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[2014] ZALCJHB 13
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Chamber of Mines of South Africa v AMCU and Others (J 99/14) [2014] ZALCJHB 13; [2014] 3 BLLR 258 (LC) (30 January 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: J 99/14
In
the matter between:
CHAMBER
OF MINES OF SOUTH AFRICA
Applicant
ACTING
IN ITS OWN NAME & OBO
HARMONY
GOLD MINING COMPANY LTD
ANGLOGOLD
ASHANTI LTD SIBANYE GOLD LTD
and
AMCU
First
Respondent
NUM
Second
Respondent
SOLIDARITY
Third
Respondent
UASA
– THE
UNION
Fourth
Respondent
EMPLOYEES
LISTED IN ANNEXURE ‘A’
TO
NOTICE OF
MOTION
Fifth
and Further Respondents
Heard:
22 January 2014
Delivered:
30 January 2014
Summary: Urgent
application in terms of section 158 (1) (a) of the LRA –
extension of the operation of a collective agreement
to non- members
in terms of section 23 (1) (d) of the LRA – constitutional
right of minority union to collectively bargain.
Majoritarian
principle upheld – strike interdicted.
JUDGMENT
CELE, J
Introduction
[1]
This
application in terms of section 158 (1) (a) of the Labour Relations
Act
[1]
(the Act) was brought on
urgent basis and on less than 48 hours’ notice to declare, as
an interim relief, that the strike
action called by the first
respondent on 20 January 2014, set to commence at the mines of the
members of the applicant from 23
January 2014, was unprotected. The
applicant further sought, inter alia, an order to interdict the first
respondent (AMCU) from
inciting or otherwise encouraging its members
and or any other employees from embarking on the unprotected strike
and to interdict
the fifth and further respondents from embarking on
the unprotected strike.
[2]
The basis for the application was that AMCU members, being the fifth
and further respondents were bound by a collective agreement
which
regulated wages and other terms and conditions of employment dated 10
September 2013 entered into between the applicant,
on behalf of its
members, and the second third and fourth respondents. Clause 17 of
that agreement expressly prohibited a strike
by those bound by the
agreement. The applicant further sought condonation for its failure
to give the respondents a full 48 hour
notice of this application in
terms of section 68 (2) of the Act. AMCU, the fifth and further
respondents opposed this application
essentially on the basis that
the strike in question was protected and that they were not bound by
the wage agreement as a collective
agreement relied upon by the
applicant. They however, did not contest the urgency of this
application.
Factual
background
[3]
For the past 30 years, collective bargaining in the gold mining
sector has been conducted centrally at industry-level, with
the mines
being represented by the Chamber (an employers’ organisation).
Centralised agreements are concluded between the
Chamber
(representing its members) and various unions, which have generally
provided for uniform conditions of service across the
industry within
the bargaining unit. Since at least 2001, collective agreements have
been applied by the mines to employees who
are not members of the
party unions to ensure the standardisation of conditions of service
within the workplace.
[4]
In circumstances where it had recently commenced recruiting members
in the gold mining sector, AMCU was invited by the Chamber
to
participate in negotiations over the 2013-2015 wage agreement,
together with other recognised unions. On 24 June 2013, Amcu,
having
accepted the invitation, submitted a list of demands to the Chamber,
seeking the conclusion of an industry-wide agreement.
During the
ensuing negotiations, the Chamber represented a number of mines,
including Harmony Gold Mining Company Ltd, (Harmony),
Anglo Gold
Ashanti Ltd, (AGA) and Sibanye Gold Ltd, (Sibanye). The unions who
were party to the negotiations comprised AMCU, National
Union of
Mineworkers (NUM), Solidarity and UASA.
[5]
On 24 July 2013, NUM, Solidarity and UASA declared a dispute of
mutual interest and referred it to the CCMA. On 29 July 2013,
the
Chamber declared a dispute of mutual interest against AMCU and
referred it to the CCMA. This in circumstances where AMCU had
not
moved from its original demands at all. Certificates of
non-resolution were issued by the CCMA on 21 August 2013, in respect
of the dispute referred by NUM and UASA), on 27 August 2013, in
respect of the dispute referred by the Chamber against AMCU,
and on 29 August 2013, in respect of the dispute referred by
Solidarity.
[6]
On 3 September 2013, and having given notice thereof, NUM members
embarked on a protected strike. On 6 September 2013, the Chamber
sent
a revised offer to all the unions, with the deadline for acceptance
being the close of business on 9 September 2013. On 9
September 2013,
AMCU rejected this offer. On 10 September 2013, NUM, Solidarity and
UASA entered into a wage agreement with the
Chamber for 2013-2015
(‘the wage agreement’). The strike by NUM was resolved on
that basis. In terms of clause 1.2
of the wage agreement, read
together with annexure ‘A’ thereto, the wage agreement
was purportedly extended to employees
who were not members of the
party unions. That was done in circumstances where it was believed
NUM, Solidarity and UASA represented
the majority of employees at
each employer’s workplace.
