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[2018] ZALCCT 34
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Municipal and Allied Workers Union of South Africa v Central Karoo District Municipality and Others (C 671/18) [2018] ZALCCT 34; [2019] 2 BLLR 159 (LC); (2019) 40 ILJ 386 (LC) (6 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case No: C 671/18
In the matter between:
MUNICIPAL AND ALLIED TRADE WORKERS
UNION
OF SOUTH
AFRICA
Applicant
and
CENTRAL KAROO DISTRICT
MUNICIPALITY
First Respondent
PRINCE ALBERT
MUNICIPALITY
Second
Respondent
KANNALAND
MUNICIPALITY
Third Respondent
CAPE AGULHAS MUNICIPALITY
Fourth Respondent
SALDANHA
MUNICIPALITY
Fifth Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATION
Sixth Respondent
INDEPENDENT MUNICIPAL AND ALLIED
TRADE
UNION
Seventh
Respondent
SOUTH AFRICAN MUNICIPAL WORKERS
UNION
Eighth Respondent
Heard: 19 October 2018
Delivered: 06 November 2018
JUDGMENT
TLHOTLHALEMAJE, J
Introduction and
background:
[1] Central to this
application is the controversy surrounding whether members of a
minority union that enjoys certain organisational
rights at a
workplace should continue paying an agency fee in accordance with a
collective agreement entered into between the employer
and majority
unions, over and above their normal subscription fees payable to
their own trade union.
[2] The application
initially framed in two parts came before Whitcher J on 28 August
2018 on an urgent basis. In Part A (which
has since been abandoned),
the applicant (MATUSA) sought interim relief, pending the
determination in Part B, to interdict the
1
st
to 5
th
respondents from enforcing a double deduction on the salary of its
members in circumstances where it had obtained organisational
rights
in terms of section 13
[1]
of the read with section 21 and 25
[2]
of the Labour Relations Act (LRA)
[3]
.
MATUSA has also since abandoned all constitutional challenges
raised in its application.
[3] The proceedings
were postponed on 28 August 2018 for the determination of
only prayers 6 and 7 of Part B, with an
order that MATUSA should pay
to the 7
th
respondent, wasted costs of the day. In prayers
6 and 7 of Part B in the Notice of Motion, MATUSA seeks;
“…
6.
An order declaring that the first to fifth respondents are not
entitled to impose a double deduction (
i.e.
a union
subscription fee as well as an agency shop fee) on the salary of an
employee where that employee is a member of the applicant
and the
applicant has obtained the organisational rights in terms of section
13 of the LRA read together with section 21(8C) of
the LRA.
7.
Ordering the first to fifth respondent to reimburse the members of
the applicant with the double deductions to which the first
to fifth
respondents were not entitled.”
[4] Only the seventh
respondent, the Independent Municipal Workers Union (IMATU), and the
eighth respondent, the South African Municipal
Workers Union (SAMWU)
opposed the application. The urgency of the matter and the
jurisdiction of the court is not disputed.
[5] The background
facts to this dispute are fairly common cause. In summary, SAMWU,
IMATU and SALGA are the founding parties to
the South African Local
Government Bargaining Council (SALGBC). The scope of registration is
the local government undertaking in
the whole Republic, covering all
257 local municipalities with a combined workforce of 250 000
employees. SAMWU has the largest
membership of 140 000 or 56%,
and IMATU has some 90 000 or 36%.
The
rest of the employees are either non-union members, or are members of
minority unions
such as MATUSA and DEMAWUSA, who have or are
attempting to gain entry into the sector.
[6] On
25 August 2015, SAMWU, IMATU and SALGA adopted the Main
Collective Agreement which granted bargaining, organisational
and
other rights to the unions on condition that a specific membership
threshold was met
[4]
.
The agreement remains in force until June 2020. IMATU and SAMWU
by virtue of their membership as indicated above satisfy
the
threshold, which is that a union must have at least 15% of the total
number of employees in the scope of the Council.
