the collective agreement becomes binding on non-parties, it is common practice to write into the collective agreement that all employers and employees in that sector need to register with the bargaining council. My question is whether such a stipulation is actually lawful. Either in terms of the Labour Relations Act or perhaps even the Constitution.

I'm going to argue this from an employer point of view, but essentially the principle remains the same from an employee point of view too.

First, let's pull out some parts of legislation from the Labour Relations Act No. 66 of 1995, as amended by
Labour Relations Amendment Act, No 42 of 1996
Proclamation, No 66 of 1996
Labour Relations Amendment Act, No 127 of 1998, and
Labour Relations Amendment Act, No 12 of 2002

Chapter II Deals with FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS and the part on Employers is as follows:

6. Employers' right to freedom of association
(1) Every employer has the right -

(a) to participate in forming an employers' organisation or a federation of employers' organisations; and

(b) to an employers' organisation, subject to its constitution.

(2) Every member of an employers' organisation has the right, subject to the constitution of that employers' organisation-

(a) to participate in its lawful activities;

(b) to participate in the election of any of its office-bearers or officials; and

(c) if-

(i) a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office;

(ii) a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.

(3) Every member of an employers' organisation that is a member of a federation of employers' organisations has the right, subject to the constitution of that federation-

(a) to participate in its lawful activities;

(b) to participate in the election of any of its office-bearers or officials; and

(c) if –

(i) a natural person, to stand for election and be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office; or

(ii) a juristic person, to have a representative stand for election, and be eligible for appointment, as an office-bearer or official and, if elected or appointed, to hold office.

7. Protection of employers' rights

(1) No person may discriminate against an employer for exercising any right conferred by this Act.

(2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following-

(a) require an employer-

(i) not to be a member of an employers' organisation;

(ii) not to become a member of an employers' organisation; or

(iii) to give up membership of an employers' organisation;

(b) prevent an employer from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or

(c) prejudice an employer because of past, present or anticipated-

(i) membership of an employers' organisation;

(ii) participation in forming an employers' organisation or a federation of employers' organisations;

(iii) participation in the lawful activities of an employers' organisation or a federation of employers' organisations;

(iv) disclosure of information that the employer is lawfully entitled or required to give to another person;

(v) exercise of any right conferred by this Act; or

(vi) participation in any proceedings in terms of this Act.

(3) No person may advantage, or promise to advantage, an employer in exchange for that employer not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.

(4) A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 6, or this section, is invalid, unless the contractual provision is permitted by this Act.
This raises the first question to clarify:

The Labour Relations Act clearly gives power to and protects the right to membership of an employers' organisation. In so doing, does it not also recognise the right not to associate with an employers' organisation?
Freedom of Association is a Constitutional Right which empowers us with choice in this matter, surely.

(End part 1)