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[2020] ZALAC 63
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Association of Mineworkers and Construction Union v UASA - The Union and Others (JA52/2019) [2020] ZALAC 63; (2021) 42 ILJ 327 (LAC) (13 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
REPORTABLE
Case
no: JA 52/2019
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION Appellant
and
UASA
-THE
UNION First
Respondent
SOLIDARITY Second
Respondent
NATIONAL
UNION OF MINEWORKERS Third
Respondent
WESTERN
PLATINUM (PTY)
LTD Fourth
Respondent
EASTERN
PLATINUM (PTY)
LTD Fifth
Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION Sixth
Respondent
COMMISSIONER
E HAMBIDGE N.O. Seventh
Respondent
Heard:
20
August 2020
Delivered:
13
November 2020
Summary:
Trade
union—Membership— Unions seeking organisational rights
must prove memberships ---Failure to provide memberships
depriving
arbitrator of factual basis to determine level of representivity
.
Coram:
Davis JA, Coppin JA and Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1]
This
is an appeal against the judgment and order of the Labour Court (Gush
J) dismissing the appellant’s (“AMCU”)
review
application against the arbitration award of the seventh respondent
(“arbitrator”) in which she awarded organisational
rights
referred to in section 12
[1]
,
13
[2]
and 15
[3]
of the Labour Relations Act 66 of 1995 (“LRA”) to the
first, second and third respondents (“Coalition”).
Background
[2]
The
facts in this matter are largely common cause. For many years, the
third respondent, National Union of Mineworkers (“NUM”),
was the majority union at Eastern Platinum Ltd and Western Platinum
Ltd (“Lonmin”). On AMCU becoming the majority union,
it
concluded a recognition agreement with Lonmin on 14 August 2013
(“2013 Recognition Agreement”) which constituted
a
threshold agreement as contemplated in s 18
[4]
of the LRA.
[3] In
the 2013 Recognition Agreement, Lonmin and AMCU agreed as follows:
‘
Any other trade
union having membership representation of at least 30% of all
employees within the recognition unit will be afforded
the rights set
out in section 12 and 13 of the Act.’
and
‘
The parties agree
that any other trade union having membership representation of at
least 40% of all employees within the recognition
unit will be
afforded rights set out in section 12, 13, 14 and 15 of the Act and
collective bargaining rights. Collective bargaining
rights so
obtained shall be for categories A to C4.’
[4] On
conclusion of the 2013 Recognition Agreement with AMCU, Lonmin
terminated its prior recognition agreement
with NUM.
[5]
In
August 2014, Lonmin entered into limited organisational rights
agreements with UASA and Solidarity, respectively. It cancelled
both
these agreements with effect from 5 November 2017.
[5]
[6] A
coalition was formed between NUM, UASA and Solidarity for purposes of
seeking organizational rights at Lonmin.
The Coalition made a request
to Lonmin, in terms of section 21 of the LRA, to be granted
organisational rights referred to in sections
12 , 13 and 15 of the
LRA.
[7] Lonmin
did not grant the Coalition the requested organisational rights.
Consequently, on 1 March 2018, the
Coalition referred an
organisational rights dispute to the CCMA for conciliation. The
conciliation was unsuccessful, and the Coalition
referred the dispute
to arbitration.
The
Arbitration Proceedings
[8]
The
arbitration hearing took place from 18 to 22 October 2018. At the
arbitration proceedings, the Coalition sought organisational
rights
in terms of section 21(8C)
[6]
of
the LRA on the grounds of a significant interest or a substantial
number of employees in the workplace.
[9] On
the first day of the arbitration hearing (18 October 2018), the
parties concluded a pre-arbitration minute
in terms of which they
reached the following agreement:
‘
2 Agreed
numbers
2.1 The
current total permanent workforce at Lonmin’s Marikana
Operations which excludes Limpopo operations
and the Brakpan
Refinery, is 22689 of which:
2.1.1 18969
are AMCU members:
2.1.2 1067
were NUM members as at 31 October 2017;
2.1.3 735
(263) were Solidarity members as at 31 October 2017; and
2.1.4 475
were UASA members as at 31 October 2017.
