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[2018] ZALAC 27
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Association of Mineworkers and Construction Union (AMCU) and Others v Royal Bafokeng Platinum Limited and Others (JA23/2017) [2018] ZALAC 27; [2018] 11 BLLR 1075 (LAC); (2018) 39 ILJ 2205 (LAC) (26 June 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA23/2017
In the matter between:
ASSOCIATION
OF MINEWORKERS
AND
CONSTRUCTION UNION
(AMCU)
1
st
Appellant
THE
INDIVIDUAL PERSONS WHOSE
NAMES
ARE LISTED IN ANNEXURE “A”
2
nd
to Further Appellants
and
ROYAL
BAFOKENG PLATINUM
LIMITED
1
st
Respondent
THE
NATIONAL UNION OF
MINEWORKERS
2
nd
Respondent
UASA
– THE
UNION
3
rd
Respondent
THE
MINISTER OF
LABOUR
4
th
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
5
th
Respondent
THE
CHAMBER OF
MINES
6
th
Respondent
Heard: 06 March 2018
Delivered: 26 June
2018
Summary:
Summary: Constitutionality of sections 189(1)(a)(c) and 23(1)(d) of
the LRA –employer entering into a retrenchment
agreement with
representative union and agreement extended to minority union in
terms of section 23(1)(d) – retrenchment
agreement excluded
consultation with minority union – minority contending that
sections 189(1)(a)(c) and 23(1)(d) unconstitutional
as they infringe
on a number of the employees’ constitutional rights and
International Conventions – further that the
section be
interpreted in such a manner that individual employees and minority
trade unions may also be consulted irrespective
of the existence of a
collective agreement between the employer and the majority union/s
and that the extension of retrenchment
agreements, without involving
minority unions or non-members, in terms of section 23(1)(d) is
irrational and
offends the rule of
law.
Held
that: the Legislature had made a policy choice of
Majoritarianism
in order to
facilitate orderly collective bargaining, minimise union rivalry and
to foster democratisation of the workplace by avoiding
a multiplicity
of consulting parties, a proliferation of unions and industrial
discontent
- section 189 of the LRA
is also a manifestation of the policy choice that the legislature
made. This policy choice in favour of
majoritarianism is no doubt
based on the fact that retrenchments are usually collective in
nature. Section 189 recognises that
the interests of the employees
are best served by the most representative entity at the workplace.
The entity shall have obtained
its seat at the consultation table
based on its statistical dominance at the workplace. Having obtained
its statistical dominance
and entered into a collective agreement
with the employer as the exclusive representative of the employees,
consultation is more
practical and less cumbersome than a
multiplicity of consultations with each and every employee at the
workplace.
Held that the
exclusion of minority unions because, they have not met the threshold
agreed upon, does not mean that their members
are not represented. If
the representative union acts unfairly or discriminatory against an
employee and such conduct leads to
the unfair retrenchment of the
employee, such employee has the right to challenge the fairness of
his or her individual retrenchment.
Held that section
23(1)(d) does not require expressly or implicitly that a minority
union should be consulted before a collective
agreement is extended.
The representative union would generally be in a better position to
consult with the employer because it
will have all the necessary
information at its disposal. To grant a minority union the right to
be heard in circumstances where
the representative union has by means
of collective bargaining acquired the right to be the only bargaining
agent would be subversive
to collective bargaining and the principle
of majoritarianism which underpins section 23(1)(d). The extension of
a collective agreement
without affording a minority union or
non-union members a hearing is rationally related to the achievement
of the purpose of the
section 23(1)(d) process. It facilitates
orderly collective bargaining; it avoids the multiplicity of
consulting parties and it
fosters peace and order in the workplace.
Procedural challenge
based on section 189A(13) dismissed on account of the minority union
not having
locus standi
to challenge the procedural fairness
of the dismissals. – Labour Court’s judgment upheld and
appeal dismissed.
Coram:
Waglay JP, CJ Musi JA and Savage AJA
JUDGMENT
MUSI JA
[1]
The first appellant, the Association of Mineworkers and Construction
Union (AMCU), sought an order in the Labour Court declaring
sections
189(1)(a) to (c) and 23(1)(d) of the Labour Relations Act (the
Act)
[1]
unconstitutional. The
delineation of the constitutional challenge will become apparent
later. The Labour Court (Prinsloo J) dismissed
the application. This
appeal is against that order. The appeal is brought with the leave of
the Labour Court.
[2]
The first respondent (employer) operates a platinum mine known as the
Bafokeng Rasimone Platinum Mine (Mine). The second to
further
appellants (employees) were all employed at the mine. The majority of
the employees at the mine were members of the second
respondent, the
National Union of Mineworkers (NUM). The third respondent, the United
Association of South Africa (UASA), also
had members at the mine.
[2]
During 2014, AMCU commenced recruiting members at the mine. By 31
July 2015, the employees switched allegiance and were all members
of
AMCU.
[3]
The employer recognised NUM and UASA for bargaining purposes and
extended organisational rights to them. AMCU was not recognised
for
bargaining purposes, neither was organisational rights extended to
it.
[4]
On 30 September 2015, the employees attempted to report for duty at
the mine, they were however issued with notices of retrenchment
dated
18 September 2015. In the notices, it was stated that the employees
would be retrenched with effect from 31 October 2015.
[5]
Neither the employees nor AMCU were issued with section 189(3)
notices. It is common cause that AMCU was not consulted before
the
decision to retrench its members was made. NUM and UASA were,
however, consulted.
[6]
AMCU referred an alleged unfair dismissal dispute to the Commission
for Conciliation Mediation and Arbitration (CCMA) for conciliation.
