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[2019] ZALCJHB 89
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Association of Mineworkers and Construction Union v Sibanye Gold Limited t/a Sibanye Stillwater and Others (J 353/19; J 380/19) [2019] ZALCJHB 89; (2019) 40 ILJ 1607 (LC); [2019] 8 BLLR 802 (LC) (20 March 2019)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: J 353/19 and J
380/19
In
the matter between:
ASSOCIATION OF
MINEWORKERS
AND
CONSTRUCTION UNION
Applicant
and
SIBANYE GOLD LIMITED t/a
SIBANYE
STILLWATER
First
Respondent
NATIONAL
UNION OF MINEWORKERS
Second
Respondent
SOLIDARITY
Third Respondent
UASA
THE UNION
Fourth
Respondent
INDIVIDUAL
NON-UNIONISED EMPLOYEES
OF
SIBANYE

Fifth to Further Respondents
Heard:
27 February 2019
Delivered:
20 March 2019
JUDGMENT
PRINSLOO, J
Introduction
[1]
This
is a consolidated urgent application in which the Applicant (AMCU)
attacks the lawfulness of the extension of a wage agreement
to its
members, in terms of section 23(1)(d) of the Labour Relations Act
[1]
(LRA).
[2]
Case no. J353/19 (the first application)
was brought in respect of an extension effected on 13 December 2018
(the first extension)
and case no. J380/19 (the second application)
was brought in respect of an extension effected on 18 February 2019
(the second extension).
[3]
It is evident from the papers before me
that the First Respondent (Sibanye) no longer relies on the first
extension, as it was superseded
by the second extension, which
renders the first application essentially moot. Mr Boda for AMCU took
a cautious approach in seeking
the setting aside of the first and the
second extensions, in the event that the second extension is invalid
and Sibanye seeks to
fall back on the first extension to prevent the
AMCU members from striking. In argument, Mr Myburgh for Sibanye
confirmed that
the proceedings relate only to the second extension as
no reliance will be placed on the first extension.
[4]
It is on this basis that the matter before
me will be decided.
Background
[5]
This matter has taken a long and winding
road and this urgent application is just another brick in the wall of
an on-going battle
between the parties since the commencement of
AMCU’s industrial action on 21 November 2018.
[6]
The
litigation history since the commencement of the strike, has been
dealt with extensively in other judgments
[2]
.
I will provide a brief factual background as it is relevant and
necessary to place this application into context.
[7]
Sibanye recognised NUM, Solidarity, UASA
and AMCU for collective bargaining purposes.
[8]
Negotiations between Sibanye and the
recognised unions in regard to wages and terms and conditions of
employment for the period
1 July 2018 to 30 June 2021
commenced on 11 July 2018 at the Minerals Council South
Africa (the Council).
[9]
In the run up to the negotiations, AMCU
tabled its demands in a letter dated 4 June 2018, which included a
proposal about implementation
as follows: “The implementation
date for the above increase should be the 1
st
of July 2018. In case where wage negotiations take longer than
excepted before conclusion, a back payment to be made irrespective
as
to when agreement has been reached.”
[10]
On 30 August 2018, AMCU referred a mutual
interest dispute to the Commission for Conciliation, Mediation and
Arbitration (CCMA)
and a certificate of non-resolution was issued on
26 September 2018.
[11]
Following protracted negotiations, a wage
agreement was concluded on 14 November 2018 between Sibanye
and the union coalition
comprising NUM, UASA and Solidarity. AMCU was
not party to the collective agreement, and to date an agreement
remains elusive.
It is common cause that when the collective
agreement was concluded, the union coalition did not have majority
representation at
the workplace
[12]
Following a strike notice issued by AMCU on
19 November 2018, industrial action commenced on
21 November 2018.
The strike action is still ongoing and
has now entered its fourth month. AMCU stated that the strike is
ongoing as the demands
that it has made in respect of basic salary /
wages, allowances, benefits and other conditions of service remain
unsatisfied.
[13]
On 13 December 2018, Sibanye,
NUM, UASA and Solidarity concluded the first extension agreement, in
the form of an amendment
to the wage agreement by the addition of a
new clause 16. Clause 16 extended the wage agreement to all employees
employed by Sibanye
‘in the category 4-8 miners, artisans and
official recognition units in the workplace of each representative
employer’.
[14]
On 18 December 2018, Sibanye approached
this Court on an urgent basis under case number J4552/18, for an
order declaring
inter alia,
that
the continuing strike that commenced on 21 November 2018 is
unprotected as contemplated in sections 65(1)(a) and
65(3)(i) of the
LRA with effect from 13 December 2018 and for an order
interdicting and restraining AMCU and its members
from participating
in the said strike. The gist of Sibanye’s case was that NUM,
Solidarity and UASA have between the period
22 November 2018
and 13 December 2018 increased their membership to the
extent that they enjoyed majority representation
for purposes of
extending the wage agreement. As the wage agreement was extended to
AMCU, the strike was to be declared unprotected,
as contemplated in
sections 65(1)(a) and 65(3)(a)(i) of the LRA.
[15]
On 21 December 2018, this Court (per
Tlhotlhalemaje J) dismissed Sibanye’s application to interdict
the strike on the basis
of the extension – finding that Sibanye
had not established that the union coalition had majority
representation as at 13
December 2018. The Court went on to order
that a CCMA verification process be undertaken.