[7] In
September 2015, SALGA, IMATU and SAMWU concluded an agency shop
agreement in accordance with the provisions of section
25 of the LRA.
The agreement sought to ensure that all employees within the scope of
the Council contributed to the costs of the
benefits of collective
bargaining between those three parties. In line with the objectives
of the agency shop agreement, the parties
16 April 2018 concluded an
agency fee agreement, which authorised the levying of a fee
equivalent to 1% of the employees’
salaries
but
not exceeding R75 (Seventy-Five Rand)
from employees’
who are not members of either IMATU and SAMWU. In a nutshell, there
are about 20 000 employees who are
paying the agency fee
monthly. The fee upon being paid to the Council is then distributed
to IMATU and SATAWU proportionally in
accordance with their
membership figures.
[8] The consequences
of these agreements are that members of trade unions that did not
meet the minimum threshold in terms of clause
11.1 of the main
collective would be liable for both the agency fee and their trade
union subscription. However, members of IMATU
and SAMWU as parties to
the main collective agreement are only liable for their
subscriptions.
[9] In its opposing
papers, IMATU indicates that in the 2016/2017 financial year, it
received about R5.8m in agency fee income,
which was used to fund
authorised expenses, and which accounted for 4.4% of its total
income, and defrayed 5.3% of its total expenditure.
It thus contends
that without the agency fee income, and in order to make up for the
loss of revenue, it would have to increase
its monthly membership fee
by 5.3%. This would imply that its members would then be sponsoring
MATUSA members insofar as they benefitted
from the collective
bargaining effort at the Council, without being members of
representative unions, and thus making it unfair.
[10] In 2014, the
provisions of section 21(8A) - (8D) of the LRA
[5]
were promulgated to govern the process under which certain
organisational rights may be granted to trade unions that do not meet
the necessary threshold. MATUSA was granted organisational rights in
accordance with sections 12, 13 and 15 of the LRA at the 1
st
- 5
th
respondents’ municipalities and other various
municipalities throughout the Republic. Some of these municipalities
do not
apply a system of double deductions, and MATUSA has referred a
number of claims in terms of section 21(8C) of the LRA and in
instances
where a municipality has continued to levy both the agency
fee and the membership fee.
The submissions:
[11] The submissions
made on behalf of MATUSA are summarised as follows;
11.1 From the
intention of the legislature as contained in the objectives in the
explanatory memorandum
[6]
,
the motivation behind section 21 (8C) of the LRA was to assist
minority unions to obtain rights, which they would not ordinarily
have obtained, but for the Collective Agency Shop Agreement.
11.2 Even though
SALGA, IMATU and SAMWU had concluded a binding recognition agreement
which excluded MATUSA from collective bargaining,
the provisions of
section 21(8C) of the LRA were enacted as a remedy for trade unions
which do not satisfy the minimum threshold
to approach a competent
fora
in order to be granted the rights contemplated in terms
of section 12, 13 and 15 of the LRA.
11.3 The proper
interpretation of the provisions of section 21(8C) of the LRA does
not contemplate the burdening of the employees
with a double
deduction. The clear intention of the provisions was to provide a
trade union with sufficient representativeness,
the means to bypass
the restrictive threshold requirements of a recognition agreement in
pursuit of organisational rights
e.g.
the right to deduction
of membership in terms of section 13 of the LRA.
11.4 The provisions
of the LRA in general did not foresee double payments, and sections
25(1) and 13 of the LRA envisaged one fee
payable. The agency fee
agreement was therefore in conflict with the intention of the
provisions of section 21(8C) of the LRA,
or these provisions
specifically intend to give minority unions the ability to circumvent
the restrictive consequences of an agency
shop agreement.
11.5 Section 25 of
the LRA envisaged a situation where employees were not members of a
trade union at all, and thus ought to be
considered against the
backdrop of sections 21 (8C) and 13 of the LRA.