During the consultation proceedings, the employer raised a point
in
limine
to the effect that there is an
extant collective agreement between the employer, NUM and UASA which
entitled the employer to exclude
AMCU from the consultation process.
The Commissioner issued a jurisdictional ruling wherein he found that
the CCMA had no jurisdiction
to conciliate the matter.
[7]
AMCU and the employees approached the Labour Court with an
application in terms of section 189A(13) of the Act. The employer,
in
its answering affidavit, averred that it had entered into a
collective agreement as contemplated in section 189(1)(a) of the
Act
with NUM and UASA, in terms of which the parties agreed that the
employer would only consult with NUM and UASA in respect of
dismissals for operational requirements. The employer further averred
that it had entered into a retrenchment agreement with NUM
and UASA
which was extended in terms of section 23(1)(d) of the Act. The
consultation and retrenchment agreements were attached.
[8]
The parties agreed that AMCU would withdraw its section 189A(13)
application and mount a constitutional challenge aimed at declaring
sections 189(1)(a) - (c) and 23(1)(d) of the Act unconstitutional.
The agreement was made an order of court.
[9]
Pursuant to the agreement, AMCU approached the Labour Court seeking
relief which was aptly summarised by the Labour Court as
follows:
“
[1]
The applicants (appellants) approached this Court for an order, inter
alia, declaring sections 189(a) - (c) of the Labour Relations
Act
(LRA) unconstitutional in so far as they have the effect that where
an employer consults with a trade union with which the
employer is
required to consult in terms of a collective agreement, that employer
has no obligation to consult with any other trade
union whose members
are likely to be affected by the proposed dismissals. Construed in
this manner, it violates the rights (and
freedoms) set out in the
Constitution namely, the rule of law (section 1), the right to
equality (section 9(1)), dignity (section
10), freedom of association
(section 18) fair labour practice (section 23), access to information
(section 32) and access to courts
(section 34).
[2]
The applicants seek that sections 189(a) - (c) be excised from the
LRA, alternatively be reinterpreted in a manner that is consistent
with the aforesaid constitutional rights (and freedoms) and that it
be declared that where an employer consults with a trade union
that
the employer is required to consult with in terms of a collective
agreement, that employer must also consult with any other
trade union
whose members are likely to be affected by the proposed dismissals.
[3]
In respect of section 23(1)(d) the applicants seek an order declaring
the said section unconstitutional in so far as it permits
a
collective agreement regulating the dismissal of employees based on
operational requirements, concluded with a majority trade
union, to
bind employees who were not members of the registered trade union.
Construed in this manner, it violates the following
rights (and
freedoms) set out in the Constitution: rule of law (section 1), the
right to equality (section 9(1)), dignity (section
10), freedom of
association (section 18), fair labour practice (section 23), just
administrative action (section 33) and access
to courts (section 34).
[4]
The applicants seek that section 23(1)(d) be reinterpreted in a
manner that is consistent with the aforesaid constitutional
rights
(and freedoms) and that it be declared that a collective agreement
regulating the dismissal of employees based on operational
requirements, concluded with a majority union, cannot be extended to
bind employees who are not members of the trade union or a
party to
the agreement. Alternatively, that an exclusion be read into section
23(1)(d) precluding its application to collective
agreements
regulating the dismissal of employees based on operational
requirements.
[5]
The applicants also seek the review and setting aside of the
retrenchment agreement concluded between the first second and third
respondents, and/or the extension thereof in terms of section
23(1)(d) of the LRA. Lastly the applicants seek that the dismissals
of the second and further applicants be declared to be of no force
and effect and that they be reinstated retrospectively. If the
dismissals are not declared to be of no force and effect, the
applicants seek to challenge the procedural fairness of their
dismissals
in terms of the provisions of section 189A(13).”
[10]
The Labour Court its judgment made the following findings:
‘
section
23(1)(d) of the Act is not unconstitutional;
there
is no basis to read in an exclusion into section 23(1)(d) precluding
its application to collective agreements that regulate
dismissals
based on operational requirements;
section
189 is not inconsistent with the Constitution because if an employer
consults a party in terms of a collective agreement,
there is no
obligation to consult another party in terms of the remaining
subsections to section 189 of the Act;
section
189 creates a hierarchy of consulting parties;
the elevation to the
status of consulting party is strictly speaking not dependent on the
principle of majoritarianism, but rather
on such party acquiring the
status of consulting party by way of a collective agreement;
there
is no basis to excise or interpret sections 189(1)(a) - (c) in order
to declare that where an employer consults with a trade
union that
the employer is required to consult, the employer must also consult
with any other trade union members who are likely
to be affected by
the proposed dismissals;and
the
impugned sections do not violate any of the constitutional rights
alleged by AMCU.’
[11]
In this Court, Mr Boda, on behalf of the appellants, contended that
the Court a
quo
did not deal with the appellants’ prayer that the extension of
the retrenchment agreement be reviewed and set aside, despite
the
review not being contingent on the constitutionality challenges
succeeding. The appellants further contended that the Labour
Court
erred in not:
“
1.
impugning the constitutionality of section 189(1)(a) - (c) of the
Act;
2. impugning the
constitutionality of section 23(1)(d) of the Act;
3. reinterpreting the
above sections in such a manner that minority trade unions may also
be consulted irrespective of the existence
of a collective agreement
between the employer and the majority union/s;
4.
finding that the dismissal of the employees was procedurally unfair.”
[12]
The different contentions of Mr Pretorius, for the first respondent,
Mr Malindi, for the fourth respondent and Mr Myburgh,
for the
amicus
curiae
, in support of the Labour
Court’s judgment will be set out later.
[13]
The Republic of South Africa is a democratic state founded on,
inter
alia,
the value of the supremacy of the Constitution and the rule of
law.
