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[2014] ZALCJHB 223
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Chamber Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and Others v Association Of Mineworkers Of SA and Others; In Re: Association Of Mineworkers And Construction Union and Others v Chamber Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and Others (J99/14) [2014] ZALCJHB 223; [2014] 9 BLLR 895 (LC); 2014 (11) BCLR 1369 (LC); (2014) 35 ILJ 3111 (LC) (23 June 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 & on behalf of
HARMONY
GOLD MINING COMPANY LTD
ANGLOGOLD
ASHANTI LTD
SIBANYE
GOLD LTD
and
ASSOCIATION
OF MINEWORKERS OF SA
First
Respondent
NATIONAL
UNION OF MINEWORKERS
Second
Respondent
SOLIDARITY
Third
Respondent
UNITED
ASSOCIATION OF SA
Fourth
Respondent
EMPLOYEES
LISTED IN ANNEXURE ‘A’
TO
THE NOTICE OF
MOTION
Fifth
and Further Respondents
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION
First
Applicant
THE
PERSONS REFERRED TO IN ANNEXURE ‘A’
TO
THE NOTICE OF MOTION
Second
to further applicants
and
CHAMBER
OF MINES OF SOUTH AFRICA
First
Respondent
acting
in its own name & on behalf of
HARMONY
GOLD MINING COMPANY LTD
ANGLOGOLD
ASHANTI LTD
SIBANYE
GOLD LTD
NATIONAL
UNION OF MINEWORKERS
Second
Respondent
SOLIDARITY
Third
Respondent
UNITED
ASSOCIATION OF SA
Fourth
Respondent
MINISTER
OF
LABOUR
Fifth
Respondent
MINISTER
OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT
Sixth
Respondent
Heard:
5 and 6 June 2014
Judgment
delivered: 23 June 2014
Summary:
Return day of rule
nisi -
interim interdict
granted in respect of strike action where collective agreement
concluded with unions making up majority extended
in terms of s 23
(1) (d) of the LRA – extension of agreement to those employees
not members of unions party to the agreement
valid – rule
confirmed. Challenge to constitutionality of s 23 (1) (d) - section
not unconstitutional, constitutes justifiable
limitation on right to
engage in collective bargaining and to strike.
JUDGMENT
VAN NIEKERK J
Introduction
[1]
This is the return day of a rule
nisi
,
issued by Cele J on 30 January 2014.
[1]
For
various reasons, the return date was extended until 5 June 2014.
During this period, the first respondent (AMCU) filed a supplementary
answering affidavit, to which the applicant (the Chamber) replied.
The Chamber seeks to strike out the annexures attached to AMCU’s
supplementary affidavit and to have the rule made final. AMCU seeks
to have the rule discharged. For convenience, I shall refer
to this
as ‘the main application’.
[2]
AMCU has filed a counter-application. In that application, the
constitutionality of s 23 (1) (d) of the Labour Relations Act
(LRA)
is challenged. That subsection permits the parties to a collective
agreement to extend their agreement to employees who are
not parties
to the agreement (either because their union is not a party to the
agreement or because they are not members of any
union), provided
that the members of the union party or parties to the agreement
comprise a majority of employees in the workplace.
The
counter-application is opposed by the Chamber, the second respondent
(NUM), the third respondent (Solidarity), the fourth respondent
(UASA)
[2]
and the fifth
respondent, the Minister of Labour.
The
material facts
[3]
The facts are not in dispute. The Chamber is a registered employers’
organisation and acts as the collective bargaining
agent of its
members. These include the gold mining companies on whose behalf the
Chamber acts in the present proceedings, i.e.
Harmony, AngloGold
Ashanti and Sibanye. Collective bargaining, at least in respect of
wages and other substantive conditions of
employment, is conducted on
a centralised basis, in a non-statutory bargaining forum. Since 2001,
collective agreements concluded
in this manner have been applied by
the Chamber’s members, party to the agreement, to those
employees who are not members
of the party unions, and also to
non-union members.
[4]
During the latter half of 2013, the Chamber conducted negotiations
with all the unions that are party to these proceedings.
On 24 July
2013, NUM, Solidarity and UASA declared a dispute with the Chamber
and referred the dispute to the CCMA. On 29 July
2013, the Chamber
declared a dispute against AMCU, the latter not having moved from the
demands that it tabled on 24 June. During
August 2013, certificates
of non-resolution were issued by the CCMA in respect of all of these
disputes.
[5]
On 3 September 2013, after giving the required notice, NUM members
embarked on a protected strike in support of their demands.
On 6
September 2013 the Chamber sent a revised offer to the union parties
to the negotiation, including AMCU. On 9 September 2013,
AMCU
rejected the offer. On 10 September 2013 the Chamber signed an
agreement (the wage agreement) with NUM, Solidarity and UASA.
The
wage agreement comprises a review of wages and other conditions of
employment for the period 2013 to 2015.
[6]
Clause 1.2 of the wage agreement provides that in terms of s 23 (1)
(d) of the LRA, the agreement binds all other employees
(i.e.
employees not members of the trade unions party to the agreement)
employed in recognition units ‘
in the workplace of each
respective employer
’. Clause 17 of the wage agreement
records that the agreement is concluded in full and final settlement
of all demands and
proposals made during the negotiations and that no
party bound by the agreement will call for any strike or lockout in
support
of demands or proposals to amend wages and other conditions
of employment, for the duration of the agreement. The Chamber
signed the agreement as the representative of its members recorded in
annexure A to the agreement, each of whom recorded that the
agreement
was signed ‘
in respect of the workplace
’ defined
to mean, in each case, their respective mines and operations.
[7]
It is not disputed that while AMCU represents a majority of the
employees at five mines (three managed by AngloGold Ashanti,
one by
Sibanye and one at Harmony), the number of employees who are covered
by the wage agreement on extension constitute a majority
of the total
number of employees employed by each of the employer parties to the
agreement.
[3]
It is also not
disputed that despite an initial averment to the contrary and in
compliance with s 23 (1) (d), the majority threshold
was determined
by reference to the total number of employees employed by each of the
employer parties, and not on the basis of
those employees engaged by
each of them in the agreed bargaining unit. It is also common cause
that AMCU is party to a recognition
agreement at Harmony’s
Kusasalethu Operation, and at Sibanye’s Driefontein operation.
At AngloGold Ashanti’s
Mponeng, Savuka and Tautona Mines, AMCU
is in the process of negotiating a recognition agreement.
[8]
It warrants mention for present purposes that each of the employers
represented by the Chamber filed supporting affidavits,
in which they
deposed to facts in support of the contention that each of their
various mines or operations constitute a single
workplace for the
purposes of s 23 (1) (d). The picture that emerges from the
affidavits is that each of the employers has various
mining
operations, all of which are involved in the production of gold.
Mining licences are held by each company and not by the
individual
mines operated by them. Each company is controlled from a head office
where financial and production planning, including
the setting of
production targets and staff levels, is done. Financial management is
also dealt with centrally – this includes
the management of
debtors and creditors, and the receipt of income. Indeed, in the case
of Harmony, individual mines do not operate
their own bank accounts;
all operating expenses are paid by Harmony from a central account. In
each case, centralised support services
are provided to the mines’
operations, for example, in respect of human resources and IT
systems. Procurement is managed
centrally. Each mine is run by a
manager who reports directly to the head office concerned, subject to
an overarching set of policies
and controls. Operating procedures,
mining methodologies and plant processes are standardised across each
company. Security systems
and IT systems are standardised. All assets
are owned by the company, with movable assets being transferred
between mines. All
gold production is sold to Rand Refinery on a
total production basis (i.e. not by mine). Recruitment is managed
centrally. The
entity that comprises the employer in each instance is
the company, not the individual mine or operation. Employees may be
transferred
between operations, remuneration is managed centrally,
and human resource policies are standardised across each company. As
I have
mentioned, collective bargaining on substantive conditions
takes place at a centralised level, with limited bargaining
(typically
over work practices) occurring at mine level.
