National Union of Metalworkers of South Africa (NUMSA) obo Members v South African Airways Soc Limited and Another (JA15/16) [2017] ZALAC 32; [2017] 9 BLLR 867 (LAC); (2017) 38 ILJ 1994 (LAC) (31 May 2017)

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[2017] ZALAC 32
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National Union of Metalworkers of South Africa (NUMSA) obo Members v South African Airways Soc Limited and Another (JA15/16) [2017] ZALAC 32; [2017] 9 BLLR 867 (LAC); (2017) 38 ILJ 1994 (LAC) (31 May 2017)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 15/16
In
the matter between:
NATIONAL
UNION OF METALWORKERS OF
SOUTH
AFRICA (NUMSA) obo
MEMBERS

Appellant
and
SOUTH
AFRICAN AIRWAYS SOC LIMITED

First Respondent
SAA
TECHNICAL SOC LIMITED

Second Respondent
Heard:
13 September 2016
Delivered:
31 May 2017
Summary:
Extension of a collective agreement signed by majority unions to
non-parties in terms of s23(1)(d)
of the LRA- principle of
majoritarianism – whether a settlement agreement a collective
agreement capable of extension to
non-parties –
Held
a
matter of “mutual” interest is one in which the trade
union and the employer parties have a material and simultaneous

interest which relates to the employment relationship and can be
reduced to, or re
gulated
by a collective agreement - issues covered in s189(2) are manifestly
mutual interest issues - a retrenchment agreement between
an employer
and a trade union settling a retrenchment dispute is therefore a
collective agreement
capable
of extension in terms of s 23(1)(d) by virtue of the principle of
majoritarianism which finds expression in s23(1)(d) as
well as in
section 189(1) and 189(A)
-
s23 is a deliberate choice by the legislature to limit the rights
enshrined in s23 of the Constitution in order to attain orderly

collective bargaining and fair and expeditious resolution of disputes
in appropriate instances - The application of s 23(1)(d)
to the s 189
process is necessary and justifiable to ensure orderly and peaceful
consultation process aimed at minimising dismissals
and contributing
to economic viability.
Coram:
Tlaletsi DJP, Molemela JA and Savage AJA
JUDGMENT
TLALETSI
DJP
Introduction
[1]
This
is
an appeal against the order of the Labour Court (per Myburgh AJ),
dismissing the appellant’s application brought in terms
of s
189A (13) of the Labour Relations Act
[1]
(the LRA). In the application, the appellant sought to interdict
South African Airways (SAA) and South African Technical (SOC)
Ltd
(SAAT), both the first and second respondents respectively, from
proceeding with a large-scale retrenchment exercise pending

compliance with a fair procedure.
[2]
[2]
The
essential question that the Labour Court had to determine was whether
a retrenchment agreement concluded with unions representing
the
majority of employees in the workplace, and extended in terms of s
23(1)(d)
[3]
of the LRA, in
effect settled any dispute that non-union member employees and
minority union members had about the retrenchment
process.
The
appeal is with leave of the Labour Court.
[3]
The
appeal was heard on 17 September 2016. In the course of time, it came
to our attention that a judgment of this Court
[4]
on which the parties and the Labour Court relied for part of its
decision was a subject of appeal in the Constitutional Court.
With
agreement of the parties our judgment was withheld pending the
judgment of the Constitutional Court which was decided on 21
February
2017.
[5]
The parties were given
an opportunity to file further written submissions addressing the
judgment of the Constitutional Court.
The appellant filed its
supplementary submissions on 24 March 2017 and the respondents on 20
March 2017. What then follows is our
judgment.
Factual
Background.
[4]
The
factual background is in essence common cause. The appellant is the
National Union of Metalworkers of South Africa (NUMSA),
a trade union
duly registered in accordance with the provisions of the LRA.
[6]
The second and further appellants are its members. SAA is the
National Carrier. SAAT is a subsidiary of SAA and provides it with

