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[2017] ZALAC 36
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South African Correctional Services Workers Union (SACOSWU) v Police and Prisons Civil Rights Union (POPCRU) and Others (JA87/2015) [2017] ZALAC 36 (31 May 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA87/2015
In the matter between:
SOUTH AFRICAN CORRECTIONAL SERVICES
WORKERS
UNION
(SACOSWU)
Appellant
and
police and Prisons civil rights
union
(POPCRU)
First
Respondent
MINISTER
OF CORRECTIONAL SERVICES
Second
Respondent
LGP
LEDWABA
N.O.
Third
Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Fourth
Respondent
Heard: 15 November 2016
Delivered: 31 May 2017
Summary: POPCRU concluded an
agreement establishing representation thresholds with the Department
of Correctional Services (DCS)
for the acquisition of s 12, 13 and 15
organisational rights by minority trade unions in the workplace.
Thereafter the DCS concluded
a collective agreement with the
appellant, SACOSWU, a minority union which had not attained the
stipulated representativeness threshold,
granting to the union stop
order facilities for a limited period and the right to represent
members in grievance and disciplinary
proceedings. POPCRU referred a
dispute concerning the interpretation and application of its
collective agreement with the DCS to
the GPSSBC for conciliation and
then arbitration. The arbitrator, relying on the decision in
Bader
Bop
dismissed POPCRU’s application. On review, the Labour
Court found that the arbitrator’s reliance on
Bader Bop
constituted an error of law in that in that matter no threshold
agreement applied. Since the agreed threshold had not been achieved
by SACOSWU, the Court found that the DCS was not entitled to conclude
a collective agreement with SACOSWU. The award of the arbitrator
was
set aside and substituted with an order declaring the SACOSWU
collective agreement invalid and setting it aside, with it declared
that SACOSWU was not entitled to exercise organisational rights in
the DCS or conclude a collective agreement with the DCS until
the
agreed representation threshold had been achieved.
On appeal: the decision of the
Labour Court was set aside on the basis that s 20 provides that
nothing in Part A of Chapter III,
which must include a s 18(1)
threshold agreement, precludes the conclusion of a collective
agreement that regulates organisational
rights. This accords with the
recognition that minority unions are entitled to have access to the
workplace so as to challenge
the hegemony of majority unions, at
least to represent their members. On the same basis, the deduction of
trade union subscriptions
for a limited period was permissible. The
appeal was consequently upheld with costs.
Coram: Ndlovu, Coppin JJA
et
Savage AJA
Judgment
SAVAGE AJA:
Introduction
[1]
This
appeal is concerned with whether an employer is precluded from
according certain limited organisational rights to a minority
union
when it falls short of the representation threshold agreed between
the employer and a majority trade union in the workplace
in terms of
s18(1) of the Labour Relations Act 66 of 1995 (LRA). In a dispute
concerning the interpretation and application of
the applicable
threshold agreement, the third respondent (the arbitrator) found that
the employer was entitled by virtue of s20
to enter into a collective
agreement with a minority union in spite of a representation
threshold having been agreed in terms of
s18(1). On review, the
Labour Court (Snyman AJ) set aside the arbitration award on the basis
that the threshold agreement was binding
on the employer and the s20
agreement with the minority union was declared invalid and
unenforceable.
[2]
At
the outset of the hearing and without opposition, the appeal was
reinstated in accordance with the Rules of this Court. This
followed
a limited delay having been condoned in the filing of the notice of
appeal and the appeal record, the result of an error
made in
calculating the days within which to file these documents.
Background
[3]
The
Department of Correctional Services (DCS) is a party to two public
sector bargaining councils, the Public Sector Coordinating
Bargaining
Council (PSCBC) and the General Public Service Sectoral Bargaining
Council (GPSSBC), as well as its own central bargaining
forum, the
Department Bargaining Chamber (DBC), in which collective bargaining
is conducted. Three collective agreements concluded
in these
structures are relevant for current purposes:
10.1.
Resolution
7 of 2001 was concluded between the Police and Prisons Civil Rights
Union (POPCRU), as the majority trade union, the
trade union
Democratic Nursing Organisation of South Africa (DENOSA) and the DCS
to establish representation thresholds in the
DBC. Paragraph 3 of
this resolution provides that the threshold for admission of a single
trade union as a party to the DBC is
a minimum of 9000 members, or
where unions act jointly, 4500 members each. The agreement binds the
parties to it “
and
all employees who are not members of a registered trade union
admitted to the department council, as well as members of registered
trade unions admitted to the council who are not parties to this
agreement”
;
10.2.
Resolution
1 of 2006 regulates disciplinary and grievance proceedings, including
in the DCS. In terms of paragraph 7.1.3.3, only
a recognised trade
union admitted to the DBC may represent employees in the workplace.