[9]
AMCU has failed to engage with the detailed factual averments
recorded in the supporting affidavits. In its answering affidavit,
AMCU states only, in bald terms, that a purposive interpretation of
the LRA requires each mine to be treated as a separate workplace,
and
that each of the mines operates independently by reason of size,
function and organisation. To the extent that AMCU’s
failure to
interrogate the factual averments made by the Chamber might be
ascribed to time constraints when these proceedings were
initiated,
in its supplementary answering affidavit, filed some two months after
the interim order was granted, AMCU does not deal
with the above
facts.
[10]
The supplementary affidavit does no more than proffer two additional
facts concerning the definition of a ‘workplace’;
first,
the existence of recognition agreements concluded between certain
mines and AMCU and secondly, the existence of reports,
filed by
individual mines, in terms of certain regulatory requirements. In
particular, AMCU contends that the recognition agreements
concluded
in respect of Harmony’s Kusasalethu operation, at Sibanye’s
Driefontein mine and the negotiations underway
at AngloGold Ashanti’s
Mponeng, Savuka and Tautona mines are destructive of the allegation
that each of the employer parties
operates as a single workplace, as
is the fact of charter compliance reports and separate social and
labour plans submitted by
each of the mines operated by the employer
parties.
[11]
In his judgment, Cele J considered and dismissed three principal
submissions made on AMCU’s behalf. The first was that
the wage
agreement in substance constituted a collective agreement concluded
at sectoral level, and that any extension of the agreement
could only
validly be effected by the minister acting in terms of s 32 of the
LRA. The second was a submission based on s 23 of
the Constitution,
to the effect that even if the extension of the agreement were
permissible under s 23, AMCU's members had a constitutional
right to
bargain collectively and to strike. Finally, AMCU contested the
definition of a ‘workplace’. In particular,
it contended
that the each of the employer parties’ mines and operations
were separate workplaces for the purposes of s 23
and that it was
entitled to strike, at least in respect of those mines where it was
the majority union.
[12]
Cele J held that s 32 applied only to collective agreements concluded
under the auspices of a bargaining council; that s 23
of the
Constitution did not present a bar to any extension of a collective
agreement under s 23 (1) (d) of the LRA; and that a
‘workplace’
for present purposes comprised the mines and operations of each of
the employer parties or, put another
way, ‘
the
wage agreement contains a series of section 23 (1) (d) extensions on
a per employer basis, which in my view, is clearly permissible
’.
[4]
On this basis, Cele J was satisfied that the Chamber had established
a
prima
facie
right to the relief that it sought, and that the other requirements
for the granting of interim relief had been satisfied. The
effect of
the order was to interdict the strike action initiated by AMCU at the
mines and operations owned by Harmony, AngloGold
Ashanti, and Sibanye
Gold, pending the return date.
The
main application
[13]
With this background, I turn first to the main application. To
succeed in the main application, the Chamber must establish
the
requirements for the granting of a final interdict. These are
well-established, and require the Chamber to demonstrate a clear
right, an actual or threatened invasion of that right and the absence
of any other suitable remedy.
[5]
[14]
In the present proceedings, the primary issues concern the
interpretation and application of the definition of a ‘workplace’
in s 213 of the LRA, the interpretation and application of 23 (1)
(d), and the connection between that subsection and s 65 (1)
(a),
given especially the constitutional rights to engage in collective
bargaining and to strike. AMCU also pursued its argument
in relation
to s 32 of the LRA and in particular, the submission that the wage
agreement is a sectoral agreement and ought to have
been dealt with
in the same or similar fashion as the extension of a collective
agreement under that section.
[15]
It is appropriate at this point to deal with the Chamber’s
application to strike out the annexures to the supplementary
affidavit filed by AMCU. Some two months after Cele J granted the
interim order sought by the Chamber, AMCU filed a supplementary
affidavit in the main application. At paragraph 5 of the
supplementary answering affidavit, the deponent states that the
purpose
of the affidavit is to provide additional facts to the court
concerning the definition of the ‘workplace’. In respect
of Harmony, it is averred that Harmony, in response to a request for
informal discovery made by AMCU, had discovered 10 separate
charter
compliance reports
[6]
in terms
of the Minerals Petroleum Resources Development Act 28 of 2002 (the
MPRDA) and nine separate social and labour plans.
[7]
The affidavit does not contain a single reference to any particular
portion of any annexure. There is no exposition in the affidavit
as
to which of the annexures or any part of them is relevant to the
determination of a workplace for the purposes of these proceedings.
The only averment that has any reference to the annexures is one to
the effect that the content of the reports, which the deponent
contends to be destructive of the allegation that Harmony operates as
a single workplace, will be referred to during argument.
A similar
approach is adopted in respect of reports submitted in terms of the
same regulatory measures by AngloGold Ashanti and
Sibanye. In total,
29 reports comprising 2846 pages are attached to the supplementary
affidavit.
[16]
In
Swissborough Diamond Mines (Pty) Ltd v Government of the
Republic of South Africa
1999 (2) SA 279
(T). Joffe J said the
following in relation to the proper use of annexures to affidavits in
motion proceedings:
‘
Regard
being had to the function of affidavits, it is not open to an
applicant or a respondent to merely annex to its affidavit
documentation and to request the Court to have regard to it. What is
required is the identification of the portions thereof on
which
reliance is placed and an indication of the case which is sought to
be made out on the strength thereof. If this were not
so the essence
of our established practice would be destroyed. The party would not
know what case must be met.’
[8]
[17]
In
Minister of Land Affairs in Agriculture v D& F Wevell Trust
2008 (2) SA 184
(SCA) 184 (SCA), Cloete JA said:
‘
It
is not proper for a party in motion proceedings to base an argument
on passages in documents which have been annexed to the papers
when
the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is manifest –
the other
party may well be prejudiced because evidence may have been available
to it to refute the new case on the facts…
A party cannot be
expected to trawl through lengthy annexures to the opponent’s
affidavit and to speculate on the possible
relevance of facts therein
contained. Trial by ambush cannot be permitted.’
[9]
[18]
In this court, in
Wood v Potane NO & others
[2004] 7 BLLR
722
(LC) Tokota AJ held:
‘
It would have
saved a lot of time and money if parties had refrained from attaching
unnecessary documents, which neither advanced
the case nor were they
of any assistance to the court in any way. It is not enough to simply
attach annexures without drawing the
court attention to the portions
on which reliance is placed on those annexures.
[10]
[19]
While the prospect of a trial by ambush and the potential prejudice
that it may have caused was to some extent attenuated by
the
assurance given by Mr. Kennedy SC, who appeared for AMCU, that he did
not intend to trawl through each of the annexures and
that they had
been filed simply to provide support for AMCU’s submissions
regarding the relevance of the reports for the
determination of a
‘workplace’ for the purposes of s 23 (1) (d), the fact
remains that the record has been unnecessarily
burdened by thousands
of pages of documents which might have been made available (should
that have been necessary) by means other
than annexing them to the
supplementary affidavit. AMCU has used the supplementary affidavit
merely to annex a document, and then
request the court to have regard
to it. The annexures serve no purpose, other than to assert that the
reports that they comprise
were submitted on a mine-by-mine basis.