technical services.
[5]
During the 2013/14
financial year, SAA made a loss of about R2.6
billion. As a
result, SAA undertook to save the costs of employment by embarking on
a reduction of a vast number of jobs. The estimated
reduction was to
save an amount of about R350 million per annum.
[6]
SAA employed 4265
employees, of whom about 80% belonged to either National Transport
Movement (NTM), South African Cabin Crew Association
(SACCA) or
United Association of South Africa (UASA). The three are unions
recognised by SAA. The appellant had only 78 members
(less than 2%)
and was unrecognised. SAAT employed 2485 employees of whom 77 %
belonged to UASA and South African Transport and
Allied Workers’
Union (SATAWU), the two recognised unions. NTM, Solidarity and the
appellant also had membership but were
unrecognised.
[7]
On
22 April 2015, SAA issued a notice of retrenchment in terms of s
189(3) (the notice. Although there was initially an objection
to only
one notice being issued, the appellant and UASA accepted that a
single notice issued would suffice for all the affected
unions. A
single facilitation process was agreed upon. Two facilitators from
the CCMA
[7]
were appointed, and
a facilitated consultation process was thereupon undertaken in terms
of s 189A (17) of the LRA for both SAA
and SAAT as agreed.
[8]
The consultation
process involved seven registered unions referred to above and two
management representative bodies at SAA and
SAAT respectively. The
60-day period provided for in s 189(A) (7) elapsed on 20 June 2015.
On this day, the consultation process
had not been concluded. The
period was extended first to 9 July 2015, and later to 22 July 2015
and 22 August 2015, respectively.
It is not disputed that the parties
had over the course of some 3½ months conducted nine
facilitated consultation sessions
and 45 private consultation
sessions.
[9]
Certain events that led
to the application in the Labour Court took place during the course
of the consultation process. On 4 July
2015, the appellant raised a
number of issues during the consultation meeting. The main issue was
a demand for disclosure by the
respondents of information relating to
the commercial rationale and alternatives to dismissals. SAA adopted
the position that the
information relating to the commercial
rationale and cost saving measures were already explained in the
notice in terms of s 189(3)
of the LRA, and that the request by the
appellant amounted to duplication of information already provided and
a mere delaying tactic.
Although the other union parties had promised
to support the appellant’s request for information, they
withheld their support
at this meeting. It is significant to note
that no less than 31 consultation meetings had taken place before the
appellant requested
information relating to the commercial rationale
of the retrenchments. It is not clear why this request was left until
right at
the death of the process.
[10]
On 7 July 2015, the
appellant brought a formal application for the disclosure of
information in the CCMA. On 10 July 2015, the parties
met with the
Chief Executive Officer (CEO) of SAA and SAAT. What transpired at
this meeting is not common cause. According to the
appellant, the CEO
agreed to provide all the requested information and that a
facilitation session that was scheduled for 11 July
2015 would
instead be utilised for discussions over the economic rationale for
the retrenchment and alternatives to dismissals.
[11]
The meeting of 11 July
2015 took place. However, according to the appellant the respondents
reneged on the agreement reached at
the meeting with the CEO. The
meeting, nevertheless, adjourned on the basis that the respondents
would file their answering affidavit
in the disclosure application by
15 July 2015.
[12]
On 22 July 2015, the
respondents filed their answering affidavit in the disclosure
application. On 23 July 2015, the respondents
agreed to extend the
consultation process to 22 August 2015. The respondents proposed five
further consultation sessions. Also
on this day, the respondents
advised the unions of a further consultation meeting scheduled for
the following day from 14h00 to
16h00, with the agenda being the
“
economic and
structural needs
”
and “
proposed
structures
”.
The appellant declined to attend the meeting citing its
unavailability due to short notice, and further objected to the