This resolution binds the employer, employees
who are members of the
trade union parties to the agreement and employees who are not
members of the trade union “
but
who fall within the registered scope of the chambers”
;
and
10.3.
Resolution
3 of 2006 in which issues of recognition were agreed, including the
implementation of a procedure manual which binds
all employees in the
DBC as a bargaining unit, whether or not employees are members of
POPCRU as the majority trade union. This
resolution regulates
organisational rights, including the election of shop stewards and
the deduction of subscriptions, with only
trade unions admitted to
the DBC entitled to exercise rights in terms of paragraph 5.2.1 of
the procedure manual.
[4]
The
South Africa Correctional Services Workers Union (SACOSWU), which was
registered as a trade union by the Registrar of Labour
Relations on
31 August 2009, is a minority trade union in the DCS with
approximately 1500 members. In late 2009, SACOSWU sought
the DCS to
allow it to represent its members in disciplinary and grievance
proceedings and for its union subscription fees to be
deducted by the
DCS from SACOSWU’s members for a limited period until Treasury
was able to take over this function. When
these demands were not
acceded to, SACOSWU referred a complaint to the International Labour
Organisation (ILO) and the Office of
President of the Republic of
South Africa on 25 March 2010.
[5]
On 5
November 2010, the then National Commissioner of Correctional
Services, Mr T S Moyane, informed SACOSWU in writing that it
would be
granted the right to represent members in internal disciplinary and
grievance hearings and that the DCS would assist the
union with
deductions from its members until the union had finalised “
the
process of Magnetic Tape with Treasury
”
within six (6) months. This agreement constituted a collective
agreement as defined in s213 of the LRA, concluded between
SACOSWU,
as a registered trade union, and the employer.
[6]
Dissatisfied
with the conclusion of this agreement, in that SACOSWU had not
reached the 9000-membership threshold agreed for admission
into the
DBC, in May 2011, POPCRU referred a dispute concerning “
the
interpretation or application of a collective agreement
”
under s24(1) to the GPSSBC for conciliation. The relief sought was -
‘
that
the status of SACOSWU as a trade union within the Department be
declared null and void; that SACOSWU be declared not having
the
threshold to be granted organisational rights’
.
[7]
The
dispute was not resolved at conciliation and POPCRU referred a
dispute concerning the “
interpretation
and implementation of Resolution 3/2006
”
to arbitration seeking “
that
the status of SACOSWU within the Department be declared null and
void
”.
SACOSWU was joined as a party to the arbitration proceedings in
August 2011. By the date of arbitration, SACOSWU no longer
required
the DCS to deduct subscriptions on its behalf as the six-month period
agreed had since elapsed.
[8]
By
agreement between the parties, a stated case was presented at
arbitration with the relief sought by POPCRU being a determination
that:
10.1. SACOSWU was not entitled to
exercise any of the organisational rights provided in sections 12,
13, 14, 15 or 16 of the LRA
in the workplace of the DCS, either in
terms of Chapter III Part A of the LRA or “
outside”
the provisions thereof
;
and
10.2. the decision of the DCS to grant
SACOSWU the rights mentioned in its letter of 5 November 2010 was
invalid and unenforceable.
[9]
POPCRU
contended that the DCS had contravened the collective agreements to
which it was bound in affording SACOSWU the rights that
it had. The
DCS submitted that there was nothing in law to prohibit the grant of
such rights to SACOSWU in that it had not prevented
the exercise of
statutory organisational rights by representative trade unions.
SACOSWU approached the matter on the basis that
the collective
agreement it had concluded with the DCS was one in terms of s20 of
the LRA and that the organisational rights granted
to it were outside
of the ambit of Part A of Chapter III of the LRA, but that Part A, in
any event, did not preclude the conclusion
of such an agreement with
a minority union.
[10]
The
arbitrator, relying on the decision of the Constitutional Court in
NUMSA
v Bader Bop (Pty) Ltd (Bader Bop),
[1]
found that despite the collective agreements entered into between the
DCS and POPCRU, s23(5) of the Constitution of the Republic
of South
Africa, 1996 and s20 of the LRA, entitled SACOSWU, as a minority and
unrepresentative trade union, to engage in collective
bargaining with
the employer and conclude a collective agreement with the DCS.
[11]
The
arbitrator approached the matter on the basis that the LRA should not
be interpreted to preclude non-representative unions from
obtaining
organisational rights, either by agreement with the employer or
through industrial action, since the statute is capable
of a broader
interpretation that does not limit fundamental rights, and the
broader interpretation should be preferred. SACOSWU
was therefore
found to be entitled to exercise any of the organisational rights
provided in ss12 to 16 of the LRA in the workplace
of DCS and that
the collective agreement entered into between SACOSWU and the DCS was
both valid and enforceable.