[7]
In terms of clause 17 of the wage agreement, the agreement is in full
and final settlement of ‘all demands and proposals
made during
the course of negotiations that led to the conclusion of this
agreement’, and ‘wages and terms and conditions
of
employment’ for the period 2013-2015. Clause 17 also contains
various peace clauses, including that, for the period of
operation of
the agreement, the parties and any ‘other person bound by’
the agreement shall not: (i) seek to ‘review
or renegotiate’
wages and other conditions of employment; or (ii) engage in a strike
or lock-out over a demand ‘to
amend’ wages and other
conditions of employment.
[8]
A controversy then arose regarding whether the wage agreement binds
AMCU members–AMCU asserting that it does not, and
the Chamber
asserting that it does. AMCU called for a strike over matters of
mutual interest, more particularly demands relating
to wages and
terms and conditions of employment. The demands made appear in a
document annexed to the founding papers. On 20 January
2014, AMCU
gave notice to Harmony, AGA and Sibanye that its members would
commence with a strike on the morning shift on Thursday,
23 January
2014.AMCU thus provided 48 hours’ notice of the commencement of
the strike in writing as required by section 64
(1) (c) and there is
no dispute that the notice complies with the requirements of the Act.
The
issue
[9]
The issue turns on the validity of clause 1.2 of the wage agreement,
read together with annexure ‘A’ thereto, in
terms of
which the wage agreement was purportedly extended to employees who
were not members of the party unions, done in circumstances
where it
was believed NUM, Solidarity and UASA represented the majority of
employees at each employer’s workplace. The meaning
of how a
“workplace” should be construed is part of the bone of
contention as the parties have construed it differently.
At the heart
of the dispute lies the constitutional right of AMCU members to
strike. AMCU contended that the collective agreement
constituted a
fundamental intrusion into and breach of the right of employees to
strike over interest disputes as guaranteed in
the Constitution
[2]
and the Act. The right to strike was sacrosanct and without it, the
right to collective bargaining would simply be illusory.
Evidence
The
workplace
1.
Applicant’s case
[10]
Each of the companies represented by the applicant filed an affidavit
with motivation on why each of their mines or operations
constitutes
a single workplace. One picture which the applicant contends emerges
for each company is that the company has various
mining operations,
all of which are involved in the production of gold and mining
licences are held by the company not by individual
mines. The company
is tightly controlled from a head office or corporate office, with
the structure of the management portfolios
reflecting how the company
is managed overall with the financial and production planning,
including the setting of production targets
and staff levels,
occurring at head office-level.
[11]
Financial management is dealt with centrally, including the
management of debtors and creditors, and the receipt of income.
Centralised shared or support services are provided to the
operations, for example, human resources, and IT systems. Procurement
is managed centrally and the mines do not procure their own goods and
services. The mines are run by a general manager who reports
into
head office and is subject to overarching company policies and
controls. Operating procedures, mining methodologies, and plant
processes are standardised across the company. Security systems and
IT systems are standardised across the company. All assets
are owned
by the company, with movable assets being transferred between the
operations. All gold production is sold to Rand Refinery
on a total
production basis, not per mine.
[12]
Mine recruitment is run centrally and all employees are employed
directly by the company, which centrally manages employee
remuneration. Each employee may be transferred between operations.
Human resources policies are standardised across the company.
Collective bargaining takes place at a centralised-level, with
limited bargaining, typically over work practices, occurring at
mine-level. Organisational rights are granted on a company-wide basis
by AGA. Sibanye grants organisational rights on a per operation
basis
subject to an overarching company policy and subject to collective
bargaining occurring centrally and Harmony has granted
organisational
rights at mine-level, but the agreements also require collective
bargaining to take place centrally. Each of the
three
companies
has uniform branding and signage across all operations.
[13]
AGA is used as an example of how each company runs its business
mainly in South Africa. It owns and operates various gold mines
in
various countries in Africa, Australia and the America’s. AGA
is divided into various regions, one of which is the South
Africa
region consisting of 6 mines with the associated infrastructure. They
are:
13.1 Moab Khotsong Mine situated in
the North West Province. On 10 September 2013, the date on which the
wage
agreement was entered into, some 4310 employees were employed at
this mine;
13.2 Great Noligwa Mine situated in
the North West Province. On 10 September 2013, some 2624 employees
were employed
at this mine;
13.3 Kopanang Mine situated in the
North West Province. On 10 September 2013, some 4870 employees were
employed
at this mine;
13.4
Mponeng Mine situated
in Gauteng Province. On 10 September 2013, some 6419 employees were
employed at this mine;
13.5
Savuka Mine situated in
Gauteng Province. On 10 September 2013, some 861 employees were
employed at this mine; and
13.6
Tautona Mine situated
in Gauteng Province. On 10 September 2013, some 3898 employees were
employed at this mine.