11.6 The purpose of
the provisions of section 25 of the LRA is to ensure that
non-unionised workers do not unjustly benefit from
the bargaining
endeavours of those who make contribution to the bargaining process
through their trade union subscription. However,
in this case,
members of MATUSA were members of a registered trade union, and thus
did not fall within the definition of ‘free
riders’,
which an agency shop agreement was intended for. These provisions
therefore ought not to be interpreted in a manner
that would
interfere with the employees’ right to choose a trade union,
which is a fundamental principle of freedom of association.
11.7 MATUSA
acknowledged the right of parties to engage in collective bargaining
under the provisions of section 23 (5) of the Constitution,
but
however contended that minority unions have equally achieved
collective bargaining rights which ought to be recognised.
11.8 In essence, to
the extent that the agency shop agreement permitted double deductions
from MATUSA members, this was unlawful
and invalid.
[12] In opposing the
application, the submissions made on behalf of IMATU, which SAMWU
effectively aligned itself with were that;
12.1 Even if MATUSA
members were subjected to a double deduction, that did not detract
from the fact that they remained “free
riders”, as their
union did not satisfy the prerequisite minimum threshold to
participate in the collective bargaining that
they benefitted from.
Thus, the election to become a MATUSA member was irrelevant to a
continued obligation to pay the agency fee.
12.2 The agency fee
and the union subscription are not for the same expense or purpose
since the subscription does not yield any
returns at least from the
collective bargaining. Thus membership of MATUSA did not convert its
members from being free riders into
paying riders.
12.3 The obligation
to pay the agency fee withstood the enactment of the provisions of
section 21(8C) of the LRA, which merely allowed
the CCMA to override
the provisions related to threshold, with no serious implications for
the agency shop. In this regard, MATUSA
had not explained why the
interpretation/application pf sections 25, 21(8C) and 23 of the LRA
leads to double deductions being
unlawful.
12.4 Section 25 of
the LRA envisaged that members of minority unions who pay union dues
were liable to pay an agency shop fee, and
the award of section 13
rights did not alter the position. In the end, MATUSA had failed to
establish a clear right to the relief
it seeks.
Evaluation:
[13] Since the
constitutionality of all the relevant provisions to be considered in
this matter is not challenged, the starting
point nonetheless is that
section 23 of the Constitution guarantees the right to form and join
a trade union, and the right of
every trade union to organise and
engage in collective bargaining
[7]
.
Those rights find expression in Chapters II (Freedom of Association
and General Protections), and Chapter III (Collective Bargaining)
of
the LRA.
[14] In accordance
with the provisions of section 23(1)(d) of the LRA, parties to a
collective agreement such as in this case, are
entitled to
extend that agreement to, and bind, employees who are not members of
a trade union that is party to that agreement.
This is inclusive of
employees who are members of minority unions such as MATUSA.
Obviously on the face of it, the provisions of
section 23(1)(d) of
the LRA impacts on or impose limitations on various other individual
or collective rights as guaranteed either
in the Constitution or the
LRA itself, such as the right of freedom of association; collective
bargaining or the right of unions
to embark on protected strike
actions.
[15] In
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[8]
,
it was held that
section 23(1)(d) of the LRA furthers the
legitimate governmental purpose of promoting effective collective
bargaining by way of
a scheme premised on majoritarianism, and that
as the provision was a constitutionally permissible limitation on
certain entrenched
rights, it is by corollary rational
[9]
.
In further explaining the general scheme of majoritarianism as
permeating through the LRA, the Court had held that;
“
Majoritarianism
is both a premise of and recurrent theme throughout the LRA. Our case
law has long recognised this, from at least
the judgment in
Kem-Lin
,
but probably earlier. In
Kem-Lin
,
Zondo JP said:
“
The
legislature has also made certain policy choices in the Act which are
relevant to this matter. One policy choice is that the
will of the
majority should prevail over that of the minority. This is good for
orderly collective bargaining as well as for the
democratisation of
the workplace and sectors. A situation where the minority dictates to
the majority is, quite obviously, untenable.