Judgment of the Labour Court
[12]
Aggrieved
with the decision of the arbitrator, and in an application to the
Labour Court to review that decision, POPCRU sought
an order -
14.1.
declaring
that the DCS and SACOSWU are not entitled to enter into a valid
collective agreement in terms of which SACOSWU is granted
any of the
organisational rights provided for in sections 12 to 16 of the LRA;
14.2.
setting
aside the collective agreement concluded between the DCS and SACOSWU
in terms of which SACOSWU is granted the organisational
rights
provided for in sections 12 to 16 of the LRA;
14.3.
declaring
that SACOSWU is not entitled to exercise any of the organisational
rights provided in section 12 to 16 of the LRA in the
workplace of
the second respondent, either in terms of Chapter III, Part A of the
LRA, or “outside” the provisions
of thereof.
Alternatively,
14.4.
that
the dispute be referred back to the GPSSBC to be determined afresh by
an arbitrator other than the third respondent.
[13]
The
Labour Court in its judgment (reported as
POPCRU
v Ledwaba NO and others
)
[2]
distinguished the facts in this matter from those in
Bader
Bop,
in
which no threshold agreement existed
,
finding that the arbitrator’s reliance on that decision was a
fundamental error of law which rendered the arbitration award
reviewable. The principle of majoritarianism was stated to permeate
the collective bargaining provisions of the LRA, with s18 permitting
thresholds of representativeness to be agreed for ss12, 13 and 15
organisational rights so as to regulate the admission of trade
unions
to the bargaining relationship and avoid a proliferation of small
trade unions.
[14]
The
Labour Court found that the collective agreement entered into with
SACOSWU in terms of s20 was “
entirely
incompatible”
with the agreement entered into with POPCRU in terms of s18(1) and
that the two agreements could not exist in conjunction with
one
another. This was so in that the agreement in terms of s18(1)
established a representation threshold in order to be admitted
to the
DBC and that agreement was extended to non-parties and bound SACOSWU;
further, that it was only on admission to the DBC
that the rights
sought by SACOSWU could be granted; the right to trade union
representation in disciplinary proceedings was specifically
limited
to trade unions admitted to the DBC and had been extended to
non-parties; the POPCRU collective agreements preceded that
of
SACOSWU and created an existing dispensation which must be upheld;
that dispensation bound non-parties under s23(1)(d); and
since POPCRU
is a majority union, the agreements with it must receive priority
given the principle of majoritarianism. The DCS,
in concluding an
agreement with SACOSWU, was found to have acted in breach of the
collective agreement entered into with POPCRU,
which agreement was
binding on SACOSWU’s members. Since SACOSWU as a minority and
unrepresentative union was not entitled
to conclude a collective
agreement with the DCS in which it was granted the organisational
rights it sought, the collective agreement
entered into “
cannot
be allowed to stand”
and was found by the Labour Court to be invalid and unenforceable.
[15]
The
arbitration award was consequently set aside and substituted with the
following order:
‘
(1)
The collective agreement concluded between SACOSWU and the Department
of Correctional Services in terms of which SACOSWU was
granted and
afforded organisational rights is declared to be invalid and set
aside.
(2)
SACOSWU is not entitled to exercise organisational rights in the
Department of Correctional Services unless SACOSWU complies
with the
threshold of representativeness and is admitted to the Department
Bargaining Council, as specified in resolution 7 of
2001 dated 8
November 2001, for as long as this resolution remains valid and
binding.
(3)
SACOSWU is not entitled to conclude a collective agreement with the
Department of Correctional Services on organisational rights
in terms
Section 20 for as long as the Procedure Manual as contained in
resolution 3 of 2006 remains valid and binding.’
Submissions on appeal
[16]
Although
wider relief was sought at arbitration, the parties agree that the
dispute concerns the question whether the DCS was entitled
to grant
organisational rights to SACOSWU that can be the subject of a s18(1)
collective agreement, namely, s12, s13 and s15 rights,
when threshold
agreements had been entered into between the DCS and POPCRU and other
unions which were binding on non-parties under
the provisions of
s23(1)(d). Only s12 and s13 rights are in issue in this matter, with
s15 rights (i.e. pertaining to leave for
trade union activities) not
having been sought by SACOSWU.
SACOSWU’s submissions
[17]
It
was contended for SACOSWU that s18 does not regulate the entire
collective bargaining system, as the existence of s20 confirms,
and
that, in any, event trade unions, and not employees, exercise
organisational rights, with a threshold agreement applying to
trade
unions and not employees. Despite the existence of the s18(1)
threshold agreement entered into between the DCS and POPCRU,
the DCS
was not prevented from granting SACOSWU organisational rights since
s20
[3]
is permissive and s18(1)
[4]
means no more than that, on reaching an agreed threshold a union is
automatically entitled to ss 12, 13 and 15 organisational rights
without being required to bargain for them. An employer is therefore
not obliged to deny such rights to a minority union that has
bargained for, or engaged in industrial action to obtain them. If an
agreement regulating organisational rights was rendered impermissible
by a s18 threshold agreement, no purpose would be served by s20.