[14]
The first 3 mines mentioned above, are situated within a radius of 12
km from each other, with the nearest big town being Orkney.
They are
separated from the other 3 mines by a distance of some 100 km. The
second 3 mines are situated within a radius of 7 km
from each other,
with the nearest town being Carletonville.
[15]
On 10 September 2013, AGA also employed some 2627 employees in its
South African Regional Services who have offices and workshops
located in close vicinity of the mines as well as a small Support
Office located centrally in Potchefstroom occupied mostly by
senior
management and specialist support staff. These employees provide
various services to the mines. They render,
inter alia
, the
following shared services to the mines: Engineering; Human Resources;
Property; Finance; and Procurement. In addition, two
further support
service divisions exist within AGA. These are Health Services with a
workforce of some 862 as at 10 September 2013.
These services are
rendered to the mines through primary healthcare facilities and
hospital services and Metallurgy Services and
Mine Waste Solutions
with a workforce of some 2465 as at 10 September 2013. The functions
provided by Metallurgy Services and Mine
Waste Solutions are directly
connected with the production of gold in that they deal with the
crushing and refining of the gold-bearing
ore produced by the mines.
The “plants” where this takes place are situated in close
proximity to each mine.
[16]
Sibanye, AGA and Harmony currently recognise 4 unions for the
purposes of collective bargaining, namely NUM, AMCU, UASA and
Solidarity. At Sibanye the number of employees who were members of
these unions as at 10 September 2013, the time the wage agreement
was
entered into, were: NUM -18 269; AMCU–9709;Solidarity–881;and
UASA-9861. From the above it is clear that the NUM,
together with
Solidarity and UASA, had 20285 members. These members constituted 61%
of the 33 166 employees of Sibanye and therefore
constitute a clear
majority of the employees in the workplace, as described below.
AMCU’s representation of 9709 members
equated to 29.27%
representivity. The names of AMCU members are listed in annexure “A3”
to the notice of motion.
[17]
The number of employees of AGA as at 10 September 2013 who were
members of these unions are: NUM–14 436 members; AMCU–8544
members; Solidarity–787 members; and UASA–2 610 members.
It is clear that NUM together with Solidarity and UASA had
as members
17 833 members. Their members constituted 61.3% of the employees in
the workplace as described below, and thus constituted
a clear
majority. AMCU’s representation of 8,544 members equated to
29.4% representivity. The names of the employees who
are currently
members of AMCU and who constitute the fifth and further respondent
are listed in annexure “A2” to the
notice of motion.
[18]As
at 10 September 2013, union membership within the workplace at
Harmony was: NUM-64,3 %; UASA-9,0 %; Solidarity-1,9 %; AMCU
-6,0%; and no union affiliation-8,8 %.
[19]
With
the recent rise of AMCU in the mining industry, AMCU has gained
members at some Harmony operations, and has made demands for
recognition at two mines. In respect of Masimong Mine, Harmony and
AMCU reached agreement for the granting of limited organisational
rights to AMCU, following the referral of a dispute to the CCMA. In
respect of Kusasalethu Mine, union rivalry between NUM and
AMCU led
to a number of unprotected underground sit-ins and strikes in the
latter part of 2012. On 14 February 2013, a collective
agreement
was concluded between Harmony, NUM, AMCU, Solidarity, UASA and the
CCMA whereby the parties committed themselves to
inter
alia
a code of conduct, the rule of law and established central collective
bargaining processes. Following disputes about verification
of
membership and organisational rights, Harmony and AMCU have been
engaged in negotiations regarding a recognition and procedural
agreement which would grant AMCU organisational rights and
recognition at the Kusasalethu mine.
[20]
On 4 October 2013, Harmony concluded a Recognition and Procedural
agreement with AMCU in respect of the Kusasalethu operations.
In
terms of this agreement, AMCU agreed to honour the current
distinction between the current Category 4 to 8 bargaining unit,
miners and artisans bargaining unit and official bargaining unit in
accordance with the established practice at the Chamber. In
addition,
AMCU agreed that company level issues such as matters of mutual
interest, including but not limited to wage rates, conditions
of
service, fringe benefits, allowances, job grading system or salary
scales, medical aid and retirement fund contribution rates
will be
negotiated at Chamber level.