This much is the subject of a series of (uncontested) averments in
the supplementary answering
affidavit. As matters transpired, not a
single one of the annexures was referred to during the course of
argument. The annexures
are irrelevant and serve only to further
burden an already substantial record. For these reasons, I intend to
grant an order striking
out the annexures.
[20]
I turn next to the merits of the main application and deal first with
the submission that the wage agreement constituted a
sectoral
agreement and that s 23 (1) (d) is thus not applicable. As I
understood the submission, the extension of the wage agreement
falls
to be regulated by s 32 of the LRA. Section 32 provides for the
extension of collective agreements concluded in a bargaining
council.
Bargaining councils are registered for defined sectors and areas, and
the conditions applicable to extension to non-party
employers and
employees are limited, amongst other things, by representativity
thresholds that must be met both in relation to
the conclusion of the
agreement and upon its extension.
[21]
The application of s 32 is not dependent on the nature of the
agreement sought to be extended; rather, it is concerned with
the
nature of the institution in which the agreement is concluded. In the
present instance, the wage agreement was not concluded
in a
bargaining council. Collective bargaining took place, as it has for
many years, in a non- statutory forum. Although negotiations
were
conducted at what might be described as a centralised level, there is
no bargaining council registered for the gold mining
industry. There
is no reason to depart from the plain meaning of s 32 and
specifically, the clear provision in s 32 (1) that any
extension may
be applied only to collective agreements concluded in bargaining
councils, and then only by the minister at the request
of the
council. In short, s 32 does not apply to the extension of a
collective agreement concluded outside of a bargaining
council, even
if that agreement
de facto
serves to regulate matters of
mutual interest in a particular sector.
[22]
I turn next to the application and interpretation of s 23 (1) (d).
The three sections of the LRA relevant to these proceedings
are s 23
(1) (d), s 65 (1) (a) and the definition of ‘workplace’
in s 213. Section 23 regulates the legal effect
of collective
agreements. Subsection (1) (d) 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’.
Section
213 defines a ‘workplace’ (other than in relation to the
public service) to mean:
‘
(c) … 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..
Section
65 (1) (a) provides that
‘
No person may take
part in a strike or lock-out or in any conduct in contemplation or
furtherance of a strike or lock-out if –
(a) that person is bound
by a collective agreement that prohibits a strike or lock-out in
respect of the issue in dispute.’
[23]
It is common cause that the wage agreement meets the requirements
established by s 23 (1) (d) (i) and (ii). In other words,
the
agreement identifies the employees to whom it is extended, and it
states that those employees are expressly bound by its terms.
The
central controversy before Cele J (and in these proceedings) is
whether Harmony, AngloGold Ashanti and Sibanye each constitute
a
single workplace, or whether each of their mines constitutes
independent workplaces. The significance of this, of course, is
that
if Harmony, AngloGold Ashanti and Sibanye each constitute a single
workplace, then the extension of the wage agreement in
terms of s 23
(1) (d) was valid and the strike called by AMCU unprotected by virtue
of s 65 (1) (a). But if, on the other hand,
each mine constitutes an
independent workplace, then the extension was not validly effected
(at least not in respect of those mines
where AMCU has majority
representation) and a strike by AMCU members would be protected.
[24]
Mr. Kennedy made two primary submissions on AMCU’s behalf
regarding the application and interpretation of s 23 (1) (d).
First,
he submitted that the statutory definition of ‘workplace’
had no application in the context of s 23 (1) (d).
Here, he
relied primarily on the preamble to s 213 and the words “Unless
the context indicates otherwise…:”
to submit that the
interpretation of ‘workplace’ must be considered in the
context of the LRA and in particular, with
s 65 (1) (a). The second
(related) submission was to the effect that when there are two
possible interpretations of ‘workplace’
under s 23 (1)
(d), which he submitted there clearly were, the court is enjoined to
prefer the interpretation that avoids limiting
the constitutional
rights of AMCU and its members.
[25]
The principle to be applied in relation to the definition of
‘workplace’ is that the statutory definition should
prevail unless it appears that the legislature intended otherwise.
That question is itself to be determined by asking whether the
application of the statutory definition would result in such
injustice or incongruity or absurdity as to lead to the conclusion
that the legislature could never have intended the statutory
definition to apply.
[11]
[26]
In the present instance, there is no incongruity or absurdity that
results from the application of the statutory definition,
nor is
there any injustice. The language of the definition of
‘workplace’ is plain. It is clear and unambiguous,
and
does not allow the determination of a workplace to depend (as AMCU
implies, by suggesting that every mine is a separate workplace
because it has higher levels of representation at certain mines than
it does at company level) on whether a particular trade union
has a
majority, or any particular level of representativity, at a
particular place at a particular time. The definition requires
a
court to focus exclusively on whether those operations carried on by
the employer in different places are ‘independent’
of one
another. Independence is to be determined only by reference to the
size, function or organisation of the operations concerned.
Again,
there is no basis for any interpretation that introduces extraneous
considerations such as whether a trade union enjoys
a particular
level of representativity at a particular place. That is a matter
that is relevant only at the second stage of the
enquiry (for the
purposes of determining whether the majority threshold has been met),
once the workplace has been determined.
[27]
In short, there is no genuine question of interpretation in the
present instance. The real complaint by AMCU would appear to
be that
the application of an unambiguous definition to the undisputed facts
creates legal consequence which it does not like.
That is not a basis
to discharge the rule
nisi
. What is required is an application
of the definition of ‘workplace’ to the facts and a
determination of the place
or places where the employers’
employees work and whether the employers’ mines, to the extent
that they comprise different
operations carried on by each employer,
can be said to be independent of one another by reason of their size,
function or organisation.
[28]
Perhaps the initial enquiry in any determination of the workplace for
the purposes of s 23 (1) (d) is to identify the entity
that comprises
the employer, since it is the ‘employees of an employer’
who work in a workplace. In the present instance,
it is not disputed
that each of the Chamber’s members represented in these
proceedings, Harmony, AngloGold Ashanti and Sibanyane,
are the
respective employers of those employees whom they contend are bound
by the wage agreement, either on account of membership
of the union
parties or extension of the agreement. In other words, the ‘employees
of an employer’ for the purposes
of the definition of
‘workplace’ are all the employees of Harmony, AngloGold
Ashanti and Sibanye respectively.
[29]
Next, it is necessary to determine the ‘place or places’
where the employees work. This will determine, by way
of general
rule, the single ‘workplace’ for the purposes of the LRA.
The second part of the definition is in the nature
of the proviso –
it creates an exception to the primary element of the definition.
Brassey comments:
‘
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 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.’
[12]
[30]
In the present instance, as I have indicated, there is consensus on
the relevant factual matrix. What remains is to apply the
definition
to the facts. Here, as I have indicated, Harmony, Anglo Gold Ashanti
and Sibanye Gold are the respective employers of
the affected
employees. The starting point must therefore be that the places where
the employees work, even though they are geographically
disparate,
constitute the workplace for the purposes of s 23 (1) (d). It is not
seriously disputed that the places where the employees
work are the
mines and operations of each of the employer parties to the wage
agreement.