Since the LRA can and must be read to avoid the limitation of
fundamental rights,
[5]
nothing prevented the DCS from granting organisational rights to the
union if it chose to do so.
Bader
Bop
confirms that the principle of majoritarianism may not seek to
eliminate minority unions or undermine voluntarism.
[18]
Reliance
was placed on
Transnet
SOC Ltd v National Transport Movement
(Transnet)
[6]
in which a union, not party to a threshold agreement and not bound by
it, was entitled to strike in support of a demand for organisational
rights. While a minority union cannot strike over an issue regulated
by a collective agreement, the reference by the Labour Court
to
s65(3)(a), it was submitted, was wrong in that the s18 threshold
agreement could not regulate the issue in dispute between the
DCS and
SACOSWU. In any event, it was submitted that s14(4)(a) entitles a
trade union representative to represent members in grievance
and
disciplinary proceedings and a s18(1) agreement did not apply to s14.
Issue was also taken with the competence of the Labour
Court to set
aside the collective agreement between the DCS and SACOSWU in a
review application under s145 when the arbitrator
was required, in a
s24(2) dispute, to decide whether SACOSWU was entitled to exercise
organisational rights with no order was sought
in terms of
s158(1)(a)(iv) or s158(1)(h).
POPCRU’s submissions
[19]
POPCRU
opposed the appeal on the basis that the DCS was not entitled to
disregard a valid threshold agreement and conclude a collective
agreement with SACOSWU as a minority union which has not achieved the
agreed threshold. This was so in that s18(1) reflected a
legislative
policy choice in favour of majoritarianism, with s20 meaning no more
than that, generally speaking, employers and unions
are entitled to
conclude collective agreements regulating the detail of
organisational rights even if the union is not representative
and
without necessarily resorting to the procedure in s21(1).
[7]
To permit the DCS to enter into a collective agreement with SACOSWU,
as a minority union which has not achieved the threshold,
would
render s18 nugatory and would fly in the face of the principle of
majoritarianism, which is accorded primacy in the LRA.
Furthermore,
it was contended that constitutional rights are not necessarily best
served by an interpretation of the LRA which
permits a watering down
of the principle of majoritarianism, since employee rights are best
served by fewer but stronger unions.
[20]
It
was submitted that the decision in
Bader
Bop,
which concerned the lawfulness of a strike, was distinguishable in
that no threshold agreement had been entered into in that matter.
Since the threshold agreement in the present matter was binding and
had been extended to employees of the employer who were not
members
of POPCRU, such members were also bound by the agreement. It
followed, so the argument went, that SACOSWU as a minority
union was
prevented from bargaining over ss12, 13 and 15 rights and that the
union’s members would also have been precluded
from strike
action by virtue of s65(3)(a).
[21]
Issue
was also taken with the reliance placed by SACOSWU on s14 for the
first time in this appeal, since the union neither qualifies
as a
majority union for purposes of s14, nor may it refer a dispute
concerning organisational rights, referred to in the provision,
to
arbitration or adjudication. It was argued that
Transnet
is distinguishable in that it concerned the question whether a strike
was unprotected, in that it sought to compel the employer
to breach a
collective agreement binding on it when non-union members were not
bound by terms of the collective agreement.
Discussion
[22]
On 19
February 1996, South Africa ratified both ILO Convention No. 87 on
Freedom of Association and Protection of the Right to Organise
[8]
and Convention No. 98 on the Right to Organise and Collective
Bargaining.
[9]
The ratification of these conventions accords with the s18 right of
freedom of association in our Constitution, and the right to
fair
labour practices in s23, which includes the right of employees to
form and join trade unions, to strike and the right of trade
unions,
employers and employers' organisations to bargain collectively.
[10]
[23]
The
ILO relies on two supervisory bodies to implement the two
Conventions: the Committee of Experts on the Application of
Conventions
and Recommendations and the Committee on Freedom of
Association (CFA). These bodies take the view that the majoritarian
system
is compatible with freedom of association,
[11]
provided that minority unions are not prevented from functioning,
from making representations on behalf of their members, and
representing members in individual grievance disputes.
[12]
The CFA recognises that while it is generally to the advantage of
workers and employers to avoid the proliferation of competing
unions,
a monopoly imposed by law is at variance with the principle of
freedom of association,
[13]
with workers entitled to belong to other unions.
[14]
A distinction in levels of representation should, the CFA has found,
therefore not result in the most representative being granted
privileges which extend beyond that of priority in representation,
nor should they deprive minority unions of the essential means
for
defending the occupational interests of their members, organising
their administration and activities and formulating their
programmes.