[21]
In terms of the recognition agreement with AMCU, they also agree that
it shall negotiate annually , or as otherwise agreed
with Harmony, in
the Gold Sector Central Forum where Harmony is represented by the
Chamber. AMCU specifically agreed that in such
forum all existing
conventions and house rules will continue to apply. This, applicant
said, acknowledged that AMCU would abide
by current conventions and
house rules of established centralised bargaining under the auspices
of the Chamber which included that
all of Harmony's mines were
regarded as a single workplace for the purpose of collective
bargaining at the Gold Sector Central
Forum and collective agreements
entered at such level.
[23]
All three companies insisted that their mining operations operated as
single integrated units which were not independent of
one another by
reasons of their size, function or organisation. As with AGA the
modus
operandi
they
followed contributed to the company’s ability to remain
competitive, efficient, cost effective and it enhanced quick
decision-making.
In
the result, it was the Chamber’s case that the various mine
operations making up Harmony, AGA and Sibanye constituted a
single
workplace and that NUM, Solidarity and UASA, in conjunction with each
other, had majority representation within the Harmony,
AGA and
Sibanye workplace at the time of the conclusion of the wage
agreement, and accordingly, that the wage agreement was validly
extended in terms of the Act. The Chamber contended that the strike
by AMCU was unprotected.
AMCU’s
case
[24]
In its answering affidavit, AMCU stated that it was unable to deal
with all allegations raised by the applicant, due to limited
time
frames within which it could respond to the factual case put up by
the applicant. AMCU found it impossible, within the short
space of
time it had, to verify the applicant companies’ representivity
figures. It said that except for Harmony Gold, the
Chamber did not
provide the representivity figures for each mine until requested to
do so, at which time it was then too late.
It then denied the
correctness of the representivity figures. It chose not to ask for
more time and relied on the fact that the
order sought by the
applicant was interim The case of the union was that the strike
which was due to commence on 23 January
2014 by AMCU members was
protected and AMCU was not bound by the agreement relied upon by the
applicant for at least three independent
alternative reasons:
24.1
The collective agreement purportedly extended to AMCU members is in
substance a Sectoral Level collective
agreement which can only be
validly extended to non-parties by the Minister of Labour and cannot
be extended in terms of section
23 (1) (d) of the Act.
24.2
AMCU members have a constitutional right to strike. Even if the
collective agreement may be extended to AMCU
members, the collective
agreement cannot prohibit AMCU members, as non-parties, from striking
in support of demands for more generous
terms and conditions.
24.3
AMCU disputes that it is a minority union in the workplace as
submitted by the applicant. Each mine is a
separate workplace and
AMCU members constitute a majority at five of the individual mines. A
strike at these mines cannot be prohibited.
As these mines fall under
the operation of each one of the employer applicants, all the workers
employed by that applicant may
strike.
[25]
AMCU members were also not properly identified in the agreement. But
quite apart from this, the applicants have not demonstrated
that the
second, third and fourth respondents have, as their members, the
majority of employees employed by the employer in the
workplace.
First, it is not clear to AMCU whether, in calculating the
representivity figures, the applicants have taken into account
all
employees, including those falling outside the bargaining units, in
determining their representivity figures. It is accordingly,
disputed
that the applicant has demonstrated that the second, third and fourth
respondents are in the majority. Secondly, the applicant
has not
treated each mine as a separate workplace. A purposive interpretation
of the Act would require each mine to be treated
as a separate
workplace. On this basis, the first respondent is the majority at the
following mines:
25.1
Harmony’s Kusasalethu operation–Harmony Gold and AMCU has
concluded a separate recognition and
procedural agreement for the
Kusasalethu operation. AMCU has majority representation in the
bargaining unit as defined in this
agreement. The recognition
agreement has not been cancelled and remains in force. Pursuant to
clause 14 of the recognition agreement,
AMCU members at this
operation are entitled to strike. The conclusion of this agreement
also demonstrates that the Kusasalethu
operation is a separate
workplace. It has not been possible for AMCU to verify the
information contained in the supporting affidavit
of Mr David John
Thatcher because of the short notice of this application. The
deponent to the answering affidavit, AMCU President
is however, in a
position to point out that the contention advanced that Harmony
operates a single, integrated unit is not borne
out by the conclusion
of a specific recognition agreement for this operation. In terms of
clause 18.1 of the recognition agreement:
‘no amendment of this
agreement shall be of any force and effect unless reduced to writing
and signed by the parties’.