But also a proliferation
of trade unions in one workplace or in a sector should be
discouraged. There are various provisions in
the Act which support
the legislative policy choice of majoritarianism.”
Zondo
JP instanced various LRA provisions that illustrate the legislative
policy choice. Two of the most obtrusive suffice. It is
majoritarianism that underlies the statute’s countenancing of
both agency shop agreements (deductions for majority union
fees from
all employees, both members and non-members), and closed shop
agreements (collective agreement may oblige all employees
to be
members of the majority trade union). This is not to say that these
provisions are invulnerable to constitutional attack.
It is
only to point to them as piquantly instancing the scheme of the
statute as a whole.”
[10]
(Citations omitted)
[16] Cameron J in
the judgment above went further to define the purpose of section
23(1)(d) as being to give enhanced power
within a workplace, as
defined, to a majority union, and it did so for powerful
reasons that are functional to enhancing
employees’ bargaining
power through a single representative bargaining agent
[11]
.
The Court went further and emphasised that the LRA, though
premised on majoritarianism, did not make it an implement
of
oppression, nor does it entirely suppress minority unions, as
its provisions gave ample scope for minority unions
to
organise within the workforce, and to canvass support to challenge
the hegemony of established unions
[12]
.
[17] Obviously
enjoying majority representation comes with a number of perks for a
union, viz, the right to appoint representatives;
to disclosure of
information; the right to enter into a collective agreement and set
thresholds of representivity for the granting
of access, stop-order
facilities; the right to conclude agency shop and closed shop
agreements; to apply for the establishment
of a workplace forum; and
the right to conclude collective agreements which will bind employees
who are not members of the union
or unions party to the
agreement
[13]
.
[18] Central to
MATUSA’s case is that on a proper interpretation of the
provisions of section 21(8C) of the LRA, the intention
was to provide
a trade union with sufficient representativeness, the means to bypass
the restrictive threshold requirements of
a recognition agreement in
pursuit of organisational rights such deduction of membership dues in
terms of section 13 of the LRA,
and the restrictive consequences of
an agency shop agreement.
[19] MATUSA is
correct in pointing out that the purpose of section 21(8C) of the LRA
is to assist minority unions to obtain certain
rights which it would
not ordinarily have obtained but for the Collective agreements
entered into with majority unions. But this
is where the line in the
sand is drawn between that contention and the overall purpose of
those provisions. These provisions merely
allows a CCMA Commissioner
to grant the rights referred to in sections 12, 13 or 15 of the LRA
to a minority union that does not
meet thresholds, and nothing more.
Effectively, once those rights are granted by the CCMA as a point of
entry into the workplace
or sector, in the words of Cameron J in
AMCU
, they
give ample scope for minority
unions to organise within the workforce, and to canvass support to
challenge the hegemony of established
unions.
[20] It would
however be incorrect to regard the provisions of section 21(8C) of
the LRA on their own, as panacea to minority unions’
attempts
at upsetting the apple cart that is the hegemony of established
unions at municipalities. Inasmuch as these provisions
permit the
CCMA to grant certain organisational rights to minority unions where
thresholds have been set in accordance with collective
agreements,
the legislature could not have intended that their overall objective,
and on a general level, be to circumvent the
consequences of any
other collective agreements already entered into by majority unions
with the employer, including Agency shop
agreements. To hold
otherwise would be to countenance the demise of majoritarianism upon
which the scheme of the LRA is predicated,
and in particular, the
whole import of the provisions of section 23 of the LRA. To put it
bluntly, the provisions of section 21(8C)
of the LRA are not a free
pass for minority unions to gain other organisational rights (outside
of the rights contemplated in section
21(8A), which are ordinarily
gained through hard collective bargaining processes.