[15]
Furthermore, minority trade unions, who are denied the right to
negotiate collectively, should be permitted to perform their
activities
so as at least to speak on behalf of their members and
represent them in the case of an individual claim or grievance.
[16]
[24]
The
legislative choice made in favour of majoritarianism and against the
proliferation of trade unions in the workplace is evident
in Part A
of Chapter III of the LRA. While s11 defines a “
representative
trade union
”
for purposes of the Part as “
a
registered trade union, or two or more registered trade unions acting
jointly, that are sufficiently representative of the employees
employed by an employer in a workplace”,
s18(1)
permits a trade union whose members are either a majority, or are
parties to a bargaining council, to establish representativeness
thresholds for the enjoyment of ss12, 13 and 15 organisational
rights.
[17]
[25]
However,
also in Part A, is s20 which provides that:
‘
Nothing
in this Part precludes the conclusion of a collective agreement that
regulates organisational rights
’
.
[26]
Bader
Bop
was
concerned with the right to strike in support of a minority union’s
demand for the recognition of shop stewards and the
right to
represent its members in disciplinary and grievance proceedings, in
circumstances where no threshold agreement existed.
In that matter,
the Court rejected as “
inappropriate”
a narrow reading of section 20 in -
‘…
an
Act committed to freedom of association and the promotion of orderly
collective bargaining, which requires that employers and
unions
should have freedom to conclude agreements on all matters of mutual
interest’
.
[18]
[27]
While
recognising that the rights conferred by Part A of Chapter III may be
regulated by the collective agreements contemplated
by section
21,
[19]
the Court stated that s20 serves as –
‘…
express
confirmation of the internationally recognised rights of minority
unions to seek to gain access to the workplace, the recognition
of
their shop-stewards as well as other organisational facilities
through the techniques of collective bargaining
.
’
[20]
[28]
The
Court there also found that -
‘…
a
majoritarian system can operate fairly only in accordance with
certain conditions. It must allow minority unions to co-exist,
to organise members, to represent members in relation to individual
grievances and to seek to challenge majority unions
.
’
[21]
[29]
In
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
(
AMCU
),
[22]
in a challenge to the constitutionality of s23(1)(d),
[23]
the Constitutional Court recognised majoritarianism as both a premise
of and recurrent theme throughout the LRA.
[24]
Reference was made to
Kem-Lin
Fashions CC v Brunton
[25]
in which it was stated that the LRA reflected a policy choice 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. There are various provisions
in the Act which
support the legislative policy choice of majoritarianism
.
’
[26]
[30]
Yet,
the Court in
AMCU
recognised
that while the extension of collective agreements to non-parties
under section 23(1)(d) gives enhanced power within
a workplace
to a majority union for powerful reasons that enhance employees’
bargaining power through a single representative
bargaining
agent,
[27]
majoritarianism is not “
an
implement of oppression” and –
‘…
does
not entirely suppress minority unions. Its provisions give
ample scope for minority unions to organise within the workforce
–
and to canvass support to challenge the hegemony of established
unions
’
.
[28]
[31]
Part
A of Chapter III expressly confers enforceable organisational rights
on certain unions – unions that are either sufficiently
representative (sections 12, 13 and 15) or majority unions (sections
14 and 16). These are enforceable rights and the mechanism
for their
enforcement is also provided for in Part A.
[29]
There is however nothing in Part A of Chapter III –
‘…
which
expressly states that unions which admit that they do not meet the
requisite threshold membership levels are prevented from
using the
ordinary processes of collective bargaining and industrial action to
persuade employers to grant them organisational
facilities such as
access to the workplace, stop-order facilities and recognition of
shop stewards. These are matters which are
clearly of mutual “mutual
interest” to employers and unions and as such matters capable
of forming the subject matter
of collective agreements
…’.
[30]
[32]
In
finding the POPCRU threshold agreement in terms of s18(1)
incompatible with the SACOSWU agreement, the Labour Court approached
the matter on the basis that the threshold agreed by POPCRU and the
DCS closed the door on any access to the workplace by SACOSWU,
as a
minority trade union. S18(1) provides that:
‘
An
employer and a registered trade union whose members are a majority of
the employees employed by that employer in a workplace,
or the
parties to a bargaining council, may conclude a collective agreement
establishing thresholds of representativeness required
in respect of
one or more of the organisational rights referred to in sections 12,
13 and 15.’
[33]
It
follows that the agreed threshold which may be the subject of a
s18(1) agreement has the effect of giving meaning to what constitutes
“
sufficiently
representative”
,
as provided in s11, in order for a union to be conferred ss12, 13 and
15 organisational rights in a workplace. Where a union has
achieved
the threshold agreed by way of a s18(1) agreement, ss12, 13 and 15
rights will then as a matter of right be conferred
on the union.