25.2
Sibanye’s Driefontein Consolidated Limited operation,
previously KDC West, the applicant’s attorneys,
in their letter
dated 21 January 2014, has admitted that AMCU has majority support at
this mine. Clause 26.2 of the recognition
agreement concluded between
Sibanye and AMCU stipulates that no amendment to any terms of the
agreement shall be effective unless
reduced to writing and signed by
the parties,
25.3
AGA’s Mponeng, Savuka and Tautona Mines–AMCU enjoys
majority support at all three of the aforementioned
mines, and is
still in the process of negotiating recognition agreements.
[26]
The mines operated independently by size and function. AMCU was
clearly the majority union at these mines. The agreement which
purportedly extended its terms to Amcu’s members was invalid
and of no force and effect because it calculated the representivity
figures in the workplace on a flawed premise. It was disputed that
the mines of Harmony, Anglo Gold and Sibanye Gold ought to be
grouped
in each category as a single workplace.
[27]
The non-variation clauses contained in the recognition agreements
mentioned above required AMCU to sign a written agreement
before
being bound thereby. It was therefore not permissible for the
applicants to extend the collective agreement concluded with
the
second to fourth respondents to AMCU as this contradicted the express
terms of the recognition agreements.
[28]
The Kusasalethu operation fell under Harmony, Driefontein operation
fell under Sibanye and the Mponeng, Savuka and Tautona
mines fell
under AGA. All the employees employed by these employers might strike
in support of the demands at these mines and engage
in a primary
strike. Clearly therefore, all employees of a single employer might
engage in a primary strike in support of workers
that may be employed
at one branch of the employer. In the result, the entire strike was
protected.
Evaluation
[29]
The parties in this matter differed in how this application is to be
determined. The case of the applicant is essentially reliant
on
section 23 (1) (d) of the Act and the meaning therein of the
‘workplace’. The respondents took the main position,
among the three proffered, as being that the constitutional right of
employees to strike
[3]
had to be
decisive. The applicant bore the onus to prove that it was entitled
to the order it sought. Section 23 (1) (d) of the
Act which the
applicant placed its reliance on reads:
‘
(1)
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]
Section 23 (2) of the Constitution relied on by the respondents
reads:
‘
Every
worker has the right
(a)
to
form and join a trade union;
(b)
to
participate in the activities and programmes of a trade union and
(c)
to
strike’.
[30]
A similar right is accorded by section 23 (3) Of the Constitution to
the employer to form and join an employers’ organisation.
Then
section 23 (5) of the Constitution reads:
‘
(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 a right in this Chapter, the limitation must
comply with section 36 (1)’. See also
Sandu
v Minister of Defence and Others
[4]
.
[31]
National legislation to be enacted to regulate collective bargaining
and which legislation may limit a right in the Bill of
rights is a
clear reference to the Act, section 23 (1) (d) of which is at issue.
For present purposes, I shall assume that section
23 (1) (d) of the
Act is constitutional. The meaning of ‘workplace’ in
section 23(1) (d) is for the present purposes
a key issue. The term
is defined in section 213 to read:
‘
(c)
in all other instances means the place or places where the employees
of an employer work.
If an employer carries on or conducts two or
more operations that are independent of one another by reason of
their size, function
or organisation, the place or places where
employees work in connection with each independent operation,
constitutes the workplace
for that operation’.
[32]
As correctly submitted by Mr A Myburgh for the applicant, the general
rule is stated in the primary part of the definition,
all the place
or places where employees of an employer work constitute a single
workplace. The second part of the definition is
in the nature of a
proviso, it is not an independent clause, but rather provides an
exception to the primary part of the definition
[5]
.
Commenting on a workplace Clive Thompson
[6]
wrote:
‘
A
“workplace” encompasses
all
the different places of work of an employer (unless some of them are
independent in the sense specified in the definition). On
the other
hand, one worksite may be fragmented into several “workplaces”
if independent operations are identified there.
Compare the
Australian approach, which focuses on the individual geographical
site: a workplace is “a single physical area
occupied by the
establishment from which it engages in productive activity on a
relatively permanent basis’. (Original emphasis.)
[33]
In his commentary on the Act Martin Brassey had the following to say:
‘
In the
private sector the nature of a “workplace” is a question
of fact. If the employees all work in one place, it
is the workplace:
if they are divided into separate branches or depots, the separate
locations can each be a workplace. Deciding
whether two locations are
separate workplaces entails an examination of the extent to which
they operate independently of each
other, which in turn entails a
consideration of the size, function and organisation of each.
Geographical separation will be important,
but will not always be
decisive.’