meeting being held in its absence and that of the facilitators. AUSA
undertook to attend the meeting on a without prejudice basis.
It
however, supported the appellant’s position that it did not
make sense to engage over the agenda items until such time
as the
disclosure application had been decided.
[13]
On the morning of 24
July 2015, a consultation meeting was held in the absence of the
appellant and AUSA. The meeting resulted in
the parties concluding a
retrenchment agreement. Although the scheduled afternoon session also
took place with AUSA in attendance,
no mention was made of the
conclusion of the retrenchment agreement. At 16h24, the appellant was
emailed a copy of the retrenchment
agreement. The conclusion of this
agreement led to the launch of this application in the Labour Court.
[14]
The collective
agreement of 24 July 2015 was concluded by SAA, NTM, UASA, SACCA and
SAA management employees. These entities jointly
represent about 80%
of employees at SAA workplace. The retrenchment agreement is
applicable to SAA only. In terms of the agreement,
the parties
reached agreement on: the existence of an economic rationale for the
retrenchment (and recorded that the issue had
been consulted over);
selection criteria; the termination date of the affected employees
(being either 30 September 2015 or 30
November 2015); severance pay;
training; vacancies; and the agreement by SAA with various bodies to
provide further assistance
or support to retrenched employees; the
issue of re-employment; and ex gratia payment. The agreement also
recorded that the parties
would continue to consult over proposed
organisational structure.
[15]
The
collective
agreement
provides that it is extended to non-parties in terms of s 23(1)(d)
[8]
of the LRA and further that it constitutes the agreement contemplated
in terms of regulation 10 of the Facilitation Regulations.
[9]
[16]
On 5 August 2015, the
parties to the retrenchment agreement concluded a further collective
agreement which dealt with the outstanding
issue that the parties had
reserved for consultation in the first agreement, being “the
organisational structure”.
This agreement, as the first one,
does not relate to SAAT. The agreement recorded that consensus had
been reached on most of the
issues on organisational structure. The
agreement also makes reference to the fact that it extended to
non-party employees in terms
of s 23(1) (d) of the LRA and that it is
the agreement contemplated in regulation 10.
[17]
The relief sought by
the appellant in the court
a
quo
was amended by
a written notice prior to the hearing of the application. At the
hearing of the application, the relief sought was
further pared-down
to the following:
‘
a.
A declarator that the companies “did not comply with a fair
procedure pursuant
to the issuing of the section [189(3)] notice
dated 22 April 2015” (prayer 2 of the amended notice of
motion);
b.
an order that SAA “not give effect to the purported
[retrenchment] agreement
... and that to the extent necessary the
said ... agreement be set aside” (prayer 3.1 of the amended
notice of motion);
c.
an order that the companies “engage with the applicants in
meaningful joint-consensus
seeking consultations, at least until 22
August 2015 as per the undertaking previously given ... but in any
event until such time
as per objectives of the [LRA] have reasonably
been obtained” (prayer 3.3 of the amended notice of motion);
and
d.
an order that pending compliance with the aforesaid orders, the
companies be
interdicted and restrained from terminating any
contracts of employment pursuant to sec [189(3)] notice issued on 22
April 2015
and that [they] be interdicted from implementing any steps
towards attaining the dismissal of employees (prayer 4 of the amended

notice of motion).’
The
Labour Court’s Judgment
[18]
The court
a
quo
recorded that
there were three questions that it had to determine in light of the
parties’ submissions: first, as a matter
of legal principle:
can a retrenchment agreement be validly extended to non-party
employees in terms of s 23(1)(d) of the LRA;
if the answer is in the
affirmative, then the second question is whether, on the peculiar
facts of this matter, it was permissible
to do so; if the answer is
also in the affirmative, then whether this put paid to the
appellant’s claim in relation to the
first respondent (SAA).
[19]
With regard to the
first question, the court
a
quo
held that while
it may appear objectionable that s 23(1)(d) of the LRA can be used in
a way that seem to deprive individuals and
their unions of the right
to challenge the fairness of a retrenchment process, the section
permits all collective agreements to
be extended in terms thereof and
is not limited in its scope to only agreements that do not involve a
deprivation of rights; that
most collective agreements extended in
terms of s 23(1)(d) of the LRA  involve depriving non-party
employees of some or other
right, for example, the right to strike;
that the fact that it is permissible is underscored by s 189(1)(a) of
the LRA which has
been interpreted as meaning that an employer and a
majority union can enter into a collective agreement upfront to the
effect that,
in the case of a retrenchment exercise, the employer
will only consult with the majority union.
[20]
The
court
a
quo
referred to the decision of this Court in
Aunde
South Africa (Pty) Ltd v NUMSA
[10]
where it was held:
‘
The
conclusion of a retrenchment agreement further to a process of
consultation and its extension in terms of section 23(1)(d) has
the
same effect, and is unobjectionable. As held in Chamber of Mines
(supra), section 23(1)(d) is amongst numerous sections in
the LRA
which encapsulate the legislative policy choice of majoritarianism.
That choice is based on the legislature’s assumption
that it
would best serve the primary objects of the LRA of labour peace and
orderly collective bargaining. The conclusion of a
retrenchment
agreement with a majority union (or coalition) and extension to
non-party employees accords with this
.’
[11]
[21]
The court
a
quo
rejected the
appellant’s submission that section 189A of the LRA does not
contemplate the extension of a retrenchment agreement
concluded with
the majority consulting party, and that while the right to strike can
be limited by a collective agreement extended
to non-parties, there
exists no comparative section binding non-parties to retrenchment
agreements. In its view, sections 189 and
189A are legislative design
to get parties to attempt to reach consensus, which consensus may
result in the conclusion of a collective
agreement. Such a collective
agreement, the court
a
quo
held, like any
other collective agreements, is capable of extension in terms of s
23(1)(d) of the LRA if the requirements are met.
[22]
Regarding the second
question to the effect that the first respondent and SAAT (the
companies) were bound by their election to follow
an all-comers model
of consultation involving a single facilitation process, and could
not change tack, the court
a
quo
distinguished
the authorities relied upon by the appellant for its contention. It
held,
inter alia
,
that whilst it is so that the parties agreed that there will be a
single facilitation process involving all corners, there is
no
evidence to suggest that the companies or the unions thereby waived
their rights to conclude a retrenchment agreement on a per
company
basis, and to extend any such agreement in terms of s 23(1)(d) of the
LRA. The court
a quo
reasoned that it would also be difficult to infer that because
notwithstanding the single facilitation process, the obligation
to
comply with ss189 and 189A of the LRA rests with each separate
(statutory) employer, and any retrenchment agreement and extension