[31]
In support of its contention that each mine is a discrete workplace,
AMCU relies on the proviso in the definition to contend
that the
mines fall to be treated as an independent unit. In my view, all of
the evidence points to a contrary conclusion, to an
integrated
operation, certainly by reference to function and organisation. To
the extent that AMCU’s supplementary affidavit
makes mention of
the additional facts of the existence of recognition agreements and
statutory reports, there are obviously relevant
to the determination
of independence, by reference particularly to the factors of function
and organisation. These are that AMCU
enjoys majority support at
three of Anglo Gold Ashanti’s mines (Mponeng, Savuka and
Tautona), and that two charter compliance
reports and two social and
plans (one each for the mines in the West Wits and Vaal River areas).
AMCU contends that the latter
are destructive of the allegation that
Anglo Gold Ashanti operates as a single workplace. Indeed, AMCU
appears to submit that these
factors are decisive of the fact that
each mine operates independently.
[32]
In relation to the first factor, the fact that AMCU enjoys majority
support at three of Anglo Gold Ashanti’s mines is
of little if
any consequence. A ‘workplace’ for the purposes of the
LRA is not a bargaining unit as defined by the
parties to a
collective bargaining relationship. The definition, by stipulating
the place or places where the employees work as
the primary criterion
with three further subcategories that may be relevant where two or
more independent operations are conducted,
clearly did not intend
that any agreed bargaining unit would be a directly relevant
criterion. In any event, the agreements on
which AMCU relies makes it
abundantly clear that collective bargaining on wages and substantive
conditions of employment will be
dealt with at central level.
[33]
The fact that reports have been submitted in the discharge of
obligations under the charter or in terms of other regulations
promulgated under mining legislation does not, in my view, tip the
scales in favour of a narrower definition. In the replying
supplementary affidavit, the reasons for separate reporting are
explained. In short, the submission of the reports in question
is
regulated by statute, or because the reports on a permanent basis of
into a specific mining rights granted in respect of a particular
farm
of farms, which accounts for the fact that multiple reports have been
submitted. In addition, reports are submitted on a provincial
basis
as required by the DMR. In any event, it is not disputed that there
is a high degree of supervision at a centralised level
over the
content and submission of both the plans and reports.
[34]
To the extent that AMCU places determinative weight on geographic
proximity, this is not irrelevant factor, but must be weighed
with
other factors relevant to a determination of independence by virtue
of size, function and organization. In this regard, Clive
Thompson
has contrasted the definition and the LRA with that applicable in
Australia:
‘
A ‘workplace’
encompasses all the different places of work of an employer (unless
some of them are independent in the
same 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 the relatively permanent
basis.’
[13]
[35]
The only conclusion to be drawn from the above facts is that the
places where the employees of Harmony, Sibanye and AngloGold
Ashanti
work are the mines and operations respectively managed by those
entities, and that none of mines and operations is independent
of the
other by reason of size, function or organisation. There is no
factual basis in the papers before me to conclude that each
of the
employer’s mines operate as independent units. On the contrary,
as Cele J found, Harmony, AngloGold Ashanti and Sibanye
each
constitute a ‘workplace’ for the purposes of s 23 (1)
(d). It follows that the wage agreement was validly extended
in terms
of that subsection and that any strike by members of AMCU would be in
breach of s 65 (1) (a).
[36]
I am satisfied that the Chamber has established a clear right to the
relief it seeks and that all of the other requirements
relevant to
final relief having been satisfied, the rule
nisi
issued on 30
January 2014 stands to be confirmed.
[37]
AMCU has also raised an interpretational issue in relation to s 23
(1) (d). In particular, Mr. Kennedy submitted that the word
‘workplace’, taken in context, can be reasonably
interpreted to mean that each individual mine is a workplace. He
contended that the court is accordingly enjoined to adopt that
interpretation, since it is the interpretation that best promotes
the
fundamental rights to engage in collective bargaining and to strike.
If the definition is found not to be reasonably capable
of the
interpretation contended for, then AMCU submits that s 23 (1) (d),
read with s 65 (1) (a) and the definition of workplace,
is
unconstitutional. This is the relief sought in the counter
application. The main and the counter-application are therefore
interrelated. None of the respondents in that application
disputes that s 23 (1) (d), read with s 65 (1) (a) and the definition
of ‘workplace’ in s 213, constitutes a limitation on the
right to strike; they contend that s 23 (1) (d) constitutes
a
justifiable limitation on those rights. The enquiry into the
justification cuts across both applications. I intend therefore
to
revisit the interpretational issue raised in the main application at
the conclusion of the justification enquiry.
The
constitutional challenge to s 23 (1) (d)
The
nature and extent of the challenge
[38]
Section 23 of the Constitution, headed “Labour relations”
and which is part of the Bill of Rights, reads as follows:
‘
(1)
Everyone has the right to fair labour practices.
(2)
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’.
(3)
Every employer has the right -
(a)
to form and join and employers’ organisation; and
(b)
to participate in the activities and programmes of an employers’
organisation.
(4)
Every trade union and every employers' organisation has the right –
(a)
to determine its own administration, programmes and activities;
(b)
to organise; and
(c)
to form and join a federation.
(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).
(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).
[39]
In its counter-application, AMCU seeks a declaratory order to the
effect that the interpretation placed by Cele J on the provisions
of
section 23 (1) (d) read with s 65 1 a and the definition of
'workplace’ in s 213 of the LRA, conflicts with the
constitution
because the interpretation violates the rule of law and
the applicants fundamental rights terms of section 10 (human dignity)
18
(freedom of Association) 22 (freedom of trade occupation and
proficient) 23 (1)( 2) (a),( b), (c) (4) (a) and (b) and (5) (labour
relations) and s 34 (administrative justice) of the Constitution of
the Republic of South Africa, 1996. In the alternative, to
the extent
that the court finds that interpretation placed on the provisions of
section 23 (1) (d) read with s 65 (1) (a) and the
definition of
‘workplace’ in s 213 by Cele J is correct (because the
sections cannot reasonably be interpreted otherwise)
AMCU seeks a
declaratory that the provisions of s 23 (1) (d) read with s 65 and
the definition of ‘workplace’ in s
213 , conflict with
the Constitution of the Republic of South Africa, in relation to the
particular sections referred to above,
to the extent that these
provisions grant private employers and trade unions the power to
secure by means of an extended collective
agreement the imposition of
binding obligations on employees and trade unions not party to the
agreement, and to grant private
employers and trade unions power by
means of an extended collective agreement to prevent non-party unions
and their members from
exercising the fundamental rights concerned,
including but not limited to the right to bargain collectively and to
strike over
matters of mutual interest. On this basis, AMCU seeks to
have extension of the wage agreements declared unconstitutional and
invalid
and the strike called by AMCU declared protected.
[40]
At the hearing of the counter-application, AMCU abandoned that part
of the relief sought relating to the interpretation placed
on s 23
(1) (d) by Cele J, leaving only the direct constitutional attack on s
23 (1) (d) for determination.
[14]
The counter-application strikes at central features of the system of
collective bargaining established by the LRA. The fundamental
rights
on which AMCU relies are the rights to fair labour practices, the
right to dignity and the right to freedom of trade, occupation
and
profession.
[41]
Mr. Boda, who presented argument in the counter-application,
submitted first that the impugned sections offend the principle
of
legality. In particular, he submitted that the provisions of s 23 (1)
(d) permit private actors the right to impose terms and
conditions of
employment on unwilling parties without intervention from any
independent authority that is bound to uphold the exercise
of a
discretion which is lawful, reasonable and procedurally fair.