2.2 There
are currently 3247 employees in categories C and D at Lonmin’s
Marikana Operations of which:
2.2.1 1002
are AMCU members
2.2.2 225
were NUM members as at 31 October 2017;
2.2.3 686
were members of Solidarity as at 31 October 2017;
2.2.4 417
were members of UASA as at 31 October 2017.
2.3 There
were a further 62 employees in category C and D who are currently
members of AMCU of which:
2.3.1 8
were members of NUM as at 31 October 2017.
2.3.2 27
were members of Solidarity as at 31 October 2017;
and
2.3.3 27
were members of UASA as at 31 October 2017.’
[10] It
was common cause that the workplace constitutes Lonmin’s
Marikana Operations and excludes the Limpopo
Operations and the
Brakpan Refinery.
[11] The
arbitrator issued her award on 31 October 2018 in terms of which she
granted organisational rights referred
to in sections 12, 13 and 15
of the LRA to the Coalition. In granting these rights to the
Coalition, the arbitrator acknowledged,
that “it was not in
dispute that the workplace consists of Eastern Platinum Limited and
Western Platinum Ltd (the Marikana
Operation) which exclude its
Limpopo Operations and Brakpan Refinery”.
[12] She
concluded that the union membership numbers that she was required to
consider were as follows as per the
minutes of the pre-arbitration
agreement:
‘
Accordingly, I am
satisfied that the Union membership numbers as presented hereunder,
can be relied upon.
Agreed numbers as per
the arbitration minute:
Current total workforce
at Lonmin: 22689 of which 18969 are AMCU members;
As at 31 October 2017:
1067 - NUM members;
As at 31 October 2017:
735 - Solidarity members;
As at 31 October 2017:
475 UASA – members.
Currently 3247 employees
in categories C and D at Lonmin.
1002 are AMCU- members;
As at 31 October 2017:
255 NUM - members;
As at 31 October 2017:
686 Solidarity - members;
As at 31 October 2017:
417 UASA - members.
As to the position in
relation to categories C and D
31% of employees in C and
D categories: AMCU – members;
41% of employees in C and
D categories were historically members of the Coalition Union's as at
31 October 2017.’
[13] In
finding that the Coalition represented a substantial number of
employees in the workplace and affording
them rights referred to in
section 12, 13 and 15 of the LRA, the arbitrator concluded as
follows:
‘
I am inclined to
find that the Coalition has made out that it represents a substantial
number of employees in the workplace, which
fall within categories C
and D. This is especially so relative to the number of employees in
those categories who are represented
by AMCU.
As to whether the
Coalition represents a significant interest in the workplace, I find
there is no need to express an opinion thereon.’
In
the Labour Court
[14] Dissatisfied
with the award, AMCU sought an order in the Labour Court, on a
semi-urgent basis,
inter alia
, reviewing and setting aside the
arbitration award and substituting it with an order dismissing the
Coalition’s application
for organisational rights.
Alternatively, that its organisational rights dispute be referred
back to the CCMA for determination
before another arbitrator.
[15] The
application was opposed by the Coalition. Lonmin elected not to
oppose the review application but rather
to abide by the decision of
the Labour Court.
[16] On
3 April 2019, the Labour Court dismissed the review application with
no order as to costs. In doing so,
it reasoned as follows:
‘
[P]rior to the
commencement of the arbitration, the parties entered into a pre-
arbitration agreement and recorded the agreement
in a minute. In this
minute, the parties specifically agreed that for purposes of the
arbitration that commenced on 18 October
2018, the membership of the
Coalition was determined, agreed and recorded in the minute. In
particular, it was specifically agreed
between the parties that the
membership figures as at 31 October 2017 would be accepted for
purposes of the arbitration.’
[7]
[17]
Later
in the judgment, the Labour Court expressed the view that both
parties appeared to have lost sight of the fact that in preparation
for the arbitration and “
for
the purposes of the arbitration”,
they
had expressly recorded their agreement, on the membership numbers of
both the Coalition and [AMCU] in the pre-arbitration minute.
[8]
In the circumstances, the Labour Court held that:
‘
[T]he Arbitrator
was entitled to take into account the employment figures the parties
had agreed on for purposes of determining
the dispute. It would make
no sense for the parties to agree on the membership figures, place
that agreement before the arbitrator
and then seek to deviate from it
by disputing what they had expressly agreed to. It might well have
been a different proposition
had either party disputed the number of
members.