thereof would have to be in the name of that employer. The court
found that it was not a case of the respondents having undergone
a
volte face
to the prejudice of the appellant but a case of “
labour
law at work”
entailing the parties engaging in a consultation process over a
period of three and a half months.
[23]
As regards the
contention that the first respondent was bound by its election to
consult with a number of unions and could not validly
renege from its
election and conclude the collective agreement with the majority
unions, the court
a
quo
reasoned that s
189(1)(c) of the LRA compels the employer to consult with all unions
whose members are likely to be affected by
the retrenchment, with it
not being a matter in respect of which the employer makes an
election.
Regarding the
argument that the first respondent negotiated in bad faith (in not
disclosing the information), breaching the agreement
with the CEO and
concluding the retrenchment agreement in a “cavalier”
fashion, the court
a
quo
held that the
retrenchment agreement, and its extension to non-party employees,
constituted a settlement of any and all such complaints
raised by the
appellant.
[24]
With regard to the
final point for determination, the court
a
quo
held that once
it is accepted that as a matter of legal principle a retrenchment
agreement can be extended in terms of s 23(1)(d)
of the LRA to
non-party employees, and that there exists no unique facts in this
matter that somehow causes a different result,
this put paid to the
appellant’s claim in relation to the retrenchment at the first
respondent (SAA) since the retrenchment
agreement, as extended,
constitutes a settlement of any dispute falling within the scope of
the agreement that non-party employees
may have.
Parties’
Submissions
[25]
Mr
Niehaus, for the appellant, submitted that the question whether a
retrenchment agreement is a collective agreement capable of
being
extended to non-parties in terms of s 23(1)(d) of the LRA is
fundamental to their case. He contended that the court
a
quo
was wrong to follow the approach adopted by earlier judgments that
said a retrenchment agreement is indeed a collective agreement