Secondly, he submitted that the legislation places no duty on
the
parties who extend an agreement in terms of s 23 (1) (d) to act in
the public interest or in the interests of those parties
sought to be
bound. In this regard, the parties who seek extension of the
collective agreement are not constrained, as are those
who exercise
public power, and may even act arbitrarily or capriciously. Thirdly,
it is not possible to review the actions of private
actors as it is
to review a decision made by a public authority. Fourthly, he
submitted that the provisions of s 23 (1) (d), read
with s 65 (1)
(a), deny non-parties to the collective agreement, for the duration
of the agreement, the right to exercise fundamental
rights under the
Constitution, in this instance, the right to engage in collective
bargaining and participate in strike action.
[42]
In regard specifically to the constitutional right to engage in
collective bargaining and the rights to freedom of association
and to
bargain collectively, AMCU submits that underpinning these rights is
the right to dignity and in particular, the right to
dignity of
workers who, in our constitutional order, may not be treated as
coerced employees. Secondly, AMCU asserts that the right
to strike is
a critical component of the system of collective bargaining, and
without the right to strike, the right to bargain
collectively is
rendered illusory. Apart from the rights to engage in collective
bargaining and to strike, AMCU invoked the rights
to dignity, freedom
of association, freedom of trade, occupation and profession and the
right to just administrative action.
[42]
This attack is diffuse and far-reaching. In
Phillips
and others v National Director of Public Prosecutions
[15]
the Constitutional Court emphasised the need to plead constitutional
challenges to legislation explicitly:
‘
The constitutional
challenge should be explicit, with due notice to all affected. This
requirement ensures that the correct order
is made; that all
interested parties have an opportunity to make representations; that
the relevant evidence can, if necessary,
be laid and that the
requirements of the separation of powers are restricted.”
[44]
In
South
African Transport and Allied Workers Union v Garvas
[16]
Jafta J explained the need for accuracy in pleadings in this context:
‘
Accuracy in the
pleadings is important not only for purposes of defining issues for
parties involved in a particular litigation.
Orders of constitutional
invalidity have a reach that extends beyond parties to a case where a
claim for a declaration of invalidity
is made. But more importantly
these orders intrude, albeit in a constitutionally permissible
manner, into the domain of the legislature.
The granting of these
orders is a serious matter and they should be issued only where the
requirements of the Constitution for
a review of the exercise of
legislative powers have been met. In s 2, the constitution proclaims
its supremacy and declares that
law or conduct inconsistent with it
is invalid. But the power to determine whether a particular law is
indeed inconsistent with
the Constitution is conferred on superior
courts. Section 72 (1) (a) obliges courts to declare law or conduct
inconsistent with
the Constitution to be invalid. The declaration
must, however, be restricted to the extent of the inconsistency. The
inconsistency
delineates the scope of the judicial review and the
consequent declaration of invalidity in respect of a particular
challenge…
Holding parties to
pleadings is not pedantry. It is an integral part of the principle of
legal certainty which is an element of
the rule of law, one of the
values on which our Constitution is founded. Every party
contemplating a constitutional challenge should
know the requirements
it needs to satisfy and every other party likely to be affected by
the relief sought must know precisely
the case it is expected to
meet.’
[17]
[45]
The constitutional challenge foreshadowed by prayer 4 of the notice
of motion is directed at s 23 (1) (d) read with s 65 (1)
(a) and the
definition of ‘workplace’ set out in s 213. In other
words, the order sought appears to be directed at
the combined effect
of the sections concerned as opposed to the validity of any one or
more of them. But it would appear from the
papers that
notwithstanding AMCU’s ambivalence and the diffuse and vague
manner in which the relief sought in the notice
of motion has been
cast, the real constitutional complaint is against s 23 (1) (d)
because it allows for the extension of agreements
to non-party
employees, and thereby denies them the right to strike. Although it
says that s 23 (1) (d) must be read with s 65
(1) (a) and the
definition of ‘workplace’, I do not understand AMCU to
seek an order to the effect that the latter
two provisions are also
unconstitutional. The case made out in the founding affidavit, which
primarily concerns s 23 (1) (d) and
why it should be struck down, is
to the effect that the section lacks the checks and balances
applicable to the extension of collective
agreements in terms of s 32
of the LRA, that it is in conflict with the rule of law, and that a
system of administrative approval
system should replace it.
[18]
[46]
All of the respondents accept that the right to strike is limited by
s 65 (1) (a), and indirectly, by s 23 (1) (d). Given these
concessions, in my view, it is not necessary for the court to
determine whether any of the other rights invoked by AMCU is
implicated
– the most directly implicated right is the right to
strike. What is primarily at issue in the present matter is the
limitation
on the right to strike posed by s 23 (1) (d). If that
limitation is justifiable, then any incidental limitation of other
rights
will also be justifiable.
The
rule of law attack
[47]
Central to AMCU’s rule of law attack is the assertion that the
parties to a collective agreement that is extended in
terms of s 23
(1) (d) are effectively exercising public power. It is clear from the
terms of s 23 and the regulation of the binding
effect of collective
agreements generally that in circumstances such as the present,
correctly understood, this is an instance
of legislation (adopted by
parliament in the exercise of its public power) that creates legal
rights obligations flowing from the
conduct of private parties. It
does not follow that simply because an organ of state exercising
public power is constrained by
the principle of legality to exercise
no power beyond that conferred on it by law, that the conduct of
private parties may not
have legal consequences for third parties.
Section 23 (1) (d) is not concerned with the exercise of public
power. It is simply
an instance of national legislation creating
legal consequences that flow from specific facts. The extension of an
agreement in
terms of section 23 (1) (d) take operation of a
legislative provision - if the agreement meets the conditions set out
in subparagraphs
(d) (i) to (iii), the agreement binds all employees
in the workplace by operation of law. There is nothing inimical to
the rule
of law for legislation to provide for legal consequences to
flow from the conduct of private parties. Legislation does so
frequently,
in a range of contexts, and without requiring the consent
of all affected parties.
[48]
To the extent that AMCU persisted with its reliance on additional
constitutional rights, the extension of a collective agreement
to a
person does not implement the right to dignity. To the extent that
the right is implicated all, this is only indirectly as
a consequence
of the limitations of the right to strike and to bargain
collectively. A separate enquiry into the right to dignity
will not
lead to a different outcome. Similarly, in regard to the right to
freedom of trade occupation and professional under s
22 of the
Constitution, s23 (1) (d) does not make it impossible for a minority
union to secure organisational rights in terms of
the LRA, or
potentially to secure majority representativity. To the extent that
any extension in terms of s 23 (1) (d) serves to
limit the right to
freedom of association, that limitation is both indirect and limited.
Section
23 and the limitation of the right to strike
[49]
All of the parties to the present enquiry accept that the right to
strike is a fundamental constitutional right, predicated
as it is on
the need to redress inequality in social and economic power in the
relationship between employer and employee. It also
has associational
elements which serve to enhance and reinforce other social and
political rights in the Constitution, particularly
freedom of
association.
[19]
In the first
certification case,
Chairperson
of the Constitutional Assembly, ex parte: In re Certification of the
Constitution of the Republic of South Africa,
[20]
the Constitutional Court observed:
‘
Collective
bargaining is based on the recognition of the fact that employers
enjoy greater social and economic power than individual
workers.
Workers therefore need to act in concert to provide them collectively
with sufficient power to bargain effectively with
employers. Workers
exercise collective power primarily through the mechanism of strike
action.’