I am satisfied that the
arbitrator, in the circumstances, properly dealt with the challenge
raised by [AMCU] in respect to the figures
and that this ground of
review is without merit. The The arbitrator’s application of
the MacDonald's judgment does not alter
the relevance or importance
of the agreement the parties reached prior to the commencement of the
arbitration expressly f
or
the purposes of the arbitration
.
’
[9]
[18] In
relation to AMCU’s final ground of review namely, that the
arbitrator misunderstood the significance
of the number of employees
and the categories in which they fell as recorded in the
pre-arbitration minute, the Labour Court held
as follows:
‘
This ground of
review is similar to the first ground of review argued by [AMCU]. It
is premised not only on [AMCU’s] misunderstanding
of what
constitutes a workplace, but also [AMCU’s] apparent disregard
of the agreement reached concerning the number of employees
represented in the various categories as set out in the
pre-arbitration minute. There is no doubt that the arbitrator
concluded,
based on the figures contained in the pre-arbitration
minute, that the coalition had succeeded in establishing that it
represented
a substantial number of employees within the workplace
albeit specifically within categories C and D.’
[10]
[19] The
appeal lies against the judgment and order of the Labour Court with
its leave.
Test
on Review
[20]
The
test on review is well established. It is whether “the decision
reached by the arbitrator is one that a reasonable decision-maker
could not reach?”
[11]
The
Parties’ Contentions
[21]
AMCU’s
primary contention on appeal is that the Labour Court erred in
dismissing its review application because the decision
of the
arbitrator was not reasonable as contemplated in
Sidumo
[12]
as she, amongst other things, applied the wrong test in determining
whether to grant organisational rights to the Coalition. It
argues
that the test that the arbitrator ought to have applied is whether or
not the Coalition represents a substantial number
of employees in the
workplace. However, it is clear from the arbitration award that for
purposes of determining this question,
the arbitrator considered the
number of members the Coalition had in the C and D categories only as
at 31 October 2017. She proceeded
from a finding that relative to
AMCU, the Coalition has a substantial number of members in the C and
D categories and came to the
incorrect (and unreasonable) conclusion
that the Coalition has a substantial number of members in the
workplace. The arbitrator’s
decision was unreasonable for the
further reason that she determined the representivity of the
Coalition based on its membership
as at 31 October 2017, whereas she
was required to determine this as at 18 October 2018 (date of
commencement of the arbitration
hearing). Accordingly, AMCU contends
that the Labour Court erred in endorsing the arbitrator’s
finding on the mistaken view
that that is what the parties agreed to
in their pre-arbitration agreement.
[22] To
the contrary, the Coalition argues that the arbitrator applied the
correct test as set out in section
21(8C)(b) of the LRA and
understood precisely what constituted the workplace. It argues that
the reference in the last three lines
of the arbitration award to
“[members] who fall within categories C and D” is merely
descriptive suggesting that the
Coalition has a substantial number of
members in those categories as opposed to the workplace as a whole.
Additionally, the arbitrator
was entitled to accept the membership
numbers of the Coalition as at 31 October 2017. Accordingly, it
argues that the decision
of the arbitrator is one that a reasonable
decision-maker could have reached, hence the Labour Court was correct
in dismissing
the review application against it.
Analysis
[23] It
is common cause that the Coalition did not meet the thresholds of
representativeness established by the
2013 Collective Agreement in
terms of section 18 of the LRA. Before granting the Coalition the
rights referred to in sections 12,13
and 15 of the LRA, the
arbitrator was required, in terms of section 21(8C)
(b)
of the
LRA, to determine whether the Coalition represents “a
significant interest, or a substantial number of employees in
the
workplace”. The word “workplace” is defined in
section 213 of the LRA as follows:
‘
(c) In all other
instances means the place or places where the employees of an
employer work. If an employer carries on or conducts
two or more
operations that are independent of one another by reason of their
size, function or organisation, the place or places
where employees
work in connection with each independent operation, constitutes the
workplace for that operation.’