[7]
[34]
In
effect, it is thus for the applicant to establish that the various
mines or operations operated by Harmony, AGA and Sibanye constitute
a
single workplace for each entity and it is for AMCU to establish that
the various mines or operations constitute separate workplaces
on the
basis that they are ‘independent of one another by reason of
their size, function or organisation’. This approach
assumes
that section 23 (1) (d) is applicable in this matter. The contention
by the respondents is that it is not applicable because
the wage
agreement is a Sectoral agreement which could only be extended to
non- parties by the Minister of Labour in terms of section
32 of the
Act. The submission is further that
the
Chamber and its members are purporting to by-pass the legislative
scheme by extending the agreement to non-parties in the gold
mining
sector; and consequently, that the extension is invalid.
[33]
The latest interpretation of section 23 (1) (d) of the Act by this
court, per van Niekerk J, is found in the matter of
Transnet
SOC Ltd v National Transport Movement and Others
[8]
where
it was held that the provisions of section 23 (1) (d) applied only to
a case where a single employer in a single union contracted
and could
not be used by two or more unions or two or more employers to bind
third parties. The Court also recognised that even
if this was
permissible, it did not mean that they could prevent non-parties from
striking in support of their demands, by holding
that:
‘
[17] I am
not persuaded that section 18 read with clause 4.4 of the agreement
serves to limit any exercise of the right to strike
by the first
respondent. First, section 18 contemplates an agreement between a
single majority trade union and the employer, at
least where the
threshold agreement is not concluded in a bargaining council. The
section refers to an agreement between ‘an
employer and a trade
union..‘. It specifically does not contain the qualifications
incorporated in section 14(1) and section
16(1), which specifically
permits one or more unions acting jointly to make up the majority for
the purposes of acquiring the right
concerned. If it was the
intention that a union could act jointly with others to fix
thresholds applicable to other unions seeking
organisational rights,
it would have said so.
[18] In
the present instance, it is common cause that the collective
agreement was concluded between
Transnet and four trade unions.
Because it is an agreement concluded between an employer and more
than one union (none of which,
incidentally, is in its own right a
majority union), it is not an agreement contemplated by section 18,
and does not bind the first
respondent. Secondly, even if section 18
were to permit agreements between an employer and two or more
minority unions acting jointly
to bind non-party unions and fix
thresholds that they are required to meet to gain the organisational
rights referred to in sections
12, 13 and 15, there is no express
limitation in section 64 or section 65 which would preclude a
minority union demanding those
rights from seeking to bargain
collectively to acquire them, or from exercising its right to strike
should the employer resist
the demand. Given that this court is
enjoined to adopt an interpretation of the LRA that is consistent
with international labour
standards and with the fundamental rights
contained in section 23 of the Constitution, section 18 does not
present a bar to the
exercise of the right to strike in the present
instance’.
[34]
Section 23 (1) (d) of the Act was legislated for a purpose, which
this Court clearly recognised in the
Transnet
decision
above. Any interpretation of it that renders the section nugatory
needs to be avoided. In terms of this section a
collective
agreement binds employees who are not members of the registered trade
union or trade unions party to the collective agreement
if three
conditions stated therein are met. This section does not purport to
exclude from its operation any employee only on the
basis of being a
member of a trade union that is not a party to the collective
agreement, hence the third condition in the sub-section
referring to
the majoritarian principle.
The
Transnet
decision clearly states that
two
or more minority unions acting jointly to bind non-party unions and
fix
ing
thresholds
that they are required to meet to gain the organisational rights
,
would
not
preclude
a minority union demanding those rights
,
from
seeking to bargain collectively to acquire them.
[35]
With these legal principles in mind, I return to the facts of this
matter. There is a factual issue about how the workplace
is
constituted in respect of each company represented in this matter by
the Chamber. In resolving the dispute, I take note that
an answering
affidavit and a replying affidavit have been filed by the parties,
even though the order sought is still of interim
in nature. I shall
accordingly be guided by the principles enshrined in the case of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[9]
.
While the respondents set out to contradict the evidence of the
applicant on the structural arrangements of each company, no real,
genuine or bona fide dispute of fact has been raised against detailed
descriptions of each company given in the supporting affidavits
of
the applicant. The issue of the service of the papers within a period
shorter than 48 hours, though raised in the papers, was
not pursued
with when the matter was presented.
[36]
The workplace, according to the respondents is simply the area where
the organisational rights are to be exercised. It was
conceded though
that the greatest difficulty in defining a workplace arises in the
context of a business which operates at different
sites or has
different divisions. Different operations where employees work
independently of one another are contemplated as constituting
a
workplace. The respondents contend that such independence may be
established with reference to one or more of the criteria of
size,
function or organization. Indeed these criteria are not defined and
must be interpreted with reference to a specific organization.