Later,
in
NUMSA
& others v Bader Bop & another
,
[21]
the same court observed:
‘
That right [the
right to strike] is both of historical and contemporaneous
significance. In the first place, it is of importance
for the dignity
of workers who in our constitutional order may not be treated as
closed employees. Secondly it is through industrial
action that
workers are able to assert bargaining power in industrial relations.
The right to strike is an important component
of a successful
collective bargaining system. In interpreting the rights in section
23, therefore, the importance of those rights
in promoting a fair
working environment must be understood. It is also important to
comprehend the dynamic nature of the wage work
bargain and the
context within which it takes place.
[50]
However, in the scheme of the LRA and s 23 of the Constitution, the
right to strike is by its nature not absolute and which
may
justifiably be limited in certain situations. This must be so because
a strike is not an end in itself. Rather, a strike is
primarily a
means to the end of an effective collective bargaining system in
which workers are able ultimately to exercise power
in order to
influence the terms and conditions of employment. All of the parties
to the present proceedings accept this proposition.
The issue is
whether the limitation on the right to strike established by s 23 (1)
(d) read with s 65 (1) (a) and the definition
of ‘workplace’
is reasonable and justifiable.
[51]
Section 36 of the Constitution provides:
‘
1.
The rights in the Bill of Rights may be limited only in terms of the
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 for in subsection (1) or in any other provision of
the constitution,
no law may limit any right entrenched in the Bill
of Rights.
[52]
In
Bader Bop
the court said:
‘
The first question
that arises is whether the Act is capable of being interpreted in the
manner contended for by the applicants,
or whether it is only capable
of being read as the respondents and the majority judgment in the LAC
suggest. If it is capable of
a broader interpretation that does not
limit fundamental rights, that interpretation should be preferred.
This is
not to say that where the legislature intends legislation to limit
rights, and where that legislation does so clearly but
justifiably,
such an interpretation should not be preferred in order to give
effect to the clear intention of the democratic will
of Parliament.
If that
were to be done, however, we would have to be persuaded by careful
and thorough argument that such an interpretation was
indeed the
proper interpretation and that any limitation caused was justifiable
as contemplated by section 36 of the Constitution
(own emphasis).
[22]
[53]
In practical application, s 36 requires, without adopting a
mechanical ‘checklist’ approach, a consideration first
of
the purpose of the provision that limits a right in the Bill of
Rights and secondly, a consideration of the impact of the law
on the
affected right. The first consideration is one that requires the
court to determine whether the law which limits a right
serves a
legitimate government purpose; the second is sometimes referred to as
a ‘proportionality’ analysis. In
S v Bulwana
the
Constitutional Court summed up the approach as follows:
‘
In sum, therefore,
the Court places the purpose, effects and importance of the
infringing legislation on one side of the scales
and the nature and
effect of the infringement caused by the legislation on the other.
The more substantial the inroad into fundamental
rights, the more
persuasive the grounds of justification must be.’
[23]
[54]
The limitations imposed by s 65 (1) (a) on the exercise of a right to
strike arise in circumstances where a trade union, on
behalf of its
members, contracts out of the right to strike by entering into a
collective agreement that prohibits a strike in
respect of the issue
in dispute. Similarly, s 65 (3) (a) (i) has its roots in contracting
out, in the sense that it prohibits strikes
in circumstances where a
binding collective agreement regulates the issue in dispute. The
justification for the right to strike
in these circumstances is
obvious and patently justifiable.
[55]
However, the present matter primarily concerns a collective agreement
extended in terms of s 23 (1) (d) to non-members of the
party unions;
therefore, this justification does not necessarily apply. Instead,
the justification contended for by the respondents
is one which lies
in the legislative policy choice of majoritarianism, and they submit
to be the consequent benefit of orderly
and stable collective
bargaining.
[56]
The principle of majoritarianism serves to underpin a number of other
provisions of the LRA, some of which have been the subject
of
constitutional challenge.
[24]
The purpose of the limitation is rooted in a policy choice made
by the legislature to adopt a specific model of collective
bargaining
at the level of the workplace, a choice that is consistent with a
scheme of the LRA as a whole.
[57]
The promotion of orderly collective bargaining is one of the
explicitly recognised purposes of the LRA. Once a collective
agreement is reached it is crucial that these follows – this is
the
quid pro quo
to be employer for its consent to a
collective agreement conferring improved benefits on employees.
Section 23 (1) (d), by providing
that a collective agreement may be
extended to employees who are not members of the union parties to the
agreement where those
parties have as the members the majority of
employees employed by the employer in the workplace, both serves to
apply the principle
of majoritarianism in the sense that the will of
the majority should prevail, but also to protect the interests of the
minority
by imposing constraints on the extent to which a collective
agreement might be extended. Here, it is worth noting that the
definition
of ‘workplace’ clearly extends beyond any
agreed bargaining unit - all employees in the workplace must be
brought into
account, including those who are engaged outside the
defined unit in respect of which bargaining takes place.
[58]
The legitimacy of the policy choice made by the lawgiver has been
expressly approved by the Labour Appeal Court in
Kem-Lin Fashions
CC v Brunton & another
where the court said the following:
‘
The legislature
has also made certain policy choices in the Act of which are relevant
to this matter. One policy choice is that
the will of the majority
should prevail over that of the minority. This is good for orderly
collective bargaining as well as for
the democratisation of the
workplace and sectors. A situation where the minority dictates to the
majority is, quite obviously,
untenable. But also a proliferation of
trade unions in one workplace or in a sector should be discouraged.’
[25]
[59]
The courts have confirmed that in a justification enquiry, foreign
and international law, embodying the law and other open
and
democratic societies, should inform that enquiry. The justifiability
of the impugned provisions is apparent from the views
of the
supervisory bodies responsible for monitoring compliance with
international labour standards.
[60]
In
SA
National Defence Union v Minister of Defence & another
(1999) 20
ILJ
2265
(CC) the Constitutional Court specifically affirmed the value of
Conventions and Recommendations adopted by the International
Labour
Organization as an important resource for the interpretation of s 23
of the Constitution. In that matter, the court referred
specifically
to the supervisory bodies established by the ILO’s constitution
and emphasised the importance of the body of
decisions by them. These
bodies have developed a jurisprudence in the course of their
respective obligations to monitor compliance
with ratified
conventions and to conduct general surveys on national law and
practice in respect of particular conventions, and
to receive and
consider complaints regarding alleged breaches of rights of freedom
of association. The jurisprudence developed
by the ILO’s
Committee of Experts on the Application of Conventions and
Recommendations (Committee of Experts) and the Freedom
of Association
Committee of the Governing Body (CFA) is to be found, amongst other
sources, in the General Surveys conducted by
the Committee of Experts
and the CFA’s Digest
[26]
of its decisions.
[61]
Both bodies have interpreted Conventions 87 and 98 so as to include a
right to strike. This is not been uncontroversial but
for present
purposes it is significant in that both the Committee of Experts and
the CFA accept as a starting point that the right
to strike is not
absolute and that it may be restricted or, in exceptional
circumstances, even prohibited. Paragraph 142 of the
General Survey
on the fundamental Conventions concerning rights at work in the light
of the ILO Declaration on Social Justice for
a Fair Globalisation
tabled at the 2012 International Labour Conference reads as follows:
‘
Restrictions on
strikes during the term of a collective agreement
142.
The legislation in certain countries does not establish any
restrictions on the time when a strike
may be initiated, stipulating
only that the advance notice established by the law or by collective
agreement must be observed.