[3]
The Constitution is the
supreme law of the Republic of South Africa and any law or conduct
inconsistent with it is invalid, and
obligations imposed by it must
be fulfilled.
[4]
[14]
Section 23 (1), (5) and (6) of the Constitution reads as follows:
“
(1)
Everyone has the right to fair labour practices…
(5) Every trade union,
employers’ organisation and employer has the right to engage in
collective bargaining. National legislation
may be enacted to
regulate collective bargaining. To the extent that the legislation
may limit our right in this chapter, the limitation
must comply with
section 36(1).
(6)
National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the
legislation
may limit a right in this chapter, the limitation must
comply with section 36(1).”
[15]
Section 36 of the Constitution reads as follows:
“
36.(1)The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity equality and freedom, taking into account
all relevant
factors, including –
(a) the nature of the
right;
(b) the importance of
the purpose of the limitation;
(c) the nature and
extent of the limitation;
(d) the relation
between the limitation and its purpose; and
(e) less restrictive
means to achieve the purpose.
(2)
Except as provided in subsection 1 or in any other provision of the
Constitution, no law may limit any right entrenced in the
Bill of
Rights.”
[16]
The Act contains an important interpretive instruction in section 3
thereof which reads:
“
Any
person applying this Act must interpret its provisions –
(a)
To give effect to its primary
objects;
(b)
In compliance with the Constitution;
and
(c)
In compliance with the public international law obligations of the
Republic.”
[17]
The purpose of the Act is stated in section 1as follows:
“
The
purpose of this Act is to advance economic development, social
justice, labour peace and the democratisation of the workplace
by
fulfilling the primary objects of this Act, which are-
(a) To give effect to
and regulate the fundamental rights conferred by section 23 of the
Constitution of the Republic of South Africa,
1996…;
(b) To give effect to
obligations incurred by the Republic as a member state of the
International Labour Organisation;
(c) To provide a
framework within which employees and their trade unions, employers
and employers' organisations can-
(i) Collectively
bargain to determine wages, terms and conditions of employment and
other matters of mutual interest; and
(ii) formulate
industrial policy; and
(d) To promote-
(i) Orderly collective
bargaining;
(ii) Collective
bargaining at sectoral level;
(iii) Employee
participation in decision-making in the workplace; and
(iv)
The effective resolution of labour disputes.”
[18]
This Court must promote the spirit, purport and objects of the Bill
of Rights when interpreting any legislation.
[5]
When interpreting any legislation, every court must prefer any
reasonable interpretation of the legislation that is consistent
with
international law over any alternative interpretation that would
inconsistent with international law.
[6]
[19]
The Act is predicated upon the principle of majoritarianism. The
system of majoritarianism permeates our labour relations
dispensation. The system which is a conscious policy choice that the
legislature made runs through the Act. This policy choice was
made in
order to facilitate orderly collective bargaining, minimise union
rivalry and to foster democratisation of the workplace.
In
Kem-Lin
Fashions
v
Brunton
[7]
this
Court said the following:
“
The
legislature has also made certain policy choices in the Act 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
the collective bargaining as well as for the democratisation
of the
workplace and sectors...”
[8]
[20]
The Constitutional Court has recently pointed out that
majoritarianism is both a premise of and a recurrent theme throughout
the LRA. It went on to state that:
“
it
is majoritarianism that underlies the statute’s countenancing
of both agency shop agreements (deductions for majority union
fees
from all employees, both members and non-members), and closed shop
agreements (collective agreement may oblige all employees
to be
members of the majority trade union). This is not to say that these
provisions are invulnerable to constitutional attack.
It is only to
point to them as piquantly instancing the scheme of the statute as a
whole.”
[9]
[21]
This principle was also underscored in
Transport
and Allied Workers Union of South Africa v PUTCO
[10]
where the Constitutional Court said:
“
In
essence, the principle of majoritarianism states that the will of the
majority prevails over that of the minority. This is reflected
throughout the LRA.”
[11]
[22]
The appellants, faced with the uphill battle to displace the
principle of majoritarianism, opted to limit their challenge to
the
principle in the context of retrenchments. Mr Boda submitted that the
appellants have no difficulty with the principle of majoritarianism
and its constitutionality
per se,
their challenge however relates to the application of majoritarianism
in the context of the right to procedural fairness in the
retrenchment scenario, so as to exclude constituencies of workers
from the scope of consultation.
[23]
Majoritarianism is underpinned by collective bargaining which secures
certain benefits for the majority union or unions. In
order to enjoy
the enhanced benefit which comes with being a representative union,
the union or unions must enter into a collective
agreement with the
employer. A collective agreement is defined as:
“
a
written agreement concerning 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 hand –
(a) one or more
employers;
(b) one or more
registered employers’ organisations; or
(c)
one or more employers and one or more registered employers
organisations;”
[12]
[24]
The philosophy of the Act is in favour of voluntarism and is by and
large abstentionist in its approach. The regulation of
the workplace
and employment contracts is left to the parties to agree upon. As
part of the trade-off, collective agreements are
given priority; this
is so because collective bargaining is essentially geared towards
concluding a collective agreement. Collective
agreements are so
important in the scheme of the Act that they are allowed to trump the
provisions of the Act. Jordaan puts it
thus:
“…
The
Act generally allows collective bargaining to trump its own
provisions. It even goes as far as allowing for collectively agreed
limitations on certain constitutionally guaranteed rights. For
example, section 64(1)(a) prohibits a strike where collective
agreement
determines that the issue in dispute is not stable. By
agreement between an employer and a majority union, such a limitation
may
also be extended to workers who do not belong to the union
concerned, thereby also depriving them of the right to strike over
that
particular issue. Similarly, trade unions which do not represent
the majority of employees in the workplace may be deprived of the
right to organise on the shop floor if an employer and majority union
agreed in terms of section 18 to grant exclusive rights to
the
majority union.”