However, as was made clear in
Bader
Bop,
there is nothing in Part A of Chapter III which expressly states that
unions which do not meet the required threshold are prevented
from
using the ordinary processes of, as is relevant for current purposes,
collective bargaining to persuade the employer to grant
such rights
to the minority union
.
[34]
Furthermore,
since s20 provides that “
nothing”
in Part A precludes the conclusion of an agreement regulating
organisational rights, on a plain reading of the provision “
nothing”
appears to me to mean nothing in the Part, including a s18(1)
agreement. To find differently would amount to a narrow reading of
s20, which
Bader
Bop
found to be “
inappropriate”
.
This means that even where a s18(1) agreement exists, this does not
preclude the conclusion of a s20 collective agreement between
an
employer and a minority union which has bargained for the rights
contained in that agreement. Were s18(1) to be interpreted
so as to
bar the conclusion of such an agreement under s20, this would, as was
cautioned in both
Bader
Bop
and
AMCU
,
serve to disregard the “
internationally
recognised rights of minority unions to seek to gain access to the
workplace”,
[31]
to organise within the workforce or to canvass support to challenge
the hegemony of established unions.
[32]
[35]
There
is therefore merit in SACOSWU’s contention that the minimum
threshold agreed in a s18(1) agreement to obtain ss12, 13
or 15
organisational rights, establishes a minimum, which, once reached,
permits the rights to be conferred by the employer on
such a union
with no need to bargain for them. Having regard to s20, and despite a
s18(1) agreement having been concluded, a minority
trade union is not
barred from seeking to be granted ss12, 13 or 15 organisational
rights and to conclude a collective agreement
with the employer in
order to record the grant of any such rights.
[36]
While
s 23(1) provides that a collective agreement is binding on the
parties to it, a threshold agreed by an employer obliges the
employer
to confer ss12, 13 and s15 rights upon a union which had achieved the
threshold agreed in the s18(1) agreement. It does
not bar the
employer from bargaining collectively with a minority union which
seeks to have any organisational rights conferred
on it, nor does the
existence of a s18(1) agreement oblige the employer to deprive a
minority union of any such organisational
rights.
[37]
That
this is so is starkly highlighted by the issue of representation of
members of minority unions in individual disciplinary or
grievance
proceedings. Since a majoritarian system can only operate fairly
where a minority union is allowed to co-exist, including
“…
to
represent members in relation to individual grievances”
,
[33]
to deny an employee a choice and impose on him or her representation
by a majority union, of which that employee is not a member,
is
conceivably contrary to and in breach of the employee’s
constitutional rights to freedom of association and to join a
trade
union and the right in s23(1) to
fair
labour practices.
[38]
An
employer may determine whether it wants to bargain with a minority
union, the extent to which it will do so and whether it will
conclude
a collective agreement with the minority union. This includes
bargaining collectively on the grant of any organisational
rights to
that union. The LRA does not prohibit the bargaining with a minority
union on such matters, nor does the employer breach
an existing
s18(1) collective threshold agreement in doing so. This is so, in
that, the effect of the s18(1) threshold which has
been agreed to, is
to oblige the employer to confer ss12, 13 and 15 rights upon unions
that had achieved that threshold, but not
to constrain the employer’s
entitlement to bargain with those unions that have not.
[39]
It is
so that the employer’s election to bargain with the minority
union in such circumstances may have consequence for the
relationship
with the majority union, and that such consequence may play out
either in the course of the collective bargaining
relationship, or
through the exercise of other legal remedies. However, since the
threshold agreement does not provide a bar to
the conclusion of a s20
collective agreement with the minority union regarding ss12, 13 or 15
organisational rights, the existence
of the threshold does not
distinguish the matter from
Bader
Bop.
This
is so given the recognition that minority unions are entitled to
co-exist, to organise members, to represent members in relation
to
individual grievances and to seek to challenge majority unions
.
’
[34]
[40]
It
follows that the Labour Court erred in approaching the matter on the
basis that s18 seeks to avoid the proliferation of minority
trade
unions in a workplace, through regulating the admission of trade
unions to the bargaining relationship and that the provision
would
serve no purpose if s20 was permitted to override it. The admission
of trade unions to the bargaining relationship at different
levels
involves the exercise of power as between the parties and the
balancing of competing constitutional and other legal rights
and
obligations. An agreed threshold does not firmly bar a minority trade
union from having access to the workplace. This is so
given the
recognition that the majoritarian system is compatible with the right
to freedom of association, provided that minority
unions are not
prevented from functioning, making representations on behalf of their
members, and representing members in individual
grievance disputes.
It
follows that the s18(1) agreement was correctly interpreted by the
arbitrator to permit the conclusion of the agreement with
SACOSWU
allowing the union
s12
rights, in order to serve members’ interests by representing
employees in disciplinary and grievance proceedings.