In other systems, collective agreements
are seen as a social peace treaty of fixed duration during which
strikes and lockouts are
prohibited. The Committee considers that
both these options are compatible with the Convention. In both types
of systems, however,
worker organizations should not be prevented
from striking against the social and economic policy of the
Government, in particular
where the protest is not only against that
policy but also against its effects on some provisions of collective
agreements. If
legislation prohibits strikes during the term of
collective agreements, this restriction must be compensated by the
right to have
recourse to impartial and rapid arbitration machinery
for individual or collective grievances concerning the application an
interpretation
of collective agreements.’
[62]
It is self-evident that s 65 (1) (a) of the LRA complies with each
element identified by the Committee of Experts. A strike
is only
prohibited during the currency of a collective agreement if it
contains a peace clause; protest action is not prohibited
during the
currency of a collective agreement (see s 77); and collective
agreements are required by s 24 to provide for the conciliation
and
arbitration of disputes about its application and interpretation.
[63]
Article 4 of Convention 98 requires member states to take measures
appropriate to national conditions ’
to encourage and promote
the full development and utilisation of machinery for voluntary
negotiation between employers or employer
organisation and workers
organisations
.’ The Committee of Experts has emphasised
that the two essential elements to this obligation. The first is
action by public
authorities to promote collective bargaining; the
second is the voluntary nature of collective bargaining, which
implies the autonomy
of the bargaining parties.
[64]
With regard particularly to the extension of collective agreements,
the Collective Agreements Recommendation, 1951 (No 91)
provides in
Article 4 of that ‘
the stipulations of a collective
agreement should apply to all workers concerned employed in the
undertakings covered by the agreement
unless the agreement
specifically provides to the contrary.
In a gloss on
Recommendation 91, the Committee of Experts states at paragraph 245
of the General Survey that ‘
extension of collective
agreements is not contrary to the principle of voluntary collective
bargaining and is not in violation of
convention 98. The Committee of
Experts that such measures envisaged in several countries
.
[65]
Similarly, the CFA has noted at paragraph 1052 of the Digest:
‘
When the extension
of the agreement applies to non-member workers of enterprises covered
by the collective agreement, the situation
in principle does not
contradict the principles of freedom of association, insofar as under
law it is the most representative organisation
that negotiates on
behalf of all workers, and the enterprises are not composed of
several establishments (a situation in which
the decision respecting
extension should be left the parties).
[66]
Consistent with these provisions, many other jurisdictions,
especially those in continental Europe, provide for the extension
of
multi-employer agreements to all enterprises in a particular industry
or geographic area, either through law or other administrative
means.
[27]
Although these
systems typically involve the extension of sectoral level agreements,
the principle of the extension of collective
agreements to
non-parties and their binding effect is one that is recognised and
applied. International labour standards and practice
therefore
recognise and permit systems of collective bargaining with exclusive
rights for the most representative trade union and
those where it is
possible for a number of collective agreements to be concluded by
number of trade unions within a company. They
also recognise the
legitimacy of the extension of collective agreements concluded
between an employer and a majority union to non-parties.
[67]
The importance and functionality of the extension of collective
agreements to bind non-parties was recognised under the dispensation
that applied under the 1956 LRA. In 1989, Clive Thompson wrote an
article in which he was critical of a number of judgments by
the
industrial court in which the court appeared to recognise the right
of individual employees to negotiate with their employer
regardless
of any agreement concluded between the employer and a majority union.
Thompson’s comment
[28]
holds true in the current legislative dispensation:
‘
And if the
non-unionised employees (or perhaps even the disgruntled members?)
may assert that right, they must be at liberty also
to reject any
employer attempt to make it a condition of employment that they
accepted the wage deals negotiated by representative
trade unions.
And so the concept of the binding, uniform peace obligation is
forfeited as well.
There can of course be
little incentive for unemployed to enter into the collective
bargaining process within such a dispensation.
The employer will
seldom be able to finalise a wage package, serial negotiations
characterised by opportunism will be the order
of the day. The
formation of stable relationships will seem unlikely.
[68]
Cheadle points out in relation to the limitations imposed by s 64 (1)
(a) and the limitation of the right to strike that it
presents:
‘
Applying the
constitutional jig of section 36 (1) to this limitation its purpose
is central to the collective bargaining process
– a peace
clause is the employer’s side of the bargain. This clause is
the consideration for higher wages, lower hours,
job security or
whatever else forms the subject matter of the agreement.
[29]
[69]
Functional collective bargaining therefore requires that a peace
obligation conceded in a collective agreement should be enforceable.
Functional collective bargaining further requires that, when such a
peace obligation is agreed to by unions representing a majority
of
affected employees, the obligation should be capable of being
extended to the minority of employees not belonging to any of
the
party unions. It follows from the above that the extension of
collective agreements to all workers is not only compatible with
the
principles of freedom of association, it is recommended. This negates
the core of AMCU’s complaint. At the heart of the
present
dispute is AMCU’s objection to the fact that its members are
bound without their consent to a collective agreement
concluded by
unions that enjoy the support of the majority of employees in the
relevant workplaces. The majoritarian principle
that underlie s 23
(1) (d) promotes orderly collective bargaining, a legitimate purpose
of the LRA and serves the legislative purpose
of advancing labour
peace and the democratisation of the workplace and the creation of a
framework within which parties can bargain
collectively to determine
wages and other terms and conditions of employment. If an employer
and unions party to a collective agreement
were denied the right to
the extent their agreement to non-party employees, collective
bargaining would be characterised by opportunism
and the attendant
threat to the formation of stable relationships. To the extent that
this involves some limitation of the right
to strike (or any of the
other constitutional rights on which AMCU relies), this is entirely
justifiable.
[70]
The limitations of the rights about which AMCU complains serves
legitimate government purposes – principally, to promote
orderly and effective collective bargaining at workplace level. The
limitation that flows from s 23 (1) (d) read with s 65 (1)
(a) is
circumscribed in that strikes are prohibited only other specific
issues in respect of which a collective agreement prohibits
them, and
applies only for the duration of that agreement. In respect of
section 23 (1) (d) specifically, the limitation is narrowly
tailored
to apply only to those workplaces where there is a more trade unions
that represent the majority of employees and then
only when the
parties agree that the agreement should be extended to all employees.
[71]
The limitation arising from s 21 (1) (d) read with s 65 (1) (a) flows
directly from its purpose. The very purpose of s 23 is
to bind
non-parties in the workplace in respect of collective agreements
concluded by majority trade unions. Binding non-parties
is not an
inadvertent effect of s 21 (1) (d) – on the contrary, that is
its central purpose. Similarly, the purpose of s
65 (1) is
inter
alia
to prohibit strikes and lockouts over issues in respect of
which a collective agreement prohibits industrial action. There are
no
less restrictive means of achieving the applicable purposes. If
the parties were precluded from extending collective agreements
in
terms of section 23 (1) (d), the specific purpose of the provision
could not be achieved. What would remain is the ordinary
common law
principle that contracting parties are bound by their own agreements.
This would, as I have indicated, fundamentally
undermine the broader
purpose of the provision, which is to ensure functional, orderly and
stable collective bargaining.