[13]
[25]
The primacy of collective agreements is carefully interwoven with the
provisions of the Act dealing with organisational rights,
[14]
bargaining councils,
[15]
regulating, to a limited extent, terms and conditions of
employment,
[16]
workplace forums,
[17]
the right to strike,
[18]
and retrenchments.
[19]
[26]
The voluntary nature of our labour relations system is held together
by collective agreements. Collective agreements are part
of the
package. The gains made by collective bargaining which leads to
collective agreements should not be unravelled easily. The
risk, of
course, being that the unravelling of one thread might lead to the
destruction of the entire garment.
[27]
Section 189(1) of the Act is one of the sections in the Act that is
predicated upon the primacy of collective agreements. Section
189(1)
is as follows:
“
(1)
When an employer contemplates dismissing one or more employees for
reasons based on the employer's operational requirements,
the
employer must consult-
(a)
any person whom the employer is required to
consult in terms of a collective agreement;
(b)
if there is no collective agreement that requires consultation-
(i) a workplace forum,
if the employees likely to be affected by the proposed dismissals are
employed in a workplace in respect
of which there is a workplace
forum; and
(ii) any registered
trade union whose members are likely to be affected by the proposed
dismissals;
(c)
if there is no workplace forum in the workplace in which the
employees likely to be affected by the proposed dismissals are
employed, any registered trade union whose members are likely to be
affected by the proposed dismissals; or
(d)
if there is no such trade union, the employees
likely to be affected by the proposed dismissals or their
representatives nominated
for that purpose.”
[28]
It is common cause that the employer on the one hand, and NUM and
UASA on the other hand signed a valid and enforceable collective
agreement in terms of which the employer was required to consult
exclusively with NUM and UASA. The parties further entered into
a
retrenchment agreement after the consultation process.
[29]
It is not in dispute that the retrenchment agreement which regulated
the dismissals based on the mine’s operational requirements
was
extended in terms of section 23(1)(d) of the Act to bind employees
who were not members of NUM or UASA. Section 23(1)(d) reads
as
follows:
“
a
collective agreement binds –...
(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 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.”
[30]
In
Aunde
v NUMSA,
[20]
this Court stated that section 189 creates a hierarchy of consulting
partners. It 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
retrenchments, 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.”
[21]
[31]
The appellants took issue with this construction of section 189. They
point out that they were not consulted prior to their
dismissals and
were precluded from contributing to the consultation process. In
being disenfranchised in this manner, so the argument
was advanced,
the individual appellants remain oblivious to the content of the
consultation process, consequently being hamstrung
in determining the
adequacy or otherwise of the exclusionary consultation that took
place, for purposes of pursuing a fairness
challenged on an informed
and effective basis. The appellants contended that their exclusion
from the consultation process is not
in keeping with the right to
fair labour practices, which includes the right not to be unfairly
dismissed.
[32]
They submitted that the effect of the mine’s action was to
discriminate unfairly between employees based on their chosen
trade
union affiliation and to disenfranchise the individual appellants who
elected to be associated with AMCU, without doing so
in relation to
members of NUM and UASA.
[33]
The appellants rely on article 1 of ILO Convention 98 (Right to
Organise and Collective Bargaining Convention, 1949)
[22]
for their discrimination argument. The article reads as follows:
“
Article1
1.
Workers shall enjoy adequate protection against acts of anti-union
discrimination in respect of their employment.
2. Such protection
shall apply more particularly in respect of acts calculated to –
(a)
make the employment of a worker subject to the condition that he
shall not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason
of union membership or because of participation in union activities
outside working hours or, with the consent of the employer, within
working hours.”
[34]
The appellants’ reliance on this Convention is misplaced. The
facts and the law with regard to this matter do not sustain
an
argument that the mine engaged in anti-union discrimination. The
argument self-destructs, because, for it to be sustainable
the
appellants will have to show that NUM and UASA committed, in
collusion with the employer, anti-minority union discriminatory
conduct. There is no evidence that any of the workers’
employment was made subject to them joining or relinquishing trade
union membership. They were allowed to be members of AMCU. They were
not requested to relinquish their AMCU membership. In fact,
some of
them were members of AMCU as well as NUM. They were allowed to engage
and participate in union activities, without reprisal.
This is at
best an abstract challenge without a factual basis to support it.
[35]
The appellants contended that employees who face possible dismissal
for alleged misconduct (individual or collective) or incapacity
have
a right to be included in the pre-dismissal stage irrespective of
their trade union affiliation. Whereas employees who face
possible
dismissal based on the employer’s operational requirements do
not have the same right because of their union affiliation.
This they
contend is unfair discrimination.
[36]
Dismissals for misconduct or incapacity are not the same as
dismissals based on the employer’s operational requirements.
The former has to do with the conduct or attribute of the employee
while the latter occurs through no-fault on the part of the
employee.
Dismissal based on misconduct can be individual or collective. In
both instances, the employees, as a general rule, enjoy
the right to
be heard.
[23]
Dismissals based on the employer’s operational requirement can
also be collective or individual. In both cases the employee
or
employees have a right to be consulted before the employment is
terminated.
[37]
The appellants point out that in the case of dismissals for
misconduct, the entitlement to be heard is not linked with union
affiliation whereas in the case of dismissals based on the employer’s
operational requirements union affiliation is important.
[38]
Retrenchments normally apply across the enterprise. It is usually,
but not necessarily, a collective process with essentially
collective
outcomes. The issues about which the parties may consult on apply
across the board. The consultation process is a joint
consensus-seeking process in order to minimise or avoid dismissals.
It is not a fault seeking exercise, as in dismissals for misconduct
or poor performance.