[24] It
is common cause that the workplace in regard to which the
Commission’s determination had to be made
was Lonmin’s
Marikana Operations (Eastern and Western Platinum) and excluding the
Limpopo Operations and the Brakpan Refinery.
The workplace was not
employees who fall within categories C and D. This notwithstanding,
the arbitrator found that the Coalition
represents a substantial
number of employees in the workplace, who fall within categories C
and D.
[25] Although
the Coalition has a substantial number of members in categories C and
D, this cannot suggest that
the Coalition represents a substantial
number of members in the workplace overall. Such an approach is
unsustainable on the overall
membership numbers as per the
pre-arbitration agreement. Of the 22689 employees in the workplace,
only 2277 were Coalition members
as at 31 October 2017. This is a
mere 10% as compared to AMCU’s 18969 members which constituted
84% of the workplace as at
18 October 2018. The Labour Court
accordingly erred in upholding the arbitrator’s factual
conclusion that the Coalition represents
a substantial number of
employees in the workplace, who fall within categories C and D.
[26] Moreover,
the Labour Court ought to have recognised that these were the
membership numbers of the Coalition
at 31 October 2017 and not 18
October 2018. As already alluded to, the arbitrator was required to
determine the membership of the
Coalition as at 18 October 2018 (date
of commencement of the arbitration hearing). Although the
pre-arbitration minute, recording
the agreed membership of the
Coalition as at 31 October 2017, was before the arbitrator at the
arbitration hearing, there was no
agreement between the Coalition and
AMCU as to the Coalition’s membership as at 18 October 2018.
The Coalition had to therefore
establish its membership as at that
date.
[27] Crucially,
without the Coalition’s membership numbers as at 18 October
2018, the arbitrator was simply
in no position to determine whether
the three minority unions, acting jointly, represented a substantial
number of employees in
the workplace as contemplated in section
21(8C)
(b)
of the LRA. The arbitrator, however, adopted the
view that the agreed membership as at 31 October 2017 reflected the
Coalition’s
current membership as at 18 October 2018. In
arriving at this conclusion, she reasoned as follows:
‘
Based on the
above, it is therefore my finding that although the membership
numbers of the Coalition date back to 31 October 2017,
such is
reliable in that those employees who have been dismissed or resigned
or have dual membership have been disregarded for
purposes of
establishing representativeness of the three minority Unions. Also,
the matter was referred for conciliation as early
as March 2018 and
the arbitration was previously postponed by the CCMA on 12 June 2018
due to the unavailability of some representatives
and the matter was
thereafter re-enrolled for 7 and 8 August 2018. On 7 August 2017, I
had dismissed a point in limine raised by
Lonmin and declined a
request for postponement brought by AMCU. When the matter came before
me on 18 October 2018, I understood
there was an agreement on
membership numbers enjoyed by the Coalition, but on 22 October 2018,
a point in limine was raised in
relation of thereto. It is simply not
practical to re- embark on a verification exercise every time a
matter is rescheduled for
arbitration, as such may become a delaying
tactic. ‘
[28]
However,
this was not the agreement between the parties as recorded in the
pre-arbitration minute. Moreover, the membership of the
Coalition as
at 31 October 2017 could not have been the membership a year later,
in October 2018. To the extent that the Coalition’s
membership
numbers were disputed by AMCU at the outset, and that the Coalition
had failed to provide the arbitrator with its membership
numbers at
the commencement of the arbitration hearing, the arbitrator was
required to invoke her powers under section 21(9)
[13]
of the LRA to
inter
alia
make
the necessary enquiries to determine the Coalition’s
membership. She failed to do this.
[29] Although
AMCU had accepted that as at 31 October 2017, none of the members of
the three minority unions (NUM,
Solidarity and UASA) that formed the
Coalition had received resignation forms from their members, this
does not support the inference,
contended for by the Coalition, that
the membership of each of the minority unions remained the same a
year later. The membership
figures as at 31 October 2017 cannot be
relied on by the Coalition to show its level of representivity as at
18 October 2018.
[30] Nor,
for that matter, can it rely on the
ex post facto
resolutions
taken by the executive committees of Solidarity and NUM respectively,
to the effect that Lonmin’s employees who
had failed to pay
their union subscriptions (for whatever reason) remain members of the
respective unions pending the outcome of
the organisational rights
dispute. Notably, by the time these resolutions were taken by
Solidarity and UASA on 6 August 2018 and
11 October 2018,
respectively, the membership of those members, who failed to pay
their membership subscriptions, had terminated
automatically by
operation of the unions’ respective constitutions and
could not be revived by these resolutions.