capable of being extended in terms of s 23(1)(d) of the LRA. He
submitted that such conclusion was reached without due regard to
the
constitutional right to fair labour practice enshrined in s23 of the
Constitution
[12]
which can
only be limited by way of a law of general application as provided in
s36 of the Constitution. The LRA, he submitted,
was enacted to give
effect and content to the constitutional right to fair labour
practice. It does not have any limitations to
the right not to be
unfairly dismissed and that there exists no other law of general
application as envisaged in s 36 of the Constitution
limiting the
right not to be unfairly dismissed. In essence, the appellant’s
contention is that the agreement entered into
between the recognised
majority trade unions and the first respondent constituted a
settlement agreement which was only binding
on the parties and their
members. It was not a collective agreement capable of extension to
non-parties.
[26]
It was also contended
on behalf of the appellant that the entire structure of the LRA is
premised upon a clear division between
rights disputes (in respect of
which no strike action is permissible and which disputes are to be
resolved by way of arbitration
or adjudication) and interest disputes
(which are to be resolved by way of power-play).
It
was contended that the resolution of rights disputes by agreement
results in the conclusion of settlement agreements, whilst
resolution
of interest disputes by way of agreement results in the conclusion of
collective agreements. Therefore, it was argued,
a proper
consideration of s 23 of the LRA and collective agreements in
general, should result in the conclusion that these pertain
to the
notion of collective bargaining, and relate to matters of interest
and not rights issues.
[27]
The appellant further
argued that even if a retrenchment agreement was to be regarded as a
collective agreement, such agreement
is not capable of extension to
non-parties in terms of s 23(1)(d) of the LRA in respect of those
issues which resort within the
ambit of rights disputes. Similarly,
the appellant argues that the court
a
quo’
s
reliance on the Labour Appeal Court’s judgments of
Kem-Lin
Fashions CC v Bruton and Another
(2001) 32 ILJ 109 (LAC) and
Mzeku
and Others v Volkswagen SA (Pty) Ltd and Others
2001 (4) SA 1009
(LAC), and the Labour Court’s judgment of
Chamber of Mines of
SA v AMCU and Others
[2014] 9 BLLR 895
(LC) was misplaced because the issues in those
matters pertained to true collective agreements regulating matters of
mutual interest
and did not deal with rights disputes. It was further
contended that the court
a
quo
erred in
relying on
Aunde
South Africa (Pty) Ltd v NUMSA
[2011] 10 BLLR 945
(LAC) in support of the contention that a
retrenchment agreement is a collective agreement because such
statement was made
obiter
.
[28]
Mr Boda SC, for the
respondents, submitted that the judgment of the court
a
quo
is
unassailable. He contended that the court
a
quo
was correct in
finding that the retrenchment agreement constituted a collective
agreement capable of extension to non-parties in
terms of s 23(1)(d)
of the LRA; that although the parties chose to consult in a single
forum, nothing prevented the conclusion
of a retrenchment agreement
for SAA, and that once the collective agreement has been validly
extended, the parties are bound by
it with the result that all points
of contention over the commercial rationale and alternatives had been
resolved.
Analysis
[29]
This Court, in essence,
is called upon to decide the same issues that were decided by the
Court
a quo
,
namely, whether the Court
a
quo
erred in
finding that in principle a retrenchment agreement concluded between
SAA and the Majority Unions constitutes a collective
agreement which
could validly be extended to non-party employees in terms of s
23(1)(d) of the LRA and whether on the facts the
extension put paid
to the appellant’s claim in relation to SAA.
[30]
The starting point in
the inquiry is to consider the meaning of a “collective
agreement” for the purposes of the LRA.
In terms of  s 213
of the LRA, a “collective agreement” means a written
agreement concerning the terms and conditions
of employment or any
other matter of mutual interest concluded by one or more registered
Trade Unions on the one hand, and on the
other by one or more
registered employers’ organisations; or one or more employers
and one or more registered employers organisations.
It therefore
means that an agreement which meets or satisfies the requirements set
out herein constitutes a collective agreement.
[31]
The contention on
behalf of the appellant that the Court
a
quo
should have
declined to follow the approach adopted in earlier judgments (i.e.
Tsetsana v
Blyvooruitzicht Gold Mining Co Ltd
[1999]
4 BLLR 404
(LC)
and
Sigwali and Others v Libanon (a division of Kloof Gold Mine Ltd
[2002] 2 BLLR 216
(LC) to the effect that a retrenchment agreement
constitutes a collective agreement, is, in my view, unfounded.
The ratio in those decisions remains
valid. I also find no merit on the further contention that the Court
a quo
’s
reliance on the decisions of this Court in
Kem-Lin
Fashions CC v Brunton and Another
(2001)
22 ILJ 109 (LAC)
and
Mzeku and Others v Volswagen SA (Pty) Ltd and
Others
2001 (4) SA 1009
(LAC); (2001) 22 ILJ 1575 (LAC
)
and Association of Mineworkers and Construction union and Others v
Chamber of Mine of South Africa
takes the matter no further. The issues in those matters pertains to
the collective agreements regulating the matters of mutual
interest
and did not deal with rights disputes. An attempt to distinguish the
said authorities on what is said to be a distinction
between “matters
of mutual interest” and “rights dispute” is
somewhat, for the reasons that follow hereunder,
artificial.
[32]
There is, in my view,
merit in the respondent’s contention that the fundamental
misconception by the appellant is to confuse
the term “mutual
interest” with two other terms being “interest dispute”
and “rights dispute”.
In this regard, the appellant
contended that the words “(or) any other matter of mutual
interest” serve to qualify
and circumscribe the preceding words
“terms and conditions of employment” in the definition of
a collective agreement
in s 213 of the LRA, in order to restrict it
to the realm of matters of interest (i.e. the creation of new rights)
and not rights
issues (existing rights). The definition of a
collective agreement, goes the contention, contemplates the
resolution of interest
dispute, i.e. the creation of new rights and
does not pertain to the settlement of disputes concerning existing
rights.
[33]
There
is in my view nothing in the definition in s 213 of the LRA that
suggest that the words “any other matter of mutual
interest”
should be limited as suggested on behalf of the appellant. The term
“matter of mutual interest” is
broad enough to cover both
interest and rights disputes. This Court in
Pikitup
(SOC) Ltd v South African Municipal Workers Union obo Members and
Others
[13]
favoured
a broad meaning to the term “a matter of mutual “where it
held:
‘
I
therefore agree with Hulley AJ that the health and safety issues in
this matter are matters of mutual interest. In my view, Snyman
AJ’s
judgment unjustifiably limits the phrase matters of mutual interest
to terms and conditions of employment only. In any
event, the fact
that an employee would work in a safe and healthy environment and the
parties’ (employer and employee) duties
thereanent is at least
an implied term of a contract of employment. Snyman AJ found that
nothing changed except that the employee
had to give a breath sample
before receiving the keys to a truck. This is an over simplification
of the situation. The Constitutional
rights of the employees were
infringed without their consent. In my view, that represents a
substantial change”.
[14]
A
matter of “mutual” interest is one in which the Trade
Union and the employer parties have a material and simultaneous