[39]
Section 189 of the Act is also a manifestation of the policy choice
that the legislature has made. This policy choice in favour
of
majoritarianism is no doubt based on the fact that retrenchments are
usually collective in nature. Section 189 recognises that
the
interests of the employees are best served by the most representative
entity at the workplace. The entity obtains its seat
at the
consultation table based on its statistical dominance at the
workplace. Having obtained its statistical dominance and entered
into
a collective agreement with the employer as the exclusive
representative of the employees, consultation is more practical
and
less cumbersome than a multiplicity of consultations with each and
every employee at the workplace.
[40]
To require an employer to consult with each and every employee, when
an employer has entered into a collective agreement with
the
representative union, is impractical. It would also run against the
scheme of the Act. Mr Pretorius correctly pointed out that
the
consultation process contended for by the appellants is unworkable
because the employer would be obliged to implement the outcome
of a
collective bargaining process (the collective agreement) concluded
with the representative union. Where the parties have agreed
that the
representative union would be the exclusive bargaining agent for all
the employees the employer would not be able to consult
with minority
unions because it would be bound by the collective agreement. It
would also not be able to consult with each individual
employee
without breaching the terms of the collective agreement.
[41]
Although the consultation process is not negotiations or collective
bargaining, it may lead to the signing of a collective
agreement. The
employee representatives generally, and where there is a collective
agreement the representative union, are better
resourced and
experienced to deal effectively with the issues about which the
parties have to consult. To require the employer
to consult with a
multiplicity of individual parties rather than the representative
union at the workplace has the potential to
result in a wide and
irreconcilable range of outcomes depending on the consulting party’s
preferences.
[42]
I agree with Mr Pretorius that to allow consultation with a minority
union where there is a recognised representative union
would be to
enable the minority union to frustrate a mass retrenchment, which in
turn might lead to industrial strife instead of
industrial peace. I
agree. This would cause bedlam and chaos at the workplace. In order
to avoid such bedlam, it is best that the
representative union that
has won exclusive bargaining rights represent all the employees in
the bargaining unit, for retrenchment
consultation purposes. If there
is no representative union with exclusive bargaining rights, there
can be no objection if the employer
consults with all the recognised
unions at the workplace.
[43]
Section 189A, in keeping with the scheme of the Act, gives employees
the right to strike after mass dismissals. If a trade
union gives
notice of a strike in terms of section 189A, no member of the trade
union and no employee to whom a collective agreement
concluded by
that trade union dealing with consultation or facilitation in respect
of dismissals by reason of the employer’s
operational
requirement has been extended in terms of section 23(1)(d) may refer
a dispute concerning whether there is a fair reason
for the dismissal
to the Labour Court.
[24]
I agree with Mr Malindi that the power-play typically encountered in
collective bargaining is not envisaged in any other form of
dismissals except mass retrenchments.
[44]
The ILO Convention on Termination of Employment No 158 of 1982 also
makes a distinction between termination for reasons related
to the
worker’s conduct or performance and termination based on the
operational requirements of the employer. Article 7 of
Convention 158
provides as follows:
“
The
employment of a worker shall not be terminated for reasons related to
the worker’s conduct or performance before he is
provided an
opportunity to defend himself against the allegations made, unless
the employer cannot reasonably be expected to provide
this
opportunity.”
[45]
Article 13.1 of Convention 158 provides as follows:
“
1.
When the employer contemplates terminations for reasons of an
economic, technological, structural or similar nature the employer
shall:
provide the workers’
representatives concerned in good time with relevant information
including the reasons for the terminations
contemplated, the number
and categories of workers likely to be affected and the period over
which the terminations are intended
to be carried out;
give,
in accordance with national law and practice, the workers’
representatives concerned, as early as possible, an opportunity
for
consultation on measures to be taken to avert or to minimise the
terminations and measures to mitigate the adverse effects
of any
terminations on the workers concerned such as finding alternative
employment.”
[46]
Article 3 of the ILO Workers’ Representatives Convention No 135
of 1971 defines workers’ representatives as follows:
“
For
the purpose of this Convention the term workers’
representatives means persons who are recognised as such under
national
law or practice, whether they are –
(a) trade union
representatives, namely, representatives designated or elected by
trade unions or by members of such trade unions;
or
(b)
elected representatives, namely, representatives who are freely
elected by the workers of the undertaking in accordance with
provisions of national laws or regulations or of collective
agreements and whose functions do not include activities which are
recognised as the exclusive prerogative of trade unions in the
country concerned.”
[47]
The appellants contended that Convention 158 envisages an inclusive
process, with affected workers enjoying representation
in the
pre-retrenchment process. They contend that this imperative is
undermined where certain workers’ representatives are
not given
an opportunity to consult, with those workers not being represented
in the process but being subjected to the outcome
of the process.
[48]
The appellants further argued that section 189(1) is unconstitutional
because there is no rational relationship between the
section and a
legitimate governmental purpose. The appellants bear the onus of
establishing the absence of a legitimate government
purpose, or the
absence of a rational relationship between the section and that
purpose.
[25]
In
any event, this argument is flawed. The representative trade union
becomes the workers’ representative at the workplace
after a
proper collective agreement has been entered into by the
representative trade union and the employer and the agreement
lawfully extended to cover employees who are not members of the
representative trade union.
[26]
The representative trade union then becomes the representative of all
the employees, regardless of union affiliation. All the workers
who
fall within the purview of the collective agreement will therefore be
represented at the consultation table. In this case,
the collective
agreement expressly stated that NUM and UASA would be the exclusive
consulting parties for purposes of retrenchments.