[21]
To
the extent that the provisions of section 23 (1) (d) of the LRA are
not unconstitutional, which by implication extends
to the
Agency Shop Agreements, and further to the extent that there is no
constitutional challenge to the provisions of section
25 of the LRA,
the following observations as made in
National
Manufactured Fibres Association & another v Commissioner &
others Bikwana
[14]
remains pertinent and ought to be
re-emphasized;
21.1
Established
unions have taken time and effort to reach a stage where they are in
a position to can acquire collective bargaining
rights as well as the
status of representivity.
21.2
It
cannot be doubted that representative unions such as IMATU and SAMWU
generally invest time, money and other resources when negotiating
better terms and conditions of employment on behalf of their members
with the employer.
21.3
It
would thus be unfair to simply pass the benefits of the deals secured
through such efforts to other employees who are not members
of those
trade unions, without them being required to contribute towards the
costs which the representative trade union incurs
in connection with
collective bargaining work. If a contrary view was to be held, the
implications thereof are that minority unions
such as MATUSA and
their own members, would be beneficiaries of new deals struck by
IMATU and SAMWU, without having put an effort
into the collective
bargaining process. To the extent that such unions are unable
to make any meaningful contribution to
the collective bargaining
effort as a result of the thresholds set, these are the consequences
of the provisions of section 18
of the LRA, which are merely an
expression of those of section 23(6) of the Constitution of the
Republic.
21.4
In
a nutshell, ‘free riders’ and their unions, cannot simply
be allowed to be subsidized by majority/representative
unions and
their members. Agency shop agreements merely seek to make free riders
pay for the fruits of the labour of the representative
trade unions
without compelling them to join those trade unions
[15]
.
21.5
Employees
that are members of non-representative or minority unions such as
MATUSA are not automatically converted into paying riders
simply by
virtue of their payment of subscriptions to MATUSA. They remain free
riders because MATUSA does not contribute to the
fruits of collective
bargaining between the employer and IMATU and SAMWU. As it was
correctly pointed out on behalf of SAMWU, the
agency shop and
subscription levies serve different purposes. Effectively, the double
pay complained of by MATUSA is not for the
same ‘product’
or ‘service’.
21.6
MATUSA’s
insistence in this case that the provisions of section 25(1) of the
LRA are directed only against employees who are
non-union members at
all is without merit. Those provisions are directed against
employees who are not members of the representative
trade union
irrespective of whether or not they are members of any other trade
union
[16]
.
This interpretation by Zondo JP (as he then was) in my view makes
sense in the light of the overall objectives of an agency shop
agreement. It would not, as a general proposition, make sense to
exclude members of a minority union from the provisions of an
agency
shop, when that union is not a party to the collective bargaining
effort. If in this case as alleged by MATUSA, that some
municipalities have exempted its members from paying agency shop
levies as a result of the minimum organizational rights gained
flowing from the provisions of section 21 (8C) of the LRA, that is a
matter between it and those municipalities, which cannot by
any
stretch of imagination be regarded as setting a legal precedent.
[22]
The
application and relief that MATUSA seeks in this case is not
dissimilar to the one considered by Basson J in
UASA
& another v BHP Billiton Energy Coal SA & another
[17]
,
where the learned Judge had referred to
National Manufactured Fibres Association
& another v Commissioner & others Bikwana
with approval. The suggestion that these authorities pre-date the
2014 LRA amendments and are therefore unhelpful is clearly misplaced.
The ratio in those decisions remains valid, particularly
within the context of the nature of this application and the relief
that
MATUSA seeks. In essence, notwithstanding the amendments, and in
particular, the provisions of section 21(8C) of the LRA, the general
substance, purpose and consequences of agency shop agreements on
non-union members or members of minority unions falling outside
the
threshold remains the same. It would be wrong to suggest that the
provisions of section 21(8C) of the LRA change the tone,
colour,
texture or purpose of agency shop agreements.