[37]
Yet, with reference to the companies represented by the Chamber, a
common thread appears to run through each in that each company
has
various mining operations, all of which are involved in the
production of gold where mining licences are held by the company
and
not by individual mines. Each company is tightly controlled from a
head office or corporate office, with the structure of the
management
portfolios reflecting how the company is managed overall. Financial
and production planning, including the setting of
production targets
and staff levels, occurs at head office-level. Financial management
is dealt with centrally and this includes
the management of debtors
and creditors, and the receipt of income.
[38]
Centralised shared or support services are provided to the operations
for example, human resources, and IT systems. Procurement
is managed
centrally, with the mines not procuring their own goods and services.
Each mine is run by a General Manager who reports
into head office
and is subject to overarching company policies and controls.
Operating procedures, mining methodologies, and plant
processes are
standardised across each company. Security systems and IT systems are
standardised across the company. All assets
are owned by the company,
with movable assets being transferred between the operations. All
gold production is sold to Rand Refinery
on a total production basis,
not per mine. Recruitment of personnel is run centrally. All
employees are employed directly by the
company, and may be
transferred between operations. Employee remuneration is managed
centrally. Human resources policies are standardised
across the
company.
[39]
Collective bargaining has for many years been taking place at a
centralised-level, with limited bargaining, typically over
work
practices occurring at mine-level. Organisational rights are granted
on a company-wide basis by AGA. Sibanye grants organisational
rights
on a per operation basis subject to an overarching company policy and
subject to collective bargaining occurring centrally.
Harmony has
granted organisational rights at mine-level, but the agreements also
require collective bargaining to take place centrally.
[40]
Accordingly, I find that the applicant succeeded in proving that the
various operations or mines making up Harmony, AGA and
Sibanye
constitute a single workplace. The respondents did not effectively
dispute that NUM, Solidarity and UASA in conjunction
with each other
had majority representation within the Harmony, AGA and Sibanye
workplace, as now determined, at the time of the
conclusion of the
wage agreement. Only a bold denial statement was made which carried
less evidential weight against the detailed
explanation of the
applicant. From the figures given by the applicant
[10]
NUM
was the majority union which, in conjunction with Solidarity and UASA
formed an even larger majority. Unlike in the
Transnet
matter
supra
,
this was not the ganging up of the minority unions against one union.
The majoritarian principle should accordingly carry the
day in a
democratic collective bargaining exercise.
[41]
The respondents have raised an important constitutional issue of the
right of the employees, being members of AMCU, to strike,
to
collectively bargain and a right to freedom of association. Section
23 (1) (d) was said not to expressly permit the limitation
of the
right to strike of non-parties to the collective agreement. It was
contended furthermore, that it was clear from the text
of section 23
(1) (d) (iii) that the section was intended to apply to the workplace
of an individual employer and not to employers
acting collectively.
The respondents submitted that the words “the employer in the
workplace” clearly demonstrate that
the reach of the provision
did not extend to permit the conclusion of collective agreements by
more than one employer jointly as
the applicant has purported to have
done in this instance. The submission was that the words “that
person is bound by a collective
agreement” in s 65 (1) (a) must
be interpreted restrictively to be limited to the parties to that
collective agreement. The
further submission was that the Act and
particularly the provisions of section 23(1) (d) read with section 65
(1) (a) & (b)
must be read restrictively and in a manner which is
consistent with the Bill of Rights. I concur with these meritorious
submissions.
[42]
The effect of the collective agreement being assailed by the
respondents needs then to be considered. In doing so, the
constitutional
right of the employer to engage in collective
bargaining should similarly be upheld. As already pointed out
earlier, Sibanye, AGA
and Harmony currently recognise 4 unions for
the purposes of collective bargaining, namely NUM, AMCU, UASA and
Solidarity. The
collective agreement binds each company,
individually, with each of the unions. Put differently, the pulling
out of one of the
companies, for instance due to liquidation, would
not affect the legality and validity of the collective agreement.
Seen in that
light, each company has entered into a collective
agreement with each of the unions, without the other company or
companies lending
legality or efficacy to the collective agreement,
in the same manner as a federation could represent a group of unions.
Accordingly,
the provisions of section 23(1) (d) read with section 65
(1) (a) and (b) are applicable in this matter, without violating the
meaning
of the words “the employer in the workplace”. In
any event, a registered employers’ organisation is expressly
referred to in section 23 (1) (c) of the Act as a possible party to a
collective agreement.
[43]
In
Mzeku
and Others v Volkswagen SA (Pty) Ltd and Others
[11]
,
the LAC found that, in terms of section 23 (1) (d), a majority union
can conclude a collective agreement that is binding even
on employees
who are not its members. What remains clear is that section 23 (1)
(d) of the Act can be extended only to the employees
who are not
parties to the collective agreement. It may not lawfully be extended
to the employers. It is, inter alia, in this respect
that section 23
(1) (d) differs from section 32 of the same Act.