[49]
In
Sikhosana
v Sasol
Synthetics
Fuels,
[27]
the
underlying purpose of section 189(1) was described as follows:
“
Section
189(1) quite deliberately renounces dual consultation in favour of
the single level of consultation which it provides. The
change
evinces, I take it, more than just a concern to make the process of
consultation simple and speedy: it embodies a desire,
evident
elsewhere in the Act too, that bargaining and consultation should be
collective rather than individual and that the legitimacy
of the
representative with the best claim to be consulted should not be
undermined by the claims to consult made by lesser interests.
The
effect of this section, thus, is to vest the appropriate collective
representative with sole power of representation…”
[28]
[50]
Although the Act does not expressly contain a provision relating to
fair representation it is, in my view, implied in the right
to be the
exclusive bargaining agent in the workplace or for a particular
bargaining unit, especially in retrenchments. When a
representative
union attains the right to be the exclusive consulting partner for
retrenchment purposes, it has a corresponding
duty to represent all
employees, members and non-members fairly and without discrimination.
The representative trade union must
serve the interests of all
employees in the workplace honestly, with discretion and it should
not act arbitrarily. It should also
not collude with the employer in
order to retrench more, or exclusively, members of the minority
union. In my view, there is also
a duty on the employer to ensure
that the terms of the collective agreement that it enters into with
the representative union do
not unfairly discriminate against
minority unions or non-members. In cases where there is no compliance
with this duty and it is
clear that the employee has been unfairly
retrenched such employee would be able to challenge the dismissal,
with or without the
assistance of the union of his or her choice.
[51]
There is no suggestion that the representative union in this case did
not act fairly towards all the employees which it represented.
[52]
As I have already indicated, the purpose of excluding minority unions
where there is a collective agreement with the representative
trade
union is to avoid multiplicity of consultations that would invariably
be impractical and might foment industrial strife.
The exclusion of
minority unions because they have not met the threshold agreed upon
does not mean that their members are not represented.
If the
representative union acts unfairly or discriminatory against an
employee and such conduct leads to the unfair retrenchment
of the
employee, such employee has the right to challenge the fairness of
his or her individual dismissal. Majoritarianism in this
context
serves the purpose of avoiding a multiplicity of consulting parties,
a proliferation of unions and industrial discontent.
In relation to
the extension of the agreement, it is now settled that it constitutes
public power and is therefore reviewable.
[29]
Disgruntled employees therefore have recourse to the law.
[53]
In
Cusa
v Tao Ying
[30]
it was said that:
“
Compliance
with a collective bargaining agreement is crucial not only to the
right to bargain collectively through the forum constituted
by the
bargaining council, but it is also crucial to the sanctity of
collective bargaining agreement. The right to engage in collective
bargaining and to enforce the provisions of the collective agreement
is an especially important right for the workers who are
powerless
to bargain individually over
wages
and conditions of employment. The enforcement of collective
agreements is vital to industrial peace and it is indeed crucial
to
the achievement of fair labour practices which is constitutionally
entrenched. The enforcement of these agreements is indeed
crucial to
a society which, like ours, is founded on the rule of law.”
[31]
[54]
There is no reason why collective agreements entered into, in the
context of retrenchments should not be adhered to. The distinction
between dismissals for misconduct and incapacity on the one hand and
dismissals for operational reasons is mere differentiation
and not
discrimination.
[32]
The differentiation is rational and not arbitrary. This is so because
different considerations apply in respect of the different
forms of
dismissals. Retrenchments are no-fault and generally collective
dismissals. In mass retrenchments employees may strike
after
dismissal. Dismissals for misconduct or incapacity are linked to the
conduct or attributes of the employee.
[55]
Majoritarianism in the context of retrenchments is a rational system
that is well-integrated in order to achieve the legitimate
governmental purpose of orderly collective bargaining and giving
representative unions primacy in order to promote workplace peace
and
avoid a proliferation of unions and a multiplicity of consulting
partners. Tugging the thread of majoritarianism with regard
to
consulting partners might unravel the entire sweater woven by the
Legislature in the Act. It is not a task that this Court should
undertake. It is a task best left for the Legislature to consider, if
it is so inclined. The constitutional challenge to section
189(1)
should fail.
[56]
In
AMCU
v COM (CC)
[33]
the
appellants challenged the constitutionality of section 23(1)(d) where
the collective agreement was extended in terms of that
section and
prohibited minority union members from striking. According to the
appellants, what was denied in this case was much
more because the
retrenchment agreement was extended to bind and dismiss employees who
were not members of the trade union parties.
They contend that their
challenge is narrowly framed, because they do not challenge the
constitutionality of the section
per
se
,
but instead, the challenge is directed at its application to
collective agreements which regulate retrenchments and dismissal
claims, which are extended to bind employees who are not members of
the trade union parties.
[57]
They sought an order that it was impermissible to extend the
retrenchment agreement to bind employees who were not members
of
trade union parties that; that the retrenchment agreement be set
aside and that the retrenchment of the individual appellants
be
declared to be of no force and effect and that the mine be directed
to reinstate them with back pay to the date of dismissal.
[58]
I have already pointed out that in
AMCU
v COM (CC)
it was said that majoritarianism is a recurrent theme throughout the
LRA,
[34]
and that it may be posited that for orderly and productive collective
bargaining some form of majority rule in the workplace has
to apply.
It was further stated that what section 23(1)(d) does is to give
enhanced power within a workplace, as defined, to a
majority union:
and it does so for powerful reasons that are functional to enhancing
employees’ bargaining power to a single
representative
bargaining agent.
[35]
The appellants accepted that the legislature exercised a policy
choice in favour of majoritarianism.
[59]
They, however, contended that the extension of retrenchment
agreements, without involving minority unions or non-members, in
terms of section 23(1)(d) is irrational because it does not serve a
legitimate governmental purpose and therefore offends the rule
of
law. In
AMCU v COM (CC),
it was said that:
“
The
rule of law is enshrined as a foundational value in the Constitution.