[23]
It
follows from the above conclusions that in the absence of a
constitutional challenge to the provisions of sections 23 and 25
of
the LRA, there can be no basis for a finding to be made that the
Agency Shop Agreement in question is unlawful or invalid on
account
of MATUSA members having to pay double. In any event, the invalidity
of the closed shop agreement can only be challenged
if
inter
alia
, it was demonstrated that it was
not in compliance with the provisions of section 25 (3) of the LRA or
if it was shown that any
amounts deducted in that regard were not
administered appropriately
[18]
.
In my view, the fact that the consequences of this agreement are that
MATUSA members must pay double can at best be described
as unintended
consequences of the individual member’s exercise of a right of
freedom of association. Accordingly, MATUSA
has not established any
right to the relief that it seeks.
[24] What remains to
be determined is the issue of costs.
It was
submitted on behalf of both IMATU and SAMWU that costs should follow
the results. It is however trite that costs orders in
this court
are awarded upon a consideration of the requirements of law and
fairness
[19]
.
[25] The issues
raised in this case may be contentious, but are not in my view novel.
As already indicated, the provisions of section
21 (8C) of the LRA
which formed the basis of MATUSA’s challenge have little or no
bearing on those of section 25 of the LRA.
MATUSA’s
application, which initially concerned constitutional challenges,
fizzled down to questions of invalidity and unlawfulness,
which
ultimately turned out to be without merit. In my view, in the light
of the established authorities referred to in this judgment,
of which
importance MATUSA had without any basis sought to downplay, it
follows that this application
albeit
raising contentious
issues which had already been determined, was indeed ill-conceived.
In the circumstances, there is no reason
based on either law or
fairness, why MATUSA should not be burdened with the costs of this
application.
Order:
[26] In the
premises, the following order is made;
1. The Applicant’s
application is dismissed.
2. The Applicant is
ordered to pay to the 7
th
and 8
th
Respondents, the costs of this application.
E.
Tlhotlhalemaje
Judge of
the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
A.
Montizinger
Instructed
by:
Hannes
Pretorius Bock & Braynt
For
the 7
th
Respondent:
A
Myburgh SC
Instructed
by:
Francois Du Plessis
Attorneys
For
the 8
th
Respondent:
T
Manda
Instructed
by:
Maenetja Attorneys
[1]
Deduction of trade union subscriptions or
levies
(1)
Any employee who is a member of a representative trade union may
authorise the employer in writing to deduct subscriptions
or levies
payable to that trade union from the employee's wages.
(2)
An employer who receives an authorisation in terms of subsection (1)
must begin making the authorised deduction as soon as
possible and
must remit the amount deducted to the representative trade union by
not later than the 15th day of the month first
following the date
each deduction was made.
(3)
An employee may revoke an authorisation given in terms of subsection
(1) by giving the employer and the representative trade
union one
month's written notice or, if the employee works in the public
service, three months' written notice.
(4)
An employer who receives a notice in terms of subsection (3) must
continue to make the authorised deduction until the notice
period
has expired and then must stop making the deduction.
(5)
With each monthly remittance, the employer must give the
representative trade union-
(a) a
list of the names of every member from whose wages the employer has
made the deductions that are included in the remittance;
(b)
details of the amounts deducted and remitted and the period to which
the deductions relate; and
(c) a
copy of every notice of revocation in terms of subsection (3).
[2]
25. Agency shop agreements
(1)
A representative
trade
union
and an employer or
employers’
organisation
may conclude a
collective
agreement
, to be known as an agency
shop agreement, requiring the employer to deduct an agreed agency
fee from the wages of
employees
identified in the agreement who are not members of the
trade
union
but are eligible for membership
thereof.
[3]
Act 66 of 1995 (as amended)
[4]
ORGANISATIONAL RIGHTS
11.1
THRESHOLD OF REPRESENTATIVENESS
11.1.1
The
parties
to the
Council
establish
,
in
respect of the rights referred to Sections 12, 13 and 15 of the
A
ct,
a
threshold of representativeness
equivalent to the
membership percentage established in clause 4.2.2 of the
Constitution of the Council
11.1.2
This
threshold of representativeness
will be applied equally
to any
Trade Union
seeking any organisational rights referred
in Sections 12, 13 and 15 of the Act.