[31]
The
arbitrator was, therefore, correct in finding that on a strict
interpretation of the constitutions of Solidarity and UASA, by
the
time their resolutions were passed, the membership of those members
who ceased to pay their trade union dues, had already terminated.
This notwithstanding, she found that it is “not for an employer
or another union to second-guess or interfere in the internal
arrangements of a union”. The arbitrator cited
MacDonald’s
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union & others
[14]
in support of this finding. However, as persuasively contended by
AMCU, she erred in doing so because, in that case, this Court
specifically differentiated between the scenario in which employees
are seeking to be represented by a union in litigation proceedings,
and that in which a union is seeking organisational or collective
bargaining rights.
[15]
Additionally,
MacDonald’s
is not
authority for the proposition that, in the context of an
organisational rights dispute, the employer or another union cannot
challenge the internal arrangements of the union where it disputes
their membership.
[32] Where
minority unions are seeking to establish their entitlement to
organisational rights, they must prove
their membership. This is a
factual question. Thus, were it impermissible for an employer or
another union to challenge the internal
arrangements of minority
unions by disputing their membership, then it will be open to these
unions to pass
ex post facto
resolutions, as Solidarity and
UASA have done in this case, to artificially preserve or inflate
their union membership for purposes
of being granted organisational
rights. This would be untenable.
[33] Fundamentally,
in the circumstances where members as at 31 October 2017 ceased to be
members thereafter by
operation of the law, AMCU was fully entitled
to challenge the internal arrangements of the Coalition by disputing
its membership.
Moreover, that some members of Solidarity changed
from stop orders to debit orders, whereas the majority did not do so
as at 31
October 2017, supports the inference that they (the
majority) accepted the termination of their membership as they did
not wish
to remain members of Solidarity. Consequently, the
ex
post facto
resolutions, taken by Solidarity and UASA
respectively, ought to have been rejected by the arbitrator as they
do not prove that
the Coalition’s membership as at 31 October
2017, remained current as at the commencement of the arbitration
hearing (18
October 2018).
[34] The
Labour Court effectively replicated the arbitrator’s error in
finding that prior to the commencement
of the arbitration, the
parties entered into a pre- arbitration agreement in which “it
was specifically agreed between the
parties that the membership
figures as at 31 October 2017 would be accepted for the purposes of
the arbitration”. On the
basis of this error, the Labour Court
found that the arbitrator was entitled to take into account the
employment figures which
the parties had agreed on for purposes of
determination of the dispute. It accordingly found this ground of
review to be without
merit.
[35] The
Labour Court erred in arriving at this conclusion. A perfunctory
reading of the pre-arbitration minute
by the Labour Court would have
readily clarified that the agreement was limited to the Coalition’s
historical membership
numbers as at 31 October 2017 and AMCU’s
current membership numbers as at 18 October 2018. Crucially, in this
regard, the
Coalition has furnished no explanation for why it was
unable to furnish documentary proof of its membership as at the time
of the
referral of the dispute to the CCMA on 1 March 2018,
alternatively 18 October 2018. In the circumstances, the Coalition
did not
discharge its onus to prove its membership numbers at the
commencement of the arbitration hearing.
[36] All
things considered, the Labour Court erred in failing to find that the
conclusion arrived at by the arbitrator,
that the parties had agreed
to the Coalition’s membership numbers as at the date of the
arbitration hearing, and that the
workplace constituted employees who
fall within categories C and D, was so unreasonable that no
reasonable arbitrator would have
arrived at such a decision.
Remedy
[37] At
the hearing of the review application in the Labour Court, the
parties agreed that in the event that the
court found that the
arbitration award was reviewable, the dispute was to be referred back
to the CCMA to be heard by a new commissioner.
This notwithstanding,
during argument in the appeal, counsel for AMCU submitted that an
appropriate order should be that the arbitration
award is substituted
with an order that the Coalition’s organisational rights
dispute is dismissed.