From this it flows as “axiomatic” that the
exercise of
public power must comply with the doctrine of legality, which stems
from the rule of law. This foundational principle
binds Parliament.
Its legislation must show “a rational relationship between the
scheme which [Parliament] adults and the
achievement of a legitimate
government purpose”, since “Parliament cannot act
capriciously or arbitrarily”.
[36]
[60]
In
Minister
of Home Affairs v
Scalabrini
Centre
[37]
the
following was said about the test for rationality:
“
But
an enquiry into rationality can be a slippery path that might easily
take one inadvertently into assessing whether the decision
was one
the court considers to be reasonable… rationality entails that
the decision is founded upon reason – in contra-distinction
to
one that is arbitrary – which is different to whether it was
reasonably made. All that is required is a rational connection
between the power being exercised and the decision, and a finding of
objective irrationality would be rare.”
[38]
[61]
In
AMCU
v COM (LAC)
[39]
this Court said the following about the extension of collective
agreements:
"It
would be impractical if minority workers were not bound to collective
agreements concluded at workplace level between the
employer(s) and
trade unions who represented the majority of the employees, simply
because they were not parties to that collective
agreement.
Furthermore, to require unanimity amongst all employees, despite
different trade union membership or affiliation would
be unrealistic.
To prohibit extension of the collective agreement to the minority
employees, who were not parties to the collective
agreement, so that
they are not bound by it, would not only undermine the enforcement
and therefore the effectiveness of the collective
agreement, but also
be destructive of collective bargaining per se, to peace in the
workplace and to the achievement of fair labour
practices Such
consequences are clearly not in conformity with the LRA and the
Constitution.
”
[40]
[62]
According to the appellants, an employer would have to consult with
all employees, represented and unrepresented. The appellants
further
contend that the decision to extend the retrenchment agreement to
them is irrational because they, as members of the minority
union,
were not consulted. Mr Myburgh submitted that the right to be heard
is a procedural requirement. He however contended that
procedural
fairness is not
per se
a requirement for rationality. He pointed out that the duty to a
hearing when exercising public power would be a requirement when
it
is necessary to achieve the legitimate governmental purpose.
[63]
In
Pharmaceutical
Manufacturers
[41]
it was stated that:
“
decisions
must be rationally related to the purpose for which the power was
given, otherwise they are in effect arbitrary and inconsistent
with
this requirement. It follows that in order to pass constitutional
scrutiny the exercise of public power by the executive and
other
functionaries must, at least, comply with this requirement.”
[42]
[64]
In
ARMSA
[43]
the Constitutional Court found that
“
Procedural
fairness is not a requirement for the exercise of executive powers
and therefore
executive
action
cannot
be challenged on the ground that the affected party was not given a
hearing unless a hearing is specifically required by
the enabling
statute”.
[44]
[65]
In
Albutt
[45]
the Constitutional Court found that the President had to afford
victims of apartheid era offences the right to be heard before
pardoning the alleged offenders. It further stated that:
“
In
these circumstances, the requirement to afford the victims a hearing
is implicit, if not explicit, in the very specific features
of the
special dispensation process. Indeed, the context – specific
features of the special dispensation and in particular
its objectives
of national unity and national reconciliation, require, as a matter
of rationality, that the victims might be given
the opportunity to be
heard in order to determine the facts on which pardons are
based.”
[46]
[66]
In
Minister
of Home Affairs
v
Scalabrini
[47]
the
court was at pains to emphasise that its conclusion does not mean
that there is a general duty on decision-makers to consult
organisations or individuals having an interest in their decisions
and that such a duty would only arise in circumstances where
it would
be irrational to take the decision without such consultation.
[67]
I agree with Mr Myburgh that the appellants’ argument that the
decision to extend the collective agreement was irrational
because
they were not consulted before the agreement was entered into is
without merit. There is no general duty on decision-makers
exercising
public power to consult interested parties in order for a decision to
be rational under the rule of law.
[68]
Section 23(1)(d) does not require expressly or implicitly that a
minority union should be consulted before a collective agreement
is
extended. The representative union would generally be in a better
position to consult with the employer, because it will have
all the
necessary information at its disposal and it represents all the
employees at the workplace. To grant a minority union the
right to be
heard in circumstances where the representative union has by means of
collective bargaining acquired the right to be
the only bargaining
agent would be subversive to collective bargaining and the principle
of majoritarianism which underpins section
23(1)(d).
[69]
The extension of a collective agreement without affording a minority
union or non-union members a hearing is rationally related
to the
achievement of the purpose of the section 23(1)(d) process. It
facilitates orderly collective bargaining; it avoids the
multiplicity
of consulting parties and it fosters peace and order in the
workplace. As stated above, the signing of a collective
agreement
between the employer and the representative union on the basis that
the agreement will also bind the minority union members
or
non-members does not mean that they were not represented.
[70]
The appellants alleged that the consultation process occurred
surreptitiously without them knowing. This is simply not true
because
the uncontested evidence is that the employer informed all the
workers about the consultation process. In my judgment the
challenge
is without merit.
[71]
The appellants also alleged that their right to freedom of
association has been infringed by the extension of the collective
agreement. In
Bader
Bop
[48]
the Constitutional Court pointed out with reference to ILO
Conventions and section 18 of our Constitution that:
“
These
rights will be impaired where workers are not permitted to have their
union represent them in the workplace disciplinary and
grievance
matters,
but are required to be represented by a
rival
union
that they have chosen not to join”.
[49]
The
appellants’ complaint is not that AMCU is not allowed to exist
or to organise or to represent its members.