11.1.3
Any registered
Trade Union
with fewer members than the
threshold of representativeness
set out in clause 11.1.1above
will not qualify for any rights set out in Sections 12, 13 and 15 of
the Act.
[5]
Section 21.
Exercise of rights conferred by
this Part
(8A) Subject to the provisions of subsection (8), a commissioner may
in an arbitration conducted in terms of subsection (7) grant
a
registered trade union that does not have as members the majority of
employees employed by an employer in a workplace—
(a)
the rights referred to in section 14,
despite any provision to the contrary in that section, if—
(i)
the trade union is entitled to all
of the rights referred to in sections 12, 13 and 15 in that
workplace; and
(ii)
no other trade union has been
granted the rights referred to in section 14 in that workplace.
(b)
the rights referred to in section 16,
despite any provision to the contrary in that section, if—
(i)
the trade union is entitled to all
of the rights referred to in sections 12, 13, 14 and 15 in that
workplace; and
(ii)
no other trade union has been
granted the rights referred to in section 16 in that workplace.
(8B) A right granted in terms of subsection (8A) lapses if the trade
union concerned is no longer the most representative trade
union in
the workplace.
(8C) Subject to the provisions of subsection (8), a commissioner may
in an arbitration conducted in terms of subsection (7) grant
the
rights referred to in sections 12, 13 or 15 to a registered trade
union, or two or more registered trade unions acting jointly,
that
does not meet thresholds of representativeness established by a
collective agreement in terms of section 18, if—
(a)
all parties to the collective agreement
have been given an opportunity to participate in the arbitration
proceedings; and
(b)
the trade union, or trade unions acting
jointly, represent a significant interest, or a substantial number
of employees, in the
workplace.
(8D) Subsection (8C) applies to any dispute which is referred to the
Commission after the commencement of the Labour Relations
Amendment
Act, 2014, irrespective of whether the collective agreement
contemplated in subsection (8C) was concluded prior to
such
commencement date.
[6]
Memorandum of Objects Labour Relations Amendment
Bill, 2012, published by the Department of Labour
[7]
The Constitution of the Republic of South Africa,
1996, Act 108
of 1996.
23.
Labour relations
.- (l) 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 an 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).
[8]
(2017) 38 ILJ 831 (CC); 2017 (3) SA 242 (CC); 2017 (6) BCLR 700
(CC); [2017] 7 BLLR 641 (CC)
[9]
At para 76
[10]
At paragraph 43. See also
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[2016] 9 BLLR 872
(LAC) at para 105, where it was held that;
‘Section
23(1)(d) of the LRA is but one instance in the LRA where the
legislature had chosen to apply the principle
of majoritarianism.
There is nothing unconstitutional about the principle itself. It is
a useful and essential principle applied
in all modern democracies,
including the Republic of South Africa. It has been recognised as an
essential and reasonable policy
choice for the achievement of
orderly collective bargaining and for democratisation of the
workplace and the different sectors.’
[11]
At para 44
[12]
At para 55
[13]
Sections 14; 16 ; 18; 23(1)(d)(iii); 25; 26; 80
and 82 of the LRA
[14]
[1999] 10 BLLR 1079 (LC)
[15]
At para 20
[16]
At paras 23 - 26
[17]
(2013) 34 ILJ 1298 (LC)
[18]
See
Greathead v South African Commercial
Catering & Allied Workers Union
(2001)
22 ILJ 595 (SCA);
Solidarity &
Others v Minister of Public Service & Administration &
Another
(2004) 25 ILJ 1764 (LC)
[19]
Zungu v Premier of the Province of KwaZulu-Natal and
Others
(2018) 39 ILJ 523 (CC);
[2018] 4 BLLR 323
(CC);
2018
(6) BCLR 686
(CC) at paras 23 - 26