interest which relates to the employment relationship and can be
reduced to, or regulated by a collective agreement
[15]
.
In my view, the issues covered in s 189(2) of the LRA are manifestly
mutual interest issues. A retrenchment agreement between
an employer
and a trade union settling a retrenchment dispute is therefore a
collective agreement, for as long as it meets the
requirements set
out in s 213 of the LRA.
[34]
It was further
contended on behalf of the appellant that s 23 of the Constitution of
the Republic of South Africa, 1996 affords
to everyone a fundamental
right to fair Labour Practices, which in terms of s 36 of the
Constitution can only be limited by way
of a “law of general
application” and that nowhere in the LRA is there any
limitation of the aforesaid substantive
right not to be unfairly
dismissed (as an inherent part of the fundamental Constitutional
right to fair labour practices).
It
was submitted that the erroneous approach adopted by the Court
a
quo
was to
effectively find that s 23(1)(d) of the LRA constitutes such a
statutory authorised and constitutionally compliant limitation
to the
right to fair labour practices. As it will be shown later, s 23 of
the LRA is a deliberate choice by the legislature to
limit the rights
enshrined in s 23 of the Constitution in order to attain orderly
collective bargaining and fair and expeditious
resolution of disputes
in appropriate instances. It may be an unfair limitation in general,
but it is justifiable, depending on
the circumstances and facts of a
particular case.
[35]
In
Aunde
South Africa (Pty) Ltd v NUMSA (Aunde South Africa
)
[16]
this
Court
held
that:
‘
Where an
employer consults in terms of agreed procedures with the recognised
representative trade union in terms of a collective
agreement which
requires the employer to consult with it over retrenchment, such an
employer has no obligation in law to consult
with any other union or
any individual employee over the retrenchment.  If such a
consultation exercise culminated in a collective
agreement that
complies with the requirements of a valid collective agreement, all
employees including those who are not members
of the representative
trade union that consulted with the employer are bound by the terms
of such collective agreement irrespective
of whether they were party
to the consultation process or not.’
[17]
[36]
The Court
a
quo
correctly
recognised that it may appear objectionable that s 23(1)(d) can be
used in such a way as to deprive individuals (and
this their unions)
of the right to challenge the fairness of a retrenchment process,
which the section permits all collective agreement
to be extended in
terms of s 23(1)(d) of the LRA and is not limited in its scope to
only agreements that do not involve a deprivation
of rights that most
collective agreements extended in terms of s 23(1)(d) of the LRA
involve depriving non-party employees of some
or other right.
The Court
a
quo
correctly
reasoned with reference to the
Aunde
South Africa
decision above, that:
‘
The
conclusion of a retrenchment agreement further to a process of
consultation and its extension in terms of section 23(1)(d) has
the
same effect, and is unobjectionable. As held in
Chamber
of Mines (supra)
[18]
,
section 23(1)(d) is amongst numerous sections in the LRA which
encapsulate the legislative policy choice of majoritarianism. That