[72]
The appellants contended that the Labour Court did not consider their
application that the extension of the collective agreement
should be
reviewed and set aside. The appellants, however, did not make out a
case for a rationality review of the extension. There
is no
indication that any of the retrenched workers were treated
differently because they were AMCU members or because they were
not
members of the representative union.
[73]
AMCU also sought to challenge the procedural fairness of the process
by way of an application in terms of section 189A(13)
of the Act.
This section reads as follows:
“
if
an employer does not comply with a fair procedure, a consulting party
may approach to label court by way of an application for
an order –
(a)
compelling the employer to comply
with a fair procedure;
(b)
interdicting order 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.”
[74]
The application in terms of section 189A(13) must be brought not
later than 30 days after the employer has given notice to
terminate
the employees’ services or if the notice is not given, the date
on which the employees are dismissed. AMCU was
out of time and it
sought condonation for the late prosecution of the application. It is
not necessary to consider the condonation
application for the simple
reason that AMCU does not have
locus
standi
to challenge the procedural
fairness of the dismissals. This is so because it was not a
consulting party and it therefore has no
locus
standi
to bring an application in terms
of section 189A(13).
[75]
The appeal ought to be dismissed.
[76] I accordingly make
the following order:
The appeal is dismissed.
_______________
C.J.
Musi, JA
Waglay
JP and Savage AJA concur with CJ Musi JA.
APPEARANCES:
On behalf of the
appellants: Adv Boda SC assisted by Adv Itzkin
Instructed by
Larry Dave INC,
Johannesburg.
For the first respondent:
Adv Pretorius SC assisted by Adv Van As
Instructed by:
Webber Wentzel Attorneys,
Johannesburg.
For the Fourth
Respondent: Adv Malindi SC assisted by Adv Nhlapo
Instructed by:
State Attorney,
Pretoria.
For the Amicus: Adv
Myburgh SC
Instructed by:
Edward Nathan
Sonnenbergs,
Johannesburg.
[1]
Act 66 of 1995.
[2]
NUM and UASA were the representative trade union because they are
members with the majority of the employees employed by the
mine. See
section 16 for the definition of representative trade union.
[3]
Section 1 of the Constitution of the Republic of South Africa, 1996
(the Constitution).
[4]
Section 2 of the Constitution.
[5]
Section 39 (2) of the Constitution.
[6]
Section 233 of the Constitution.
[7]
Kem-Lin
Fashions CC v Brunton and Another
[2001] 1 BLLR 25 (LAC).
[8]
Ibid para 19.
[9]
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
2017 (3) SA 242
(CC) para 43.
[10]
Transport
and Allied Workers Union of South Africa v PUTCO Ltd
2016 (4) SA 39 (CC).
[11]
Ibid para 61.
[12]
Section 213 of the Act.
[13]
Barney Jordaan: Collective bargaining under the new Labour Relations
Act: The resurrection of freedom of contract. Law, Democracy
and
Development
,
Vol 1,
No 1 (1997).
[14]
Sections 18(1) reads: “
An
employer and a registered trade union whose members are a majority
of the employees employed by that employer in the 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 section
12, 13 and 15.”
See also section 20 which states that “
nothing
in this Part precludes the conclusion of a collective agreement that
regulates organisational rights”.
[15]
Section 28.
[16]
Section 49
of the
Basic Conditions of Employment Act, 75 of 1997
.
[17]
Section 81.
[18]
Section 65
(1) (a) and (b).
Section 65
(3).
[19]
Section 189.
[20]
Aunde
South Africa (Pty) Ltd v NUMSA
[2011] 10 BLLR 945 (LAC).
[21]
Ibid para 32.
[22]
This Convention was ratified by South Africa on 19 February 1996.
[23]
Modise
and Others v Steve’s Spar Blackheath
[2000] 5 BLLR 496
(LAC).
[24]
Section 189A(10).
[25]
New
National Party of South Africa v Government of the RSA
and
Others
[1999] ZACC 5
;
1999 (5) BCLR 489
(CC) para 19.
[26]
South
African Transport and Allied Workers Union (SATAWU) and Others v
Moloto and Another NNO
2012 (6) SA 249
(CC) para 49 to 51.
[27]
Sikhosana
& Others v Sasol Synthetics
Fuels
(2000) 21 ILJ 649 (LC).
[28]
Ibid at 656G-I.
[29]
AMCU
and Others v Chamber of Mines of South Africa and Others
(AMCU v COM (CC))
2017 (3) SA 242
(CC) para 84.
[30]
Cusa v
Tao Ying Metal Industries and Others
2009 (2) SA 204 (CC).
[31]
Ibid para 56.
[32]
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) para 43 to 45.
[33]
See footnote 29
[34]
Ibid para 42.
[35]
Ibid para 44.
[36]
Ibid para 65
[37]
Minister
of Home Affairs and Others v Scalabrini Centre and Others
2013 (6) SA 421 (SCA).
[38]
Ibid para 65.
[39]
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[2016] 9 BLLR 872
(LAC) (
AMCU
v COM (LAC)
).
[40]
Ibid para 116.
[41]
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
party President of the Republic of South Africa
and others
[2000] ZACC 1
;
2000 (2) SA 674
(CC).
[42]
Ibid para 85.
[43]
Association
of Regional Magistrates of South Africa v President of the Republic
of South Africa
2013 (7) BCLR 762 (CC).
[44]
Ibid para 59.
[45]
Albutt
v Centre for the study of violence and Reconciliation and Others
2010 (3) SA 293 (CC).
[46]
Ibid para 72.
[47]
Ibid para 72.
[48]
National
Union of Metal Workers of South Africa and Others v Bader Bop (Pty)
Ltd and another
(2003) 24 ILJ 305 (CC).
[49]
Ibid para 34.