[38]
In
view of the passage of time between the arbitration hearing which
took place from 18 to 22 October 2017 and the hearing of the
appeal,
it would be just and appropriate for this Court not to remit the
dispute to the CCMA for reconsideration. In particular,
because we
are in as good a position as the CCMA to make a determination on the
outcome of the dispute, as all the facts required
to do so, are
before us. This approach is consistent with one of the core
objectives of the LRA which is to provide an effective
and speedy
resolution of labour disputes.
[16]
[39] For
all these reasons the appeal succeeds.
Costs
[40] I
consider it to be just and equitable not to make a costs award
against the Coalition as it has an ongoing
collective bargaining
relationship with AMCU.
Order
[41] In
the result, I make the following order:
1. The
appeal is upheld with no order as to costs.
2. The
order of the Labour Court is set aside and substituted with the
following order:
“
1.
The
first, second and third respondents’ application to be granted
organisational rights referred to in
sections 12
,
13
and
15
of the
Labour Relations Act 66 of 1995
is dismissed with no order as to
costs.
”
F
Kathree-Setiloane AJA
DM
Davis JA and P Coppin JA concur:
APPEARANCES
FOR
THE APPELLANT: Mr L Hollander
Instructed
by Larry Dave Incorporated Attorneys
FOR
THE FIRST, SECOND AND THIRD RESPONDENTS: Mr R Grundlingh
Instructed
by Bester & Rhoodie Attorneys
[1]
Section 12
of the LRA deals with access to the workplace of any
office-bearer or official of a representative trade union in order
to, inter
alia, recruit, communicate, and hold meetings with
employees.
[2]
Section 13
of the LRA deals with the deduction of trade union
subscriptions and levies from the wages
of an
employee who is a member of a representative trade union.
[3]
Section 15
of the LRA deals with leave for trade union activities
during working hours for purposes of
performing
the functions of an office-bearer of a representative trade union,
or of a federation of trade unions to which the
representative trade
union is affiliated.
[4]
Section 18
of the LRA provides:
‘
Right to
establish thresholds of representativeness
(1) An employer
and a registered trade union whose members are a majority off the
employees employed by that employer in
a workplace, or the parties
to a bargaining council, may conclude a collective agreement
establishing a threshold of representativeness
required in respect
of one or more of the organisation's rights referred to in
sections
12
,
13
and
15
.
(2) A collective
agreement concluded in terms of subsection (1) is not binding unless
the thresholds of representativeness
in the collective agreement are
applied equally to any registered trade union seeking any of the
organisational rights referred
to in that subsection.’
[5]
Lonmin did not enter into a limited
organizational
rights agreement with NUM.
[6]
Section 21(8C)
of the LRA provides:
‘
Subject to the
provisions of subsection (8), a commissioner may in an arbitration
conducted in terms of subsection (7) grant the
rights referred to in
sections 12
,
13
or
15
to a registered trade union, or two or more
registered trade unions acting jointly, that does not meet
thresholds of representativeness
established by a collective
agreement in terms of
section 18
, if –
(a) all parties to
the collective agreement have been given an opportunity to
participate in the arbitration proceedings;
and
(b) the trade
union, or trade unions acting jointly, represent a significant
interest, or a substantial number of employees,
in the workplace.’
[7]
Labour Court Judgment at par 10.
[8]
Labour Court Judgment at para 16.
[9]
Labour Court Judgment at para 17.
[10]
Labour Court Judgment at para 20.
[11]
Sidumo
and
Another
v
Rustenburg
Platinum
Mines
Limited
&
others
(2007)
28
ILJ
2405
(CC)
(“
Sidumo”
)
[12]
Sidumo
(as
above)
[13]
Section 21(9)
of the LRA provides:
(9) In order
to determine the membership or support of the registered trade
union, the commissioner may –
(a) make any
necessary enquiries;
(b) we
appropriate, conduct a ballot of the relevant employees; and
(c) take
into account any other relevant information.
[14]
MacDonald’s
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union &
others
(2016)
37 ILJ 2593 (LAC) (“
MacDonald’s
).
[15]
MacDonalds
at
para 35.
[16]
Section 1(d)(iv)
of the LRA.