choice is based on the legislature’s assumption that objects to
the LRA of Labour peace and orderly collective bargaining.
The
conclusion of a retrenchment agreement with a majority to non-party
employees accords with this.’
[37]
In
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa,
[19]
the appellant also contended
inter
alia,
that
the principle of majoritianism contained in s 23(1)(d) read with s
65(1)(a) of the LRA to the effect that minorities (employees
and
their union) are bound by a collective agreement concluded between
the majority union and the employer, which agreement, had
been
extended to them, had the effect of prohibiting the minority from
striking on the issues agreed to the collective agreement.
Such
prohibition unfairly limited their right in terms of s 23 of the
Constitution in the circumstances where s 23 (1)(d) of the
LRA does
not have similar safeguards to s 32 of the LRA. This Court held that:
[105]
Section 23(1) (d) of the LRA is
but
one instance in the LRA where the legislature had chosen to apply the
principle of majoritarianism. There is nothing unconstitutional
about
the principle itself. It is a useful and essential principle applied
in all modern democracies, including the Republic of
South Africa. It
has been recognised as an essential and reasonable policy choice for
the achievement of orderly collective bargaining
and for
democratisation of the workplace and the different sectors.
In
Kem-Lin
Fashions CC v Brunton and Another,
[20]
this
Court (per Zondo JP) expressed itself on the topic as follows:
‘
The
legislature has also made certain policy choices in the Act of which
are relevant to this matter.  One policy choice is
that the will
of the majority should prevail over that of the minority. This is
good for orderly collective bargaining as well
as for the
democratisation of the workplace and sectors.  A situation where
the minority dictates to the majority is, quite
obviously, untenable
but also a proliferation of trade unions in one workplace or in a
sector should be discouraged.’
[107]    It is also
correct, as the second respondent has submitted, that the weight of
academic authority has endorsed
the Legislature’s choice of
majoritarianism as essential for collective bargaining.’
[38]
The
above reasoning of this Court and the court below in the
AMCU
v Chamber of Mines of South Africa
cases were endorsed by the Constitutional Court in a further appeal
to that court in
AMCU
v Chamber of Mines of South Africa and Others.
[21]
The Constitutional Court held:
‘
[50]
AMCU is right that the codification of majoritarianism in section
23(1)(d) limits the right to strike. The key question is
whether the
principle provides sufficient justification for that limitation. Both
the Labour Court and the Labour Appeal Court
gave detailed and
extensive consideration to this. I do not seek to improve their
reasoning. In short, the best justification for
the limitation the
principle imposes is that majoritarianism, in this context, benefits
orderly collective bargaining.’
[22]
[39]
In its supplementary
submissions, the appellant accepts that the majoritarianism principle
contained in s 23(1)(d) of the LRA is
a legitimate and justifiable
limitation to the right to strike. It however, contends that
reference in the Constitutional Court
judgment is only made to a
collective agreement and its extension by the majority in the context
of and as the product of collective
bargaining (“interest
dispute”) and that, nothing contained in the judgment provides
any support or authority for the
proposition that a retrenchment
settlement is a collective agreement. I have already found that as
the Court below did and other
authority of this Court that a
retrenchment agreement that meets the requirements set out in   of
the LRA is a collective
agreement and is capable of extension in
terms of s 23(1)(d) of the LRA. The retrenchment agreement in
casu
meets the requirements of s 213 of the LRA and was duly extended in
terms of  (1)(d) of the LRA. The short answer to the contention

that the Constitutional Court limited itself to instances of
collective bargaining, is that the principle of majoritarianism finds

expression in s23(1)(d) as well as in section 189(1) and 189(A) of
the LRA. The application of s 23(1)(d) of the LRA to the process
set
out in s 189 of the LRA is necessary and justifiable to ensure
orderly and peaceful consultation process aimed at minimising

dismissals and contributing to economic viability. To allow a
situation where a minority party would, right at the end of the
consultation process, not be bound by a product of a legitimate and
fair process, particularly where it was part of that process,
would
lead to chaotic situations. It would be difficult, if not impossible,
for a consultation process under s189 of the LRA to
be concluded.
[40]
As indicated already,
the parties, including the appellant, followed an extensive
consultation process involving about 45 consultation
meetings over a
period of 3½ months. The appellant, despite its challenges to
the validity of the extension, accepted that
the retrenchment
agreement effectively resolved the entire retrenchment at SAA and
that the agreement is legally binding on the
parties thereto. In my
view, the appellant has failed to place facts or present acceptable
evidence for the Court
a
quo
and this Court,
to review the agreement under the principle of legality, or to set
its extension to the appellant aside. The Court
a
quo
was in my view
correct in not exercising its wide-ranging powers set out in s
159(1)(a) of the LRA to set the collective agreement
aside or
interfere with its extension. As regards the complaint that the first
respondent was bound by the election to follow an
all-comers model of
consultation involving a facilitation process, and could not change
tack, and that for that reason the retrenchment
agreement should not
be extended to the appellant, the Court
a
quo
, reasoned inter
alia
that:
‘
While
it is so that the parties agreed that there would be a single
facilitation process involving all-comers, I can find no evidence
to
suggest that the companies (or unions for that matter) thereby waived
their rights to conclude a retrenchment agreement on a
per company
basis, and to extend any such agreement in terms of section 23(1)(d).
It would also be difficult to infer this, because
notwithstanding the single facilitation process, the obligation to
comply with
sections 189 and 198A rests with each separate
(statutory) employer, and any extension thereof would have to be in
the name of
that employer.’
The
above reasoning cannot be faulted.
[41]
For the above reasons,
the appeal falls to be dismissed. There is an ongoing relationship
between the parties. The issues in the
appeal involved constitutional
rights and have public significance. For these reasons, it shall be
in accordance with the requirements
of the law and fairness that
there be no order as to costs.
[42]
In the result, the
following order is made.
The
appeal is dismissed.
_____________________
Tlaletsi
DJP
Molemela
JA and Savage AJA concur in the judgment of Tlaletsi DJP.
APPEARANCES:
FOR
THE APPELLANTS:
Mr M Niehaus of Minnar Niehaus
Attorneys