The
submission by the respondents that sector level collective agreements
may only be extended to non-parties by the Minister of
Labour, in
terms of section 32 of the Act, after the majority parties in the
sector have established a Bargaining Council for the
sector and area
in terms of Part C to the Act, has nothing to do with the extension
of collective agreements in terms of
section
23 (1) (d) of the Act. The submission that the applicant is
purporting to by-pass the legislative scheme for the promotion
of
Sectoral collective bargaining by concluding an agreement between
itself and the three unions and then to extend it to non-parties
in
the sector is far from the truth.
[44]
The
constitutional right of employees to strike in this matter must not
be seen in isolation from the right of the members of NUM,
Solidarity
and UASA to collectively bargain with their employers. Accepting that
NUM, Solidarity and UASA represented the majority
of the employees in
the workplace, it would be constitutional to allow the democratic
process of the majoritarian representation
to prevail. If the
minority employees represented at the workplace by AMCU were to
succeed and have a new wage agreement to come
about and to supplant
the existing collective agreement, the minorities would be governing
for the majority in the workplace. That
result is certainly
undesirable. Clearly therefore the submissions by the respondents are
untenable.
[45]
I conclude that the wage agreement contains a series of section 23
(1) (d) extensions on a per employer basis, which, in my
view, is
clearly permissible.
The
applicant has shown that it is entitled to an interim interdict
having shown the existence of a
prima
facie
right, that irreparable harm would visit the companies it represents
and that a balance of convenience favours the granting of
a relief
where there is no satisfactory alternative remedy.
[46]
Accordingly:
1.
A
Rule
Nisi
is issued calling upon the First Respondent and fifth to Further
Respondents herein to appear and show cause on
14
March 2014 at 10:00am
or
soon thereafter why a final Order should not be granted on the
, in the following terms:
1.1
Declaring
the strike action called by the first Respondent on the 20 January
2014, set to commence at the mines of the members of
the Applicant
from 23 January 2014, is unprotected;
1.2
Interdicting
the first respondent from inciting or otherwise encouraging its
members and or any other employees from embarking on
the unprotected
strike;
1.3
Interdicting
the fifth to further respondents from embarking on the unprotected
strike;
1.4
Ordering
the first respondent to communicate the terms of the court order to
its members on an urgent basis; and
1.5
Ordering
the first respondent to pay the costs of this application.
2.
Prayers
1.1 to 1.4 above shall operate as an interim interdict with immediate
effect and shall remain in force until such time as
it is confirmed,
varied, extended or discharged by this court.
3.
The
order shall be served on the first and fifth to further respondents
in the following manner:
3.1.
By
service on the first respondent’s Attorneys and heads office
3.2.
By
service on one of the first respondent’s branches
representatives at each mine where the strike has been called;
3.3.
By
attaching copies of the order, together with a letter explaining the
effect of the order to notice boards in hostels and gathering
areas
3.4.
By
reading aloud by a person/s nominated by the applicant to so many of
the fifth and further respondents as are present at the
applicant’s
premises at the time
3.5.
By
distributing copies of the order to as many of the fifth and further
respondents as may request same; and
3.6.
By
SMS to known cellular phone numbers of the fifth and further
respondents with the wording: “
the
Labour Court has interdicted the strike that was planned to commence
on 23 January 2014. The panned strike is interdicted as
of 30 January
2014 and you must continue to report for work.
____________
Cele J
Judge of the Labour
Court of South Africa.
APPEARANCES:
For
the appl
icant:
Mr A Myburgh SC with Mr G
Fourie
Instructed
by Edward Nathan Sonnenbergs
For
the respondents:
Mr P M Kennedy SC with Mr Boda.
Instructed
by L Dave Attorneys
[1]
Act Number 66 of 1995.
[2]
The Constitution
of the Republic of South Africa, 1996.
[3]
See section 23 of
the Constitution.
[4]
[2007] 9 BLLR 785 (CC).
[5]
Mzeku and Others v
Volkswagen SA (Pty) Ltd and Others
[2001] 8 BLLR 857
(LAC) at paras
55 and 67.
[6]
Thompson and Cheadle, et al Current Labour 1997
at 3.
[7]
Brassey Commentary
on the Labour Relations Act at A9-35–A9-36 (RS 2, 2006).
[8]
[2014] 1 BLLR 98
(LC).
[9]
[1984] 2 All SA
366 (A).
[10]
See paragraphs 16
to 18 hereof.
[11]
[2001] 8 BLLR 857
(LAC).