[35]
Having found this to be so, it is not necessary to deal with
SACOSWU’s contention that s14 provided a right to such
representation,
save to state that the union’s reliance on that
provision was misplaced in the circumstances of this matter.
[41]
Turning
to the s13 right, to have subscriptions deducted for a limited period
only,
[36]
by the time the matter came before the Labour Court the limited
period, for which the deduction of union subscriptions had been
sought, had elapsed. Nevertheless, the parties agreed that the issue
was not moot insofar as the principle involved remained at
stake.
[42]
The
deduction of subscriptions is pivotal to the continued operation of a
trade union. This includes a minority trade union, which
when
subscriptions are deducted, is placed in a position in which it may
co-exist within the majoritarian system.
[37]
The ILO has recognised the deduction of trade union subscriptions by
employers as a matter which should be dealt with through collective
bargaining between employers and trade unions.
[38]
[43]
SACOSWU
sought the deduction by DCS of subscriptions from its members by the
DCS for a limited period only. For the reasons stated
previously, the
DCS was not prevented from acceding to that request by virtue of the
s18(1) agreement and permitting such subscriptions
for the limited
period sought, in accordance with the applicable international
standards. To have refused such request would have
unduly restricted
the SACOSWU’s right of access, as a minority union, to the
workplace. The determination of the arbitrator
in that regard cannot
be faulted.
[44]
Turning
to remedy, it fell to the arbitrator, in the interpretation of the
s18(1) agreement, to determine whether that agreement
barred the
conclusion of an agreement with SACOSWU to exercise the rights sought
by it, namely the right to represent its members
in grievance and
disciplinary proceedings and the right to have subscriptions deducted
for a limited period. The material before
the arbitrator was
insufficient to warrant a conclusion that SACOSWU was entitled to
exercise wider s12 to s16 organisational rights
in the workplace
.
As
much was conceded by counsel for both parties and to this extent only
the arbitration award falls to be substituted with an appropriate
order.
[45]
For
all of the above reasons, the appeal must succeed. There is no reason
in law or fairness why the costs of the appeal, including
the costs
of two counsel, should not follow the outcome.
Order
[46] In the result, an order is made
as follows:
1.
The
appeal is upheld with costs, including the costs of two counsel.
2.
The
orders of the Labour Court are set aside and replaced with the
following order:
‘
1.
Save
for the substitution of the arbitration award as set out below, the
application to review and set aside the arbitration award
is
dismissed:
‘
The
collective agreement entered into with POPCRU in terms of section
18(1) of the LRA establishing representation thresholds for
the
exercise of organisational rights under s 12, s 13 and s 15 in the
workplace of the Department of Correctional Services, does
not
prevent the Department from entering into a valid and enforceable
collective agreement with SACOSWU in terms of s 20 to permit
the
union to represent its members at internal disciplinary and grievance
proceedings in the workplace.’
2.
There is no order as to costs.’
_________________
Savage AJA
Coppin JA agrees. Sadly, Ndlovu JA
passed away before the finalisation of this judgment.
APPEARANCES:
FOR
THE APPELLANT: J G Grogan & L Voultsos
Instructed
by Neville Borman & Botha
FOR
THE FIRST RESPONDENT: C E Watt-Pringle SC & N Dandadzi
Instructed
by Allardyce & Partners
[1]
[2002] ZACC 30
;
2003 (3) SA 513
(CC);
(2003) 24 ILJ 305
(CC)
[2002] ZACC 30
; ;
2003 (2) BCLR 182
(CC);
[2003] 2 BLLR 103
(CC).
[2]
[2013] 11 BLLR
1137 (LC).
[3]
Section 20 reads:
“
Nothing
in this Part precludes the conclusion of a collective agreement that
regulates organisational rights
.”
[4]
Section 18(1)
reads: “
An
employer and a registered trade union whose members are a majority
of the employees employed by that employer in a workplace,
or the
parties to a bargaining council, may conclude a collective agreement
establishing thresholds of representativeness required
in respect of
one or more of the organisational rights referred to in sections 12,
13 and 15.”
[5]
At para 46.
[6]
[2014] 1 BLLR 98
(LC).
[7]
A procedure that
permits a registered trade union to notify the employer in writing
that it seeks to exercise organisational rights
in a workplace.
[8]
No. 87 (1948)
ratified by South
Africa on 19 February 1996.
[9]
No. 98 (1949)
ratified by South Africa on 19 February 1996.
[10]
Section 23(1) to
(5) of the Constitution. The LRA is the national legislation
contemplated in s 23(5) to regulate
and
promote orderly collective bargaining at sectoral level, with
C
hapter III
of the Act concerned with collective bargaining.