Port Elizabeth
FOR
THE RESPONDENT:
Mr FA Boda SC
Instructed
by Cliffe Dekker Hofmeyer Inc.
Sandton.
[1]
Act
66 of 1995.
[2]
Section 189A(13) provides that: “(13) If an employer does not
comply with a fair procedure, a consulting party may approach
the
Labour Court by way of an application for an order-
(a) compelling the employer to comply
with a fair procedure;
(b) interdicting or restraining the
employer from dismissing an employee prior to complying with a
fair procedure;
(c) directing the employer to
reinstate an employee until it has complied with a fair procedure;
(d) make an award of compensation, if
an order in terms of paragraphs (a) to (c) is not appropriate.”
[3]
23. Legal effect of collective agreement
(1)
A collective agreement binds -
(a) the parties to the collective
agreement;
(b) each party to the collective
agreement and the members of every other party to the collective
agreement, in so far as the
provisions are applicable between them;
(c) the members of a registered trade
union and the employers who are members of a registered employers’
organisation that
are party to the collective agreement if the
collective agreement regulates (i) terms and conditions of
employment; or
(ii) the conduct of the employers in
relation to their employees or the conduct of the
employees in relation to their
employers;
(d)
employees who are not members
of the registered trade union or trade unions party to the
agreement if -
(i) the employees are identified in
the agreement;
(ii) the agreement expressly bind the
employees; and
(iii) that trade union or those trade
unions have as their members the majority of employees employed by
the employer in the workplace.
[4]
Association
of Mineworkers & Construction Union v Chamber of Mines of SA
acting
in its own name &
on
behalf of Harmony Gold Mining Co (Pty) Ltd
[2016] ZALAC 11
; (2016) 37 ILJ 1333 (LAC);
[2016} 9 BLLR 872
9
(LAC).
[5]
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[2017]
ZACC 3
;
(2017)
38 ILJ 831 (CC);
2017 (3) SA 242
(CC).
[6]
Aviation
Union of Southern Africa (AUSA), a trade union which was the first
applicant in the Court
a
quo
is not pursuing the appeal.
[7]
The
Commission
for Conciliation Mediation and Arbitration.
[8]
Clause 4.2 of the collective agreement.
[9]
Regulation 10 reads under the heading “agreement “as
follows: “If an employees who are likely to be affected
by the
proposed dismissal are represented in a facilitation by more than
one consulting party, an agreement must be concluded
by the
consulting parties representing the majority of the employees
concerned, for purposes of section s 189A (2) of the Act
and these
Regulations.”
[10]
[2011] 10 BLLR 945
(LAC); (2011)32 ILJ 2617 (LAC).
[11]
At
para 32.
[12]
The Constitution of the Republic of South Africa 1996.
[13]
[2014] 3 BLLR 217 (LAC).
[14]
At para 66.
[15]
See City of Johannesburg Metropolitan Municipality v SAMWU
[2011] 7
BLLR 663
(LC) at para 11.
[16]
[2011]
10 BLLR 945 (LAC).
[17]
At para 32.
[18]
This
was in reference to the judgment of the Labour Court reported under:
Chamber
of Mines of South Africa v Association of Mineworkers and
Construction Union and Others
[2014] 9 BLLR 895 (LC).
[19]
[2016]
9 BLLR 872 (LAC).
[20]
[2001] 1 BLLR 25
(LAC) at para 19. See also
Mzeku
v Volkswagen SA (Pty) Ltd
[2001] 8 BLLR 857
(LAC) at paras 55 and 67.
[21]
(2017)
38 ILJ 831 (CC); 2017 (3) SA 242 (CC).
[22]
At
para 50.