[72]
In so far as AMCU submits that the less restrictive means of adopting
the requirement of administrative approval for any extension
of a
collective agreement in terms of s 23 (1) (d) is concerned, this does
not constitute a ‘less restrictive means’
to achieve the
stated legislative purpose. First, it is not a less restrictive means
at all, since the end result would be the
same. In other words,
incorporating the additional procedural step of securing
administrative approval would make no difference
to AMCU’s
complaints about the impugned provisions. Further, and more
fundamentally, the insertion of a requirement that
administrative
approval be obtained before collective agreement can be extended
would constitute an interference with the autonomy
of the bargaining
parties. Further, it is not clear that administrative approval would
constitute an appropriate alternative in
practice. The extension of
collective agreements in the circumstances contemplated by s 23 (1)
(d) can function only if it applies
in all cases. This achieves the
necessary certainty to enable collective bargaining to take place. In
other words, the legislative
purpose of orderly collective bargaining
would be defeated if there was even a prospect that non-parties would
not be bound by
the agreement.
[73]
In conclusion, in the present instance, the limitation on the right
to strike by AMCU’s members extends only in respect
of those
issues regulated by the wage agreement and only for so long as the
agreement remains binding. This limitation is consistent
with the
overall legislative scheme applicable to collective bargaining and
the LRA, which in turn, is supported by foreign and
international
law. The limitation of the constitutional rights concerned is
proportional and meets the test prescribed by s 36
of the
Constitution. It follows from my finding that s 23 (1) (d) read with
the other relevant sections of the LRA does not violate
the principle
of legality and that it constitutes a reasonable and justifiable
limitation of the right to strike and other associated
rights, that
the counter-application stands to be dismissed.
[74]
In the main application, and to the extent that AMCU contends that s
23 (1) (d) must necessarily be interpreted to mean that
each of the
employers’ mines constitute a workplace, it follows that even
if there were a reasonably plausible interpretation
to this effect,
given the justification for the limitation of the right to strike
contained in that section, it is not an interpretation
that should be
upheld.
Costs
[75]
Finally, in relation to costs, there is no reason why, in the main
application, costs should not follow the result. I did not
understand
any of the parties to that application to contend any differently. In
regard to the counter application, there was consensus
that the
cross-application constituted an attempt to vindicate constitutional
rights that was neither frivolous nor vexatious and
that the
respondents’ opposition to that application was similarly
motivated. For that reason, I intend to make no order
as to costs in
respect of the counter-application.
I
make the following order:
1. The
rule
nisi
issued on 30 January 2014 is confirmed, with costs,
such costs to include the engagement of two counsel.
2. The
counter-application is dismissed, with no order as to costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
In
the main application
For
the Applicant: Adv. A Myburgh SC, with him Adv. G Fourie and Adv. T
Ngcukaitobi instructed by ENS
For
the First Respondent: Adv. P Kennedy SC, with him Adv. F Boda and
Adv. U September, instructed by Larry Dave Inc. Attorneys
In
the counter-application
For
the applicant: Adv. P Kennedy SC, with him Adv. F Boda and Adv. U
September instructed by Larry Dave Inc., Attorneys
For
the First Respondent: Adv. A Myburgh SC, with him Adv. G Fourie and
Adv. T Ngcukaitobi instructed by ENS
For
the Second Respondent: Adv. A Freund SC, with him Adv. J Brickhill
instructed by Cheadle Thompson & Haysom
For
the Third Respondent: Adv. I Posthumus instructed by Serfontein
Viljoen and Swart
For
the Fifth Respondent: Adv. TJB Bokaba SC, with him Adv. B Lecoge and
Adv. B Morris instructed by The State Attorney Pretoria
[1]
The judgment in which the interim order was granted is reported at
(2014) 35
ILJ
1243 (LC).
[2]
UASA filed an affidavit ‘to clarify issues pertaining to the
fourth respondent’ but did not otherwise participate
in the
proceedings.
[3]
As
at the date on which the wage agreement was concluded, AMCU
represented 16% of Harmony’s workers, 29.4% of AngloGold
Ashanti’s employees and 29.27% of Sibanye’s employees.
[4]
At
paragraph 42 of the judgment.
[5]
See
Setlogelo
v Setlogelo
1914
AD 221
at 227;
NUMSA
& others v Comark Holdings (Pty) Ltd
(1997) 18
ILJ
516 (LC).
[6]
The full title of the charter is the ‘Broad-based
socio-economic empowerment charter for the South African mining and
minerals industry.’ It is published in terms of s 100 (2) (a)
of the MPRDA.
[7]
Social and labour plans must be submitted in term of regulation 42
of the regulations published in terms of the MPRDA.
[8]
See also
Nature’s
Choice Products (Pty) Ltd v Food and Allied Workers Union &
others
(unreported,
Labour Appeal Court, JA 12/12, 5 February 2014) at paragraph 22.
[9]
At paragraph 43 of the judgment.
[10]
At paragraph 13 of the judgment.
[11]
Canca v
Mount Frere Municipality
1984 (2) SA 830 (TkSC).
[12]
Brassey
Commentary
on the Labour Relations Act
at
A9-35 to A9-36).
[13]
Thompson in Cheadle, et al
Current
Labour Law 1997
at p 3.
[14]
Prayer 3 in the notice of motion contemplates a declaratory order to
the effect that the interpretation placed by Cele J on s
23 (1) (d)
was unconstitutional. Of course, only a ‘law’ or
conduct’ can be declared unconstitutional –
see s 172
(1) (a) of the Constitution. To the extent that AMCU’s real
complaint was its disagreement with an interpretation
of the LRA by
this court, that disagreement cannot be elevated to one of
constitutional principle.
[15]
[2005] ZACC 15
;
2006 (1) SA 505
(CC) at paragraph 43.
[16]
2013 (1) SA 83 (CC).
[17]
At paragraphs 113 and 114, footnotes omitted.
[18]
In any event, notwithstanding AMCU but having made out a case for
the striking down of s 65 (1) (a) and the definition of ‘workplace’
as unconstitutional, it would amount to an impermissible collateral
attack for it to do so simply on the basis of its ‘read
with’
contention. See
[19]
South
African Transport and Allied Workers Union v Moloto
[2012] 12 BLLR 1193 (CC).
[20]
(1996) 17
ILJ
821
(CC) at paragraph 66
[21]
[2002] ZACC 30
;
[2003] 2 BLLR 103
(CC) at paragraph 13.
[22]
At paragraph 37.
[23]
[1995] ZACC 11
;
1996 (1) SA 388
(CC), at paragraph 18. See also
S
v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at paragraph 104 where the court stated ‘…
there
is no absolute standard which can be laid down for determining
reasonableness and necessity. Principles can be established,
but the
application of those principles to particular circumstances can only
be done on a case-by-case basis. This is inherent
in the requirement
of proportionality, which calls for the balancing of different
interests. In the balancing process, the relevant
considerations
will include the nature of the right to that is limited, and its
importance to an open and democratic society
based on freedom and
equality; the purpose for which the right is limited and the
importance of that purpose to such a society;
the extent of the
limitation, its efficacy, and particularly where the limitation as
to be necessary, whether the desired ends
could reasonably have been
achieved through other means less damaging to the right in
question.’
[24]
Fourie judgment
[25]
[2001] 1 BLLR 25
(LAC). at paragraph 19
[26]
References are to the 5
th
(revised) edition of the Digest.
[27]
See S Hayter ed.,
The
role of collective bargaining in the global economy
,
International Labour Office, Geneva, (2011) at 148.
[28]
Clive Thompson ‘
A
Bargaining hydra emerges from the unfair labour practice swamp
(1989)
10
ILJ
808, at 811. See also Brenda Grant ‘
In
defence of Majoritariansim: Part 2 – Majoritarianism and
Freedom of Association
’
(1993) 14
ILJ
1145.
[29]
Cheadle in Cheadle
et
al
South
African Constitutional Law: The Bill of Rights (
2ed)
at 18-35 to 18-38