[11]
Cohen, Tamara
“Limiting Organisational Rights of Minority Unions:
Popcru
v Ledwaba
2013 11 BLLR 1137
(LC) 2014”
[2014] PER 60
; Vol 17(5) with
reference to Gernogon, Odero and Guido 2000 www.ilo.org.
[12]
ILO
Freedom
of Association:
Digest
of Decisions and Principles (ILO Geneva 2006) 5
th
ed
at
para 829 (
Digest)
.
[13]
Digest
(op
cit)
at p
ara
320.
See
1996
Digest
at para. 288; and 338th Report, Case No. 2348, para 995).
[14]
Digest
(op cit)
at para 358
;
See 1996
Digest
at para 312.
[15]
Digest
(op cit)
at para 346.
See
1996
Digest
at para 309; 332nd Report, Case No. 2216, at para 908; and 337th
Report, Case No. 2334 at para. 1219.
[16]
Digest (op cit)
at paras 359 and para 975. See 1996
Digest
at para. 313; 336th Report, Case No. 2153, at para 168 and 300th
Report, Case No. 1741, at para 55.
[17]
Section
18(1) reads:
‘
An
employer and a registered trade union whose members are a majority
of 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 organisational rights referred to in sections
12, 13 and 15.’
This is provided that
such thresholds in terms of s 18(2) ‘…a
re applied
equally to any registered trade union seeking any of the
organisational rights referred to in that subsection’.
[18]
Bader Bop
(op cit)
at para 41.
[19]
A
registered trade union may in terms of s 21(1) “
notify
an employer in writing that it seeks to exercise one or more of the
rights conferred by this Part in a workplace.”
In
considering a dispute, a commissioner is required –
‘
(i)
to minimise the proliferation of trade union representation in a
single workplace and, where possible, to encourage a system
of a
representative trade union in a workplace; and
(ii) to minimise the
financial and administrative burden of requiring an employer to
grant organisational rights to more than
one registered trade
union.’
Section 21(8)(b) also requires
consideration as to the nature of the workplace, the rights that the
union seeks to exercise, the
sector and the organisational history
and composition of the workplace. Subsections 21(8A) – (8D)
were inserted, with effect
from 1 January 2015, into the provision.
S 21(8C) permits a commissioner to grant ss 12, 13 or 15 rights to a
registered trade
union, or two or more unions acting jointly, where
thresholds of representativeness established by a collective
agreement in
terms of s 18 are not met, if all parties to the
collective agreement have been given an opportunity to participate
in the arbitration
proceedings; and the trade union(s) represent a
significant interest, or a substantial number of employees in the
workplace.
[20]
Bader Bop (op
cit)
at
para 41.
[21]
At para 52.
[22]
(2017)
38 ILJ 831 (CC)
[23]
Section
23(1)(d) provides that a collective agreement binds “
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 binds 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
.”
[24]
At para 43.
[25]
2001 22 ILJ 109
(LAC).
[26]
A
t
para 19. See too
Specialty
Stores v SA Commercial Catering & Allied Workers Union
(1997)
18
ILJ
992 (LC);
[1997]
8 BLLR 1099
(LC);
and
SA
Commercial Catering & Allied Workers Union v Speciality Stores
Ltd
(1998) 19
ILJ
557 (LAC);
[1998] JOL 2102
(LAC);
[1998] 4 BLLR 352
(LAC).
[27]
At para 44.
[28]
At para 55.
[29]
Bader Bop
at
para 40.
A
‘collective agreement’ is in terms of s 213 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 and one or more employers or registered
employers’
organisations.
[30]
Ibid.
[31]
Bader Bop
at para 64.
[32]
At para 55.
[33]
AMCU
a
t
para 52.
[34]
At para 52.
[35]
Section
12 reads:
“
(1)
Any office-bearer or official of a representative trade union is
entitled to enter the employer's premises in order to recruit
members or communicate with members, or otherwise serve members'
interests.
(2) A
representative trade union is entitled to hold meetings with
employees outside their working hours at the employer's
premises.
(3) The members of a
representative trade union are entitled to vote at the employer's
premises in any election or ballot contemplated
in that trade
union's constitution.
(4) The rights
conferred by this section are subject to any conditions as to time
and place that are reasonable and necessary
to safeguard life or
property or to prevent the undue disruption of work.’
[36]
Section
13(1) states:
“
(1)
Any employee who is a member of a representative trade union may
authorise the employer in writing to deduct subscriptions
or levies
payable to that trade union from the employee's wages.
’
The remaining
sub-sections concern the authorisation, timing and deduction of
monies and the remittance provided thereafter.
[37]
AMCU
at para 52.
[38]
Para
481 Digest
P100;
See the 1996
Digest
,
para. 326; 300th Report, Case No. 1744, para. 99; and 323rd Report,
Case No. 2043, para. 502.