[16]
On 16 January 2018, the verification
process at the CCMA came to a standstill and was postponed, pending
the finalisation of the
application for leave to appeal that was
filed by AMCU.
[17]
On 23 January 2019, Sibanye once again
approached this Court on an urgent basis for an order
inter
alia,
to declare the strike action that
had commenced on 21 November 2018 unprotected in terms of the
provisions of section 65(1)(a),
as read with section 65(3)(a)(i) of
the LRA.
[18]
On 8 February 2019, I dismissed Sibanye’s
second application to interdict the strike on the basis of the
extension by finding
that the issue was
res
iudicata.
[19]
On 14 February 2019, AMCU launched the
urgent application under case number J535/19 in respect of the first
extension agreement.
[20]
On 18 February 2019, Sibanye and the
coalition unions entered into a second section 23(1)(d) extension
through another amendment
to the wage agreement, which replaces and
supersedes the first extension. According to Sibanye, the second
extension came about
in circumstances where the prolonged strike
produced changes in union membership (i.e. floor crossing) to the
extent that the union
coalition now enjoys 52% representivity.
[21]
Different to the first extension, the
second extension expressly provides that the wage agreement binds all
employees employed by
Sibanye ‘in the category 4-8, miners,
artisans and official recognition units in the workplace of each
representative employer’
retrospectively
from 1 July 2018
. This date is in line
with the wage agreement.
[22]
AMCU filed an urgent application on 20
February 2019 under case number J380/19 in respect of the second
extension. The matters were
consolidated and enrolled for hearing on
27 February 2019. As already alluded to, case number J353/19
effectively became moot and
I will only decide the application in
respect of the second extension.
[23]
The parties are
ad
idem
that whether or not, the union
coalition collectively had as their members, the majority of the
employees in the bargaining units
referred to in the wage agreement
of 14 November 2018, is not an issue to be dealt with in this
application. There remains a dispute
as to whether or not the
coalition union had majority status at the time that the extensions
were concluded. If the second extension
is found to be lawful and
valid, a verification exercise is necessary to determine the
representativeness of the union coalition
as at 18 February 2019. In
other words, this application is concerned only with the principles
to which I refer below; whether
the union coalition meets the section
23(1)(d) threshold remains to be determined.
Sibanye’s case
[24]
I will briefly refer to Sibanye’s
case insofar as it is relevant to the issues that I have to decide.
[25]
In answer to AMCU’s applications,
Sibanye explained that a wage agreement was concluded on
14 November 2018 between
the Sibanye and the union
coalition. This agreement was concluded in respect of wages and other
conditions of employment and its
duration is for the period 1 July
2018 – 30 June 2021. The agreement contains a peace clause in
terms of which it was recorded
that the agreement was entered into in
full and final settlement of all demands and proposals made during
the course of the negotiations
that led to the conclusion of the
agreement and that it is in full and final settlement of the issues
of wages, terms and conditions
of employment and benefits for the
period 1 July 2018 – 30 June 2021. The agreement further
recorded that no party to the
said agreement, or other person or
entity bound by it shall, in respect of the period 1 July 2018 to 30
June 20121, seek to vary,
review or negotiate wages and other terms
and conditions of employment or call for, encourage or participate in
any strike in respect
of any demand or proposal to amend wages, other
conditions of employment of benefits. The employer also committed not
to enter
into any collective agreement with any other union which
provides for more favourable terms and conditions of employment than
those
regulated in the said agreement.
[26]
AMCU commenced with strike action on
21 November 2018. From early on, the strike has been marred
with acts of violence
and unlawful conduct and on 21 November 2018,
Sibanye secured an interdict against the acts of violence etcetera.
[27]
The first extension happened on
13 December 2018 and as Sibanye indicated that this
agreement is no longer relied upon,
there is no need to deal with it
in any more detail herein.
[28]
The second extension happened on 18
February 2019 and Sibanye explained what considerations were taken
into account before concluding
the second extension. Those are: the
fact that the verification process at the CCMA, pursuant to the order
of Tlhothlalemaje J,
is stalled in light of the pending appeal and it
is not likely that it will yield an outcome any time soon, and even
if the verification
process yields an outcome confirming that the
union coalition had the majority at the time when the first extension
was effected,
any subsequent application to interdict the continued
strike based on the first extension, would be met with a special plea
of
res iudicata.
[29]
According to Sibanye, there had been a
sustained and substantial improvement of the union coalition’s
representivity levels
to the point where there is now a confirmed
buffer of nearly 600 employees in the majority grouping. This
happened as a result
of non-unionised employees joining the union
coalition during the course of the strike and AMCU members who do not
wish to be part
of the strike, have joined other unions. The point
has been reached where the wage agreement enjoys the majority support
within
the workplace and there is increased opposition against the
continuation of the strike.
[30]
On 18 February 2019, the second extension
was effected by way of an agreement between Sibanye and the union
coalition to amend clause
16 of the wage agreement to read as
follows:” The Minerals Council, acting on behalf of the
companies, and the unions further
agree that this agreement shall, by
virtue of the provisions of
section 23(1)(d)
of the
Labour Relations
Act, 66 of 1995
, and retrospectively from 1 July 2018, bind and be
extended to all employees employed by the companies whether or not
they are
members of the unions, who are employed in the category 4-8
miners and artisans and official recognition units in the workplace

of each representative employer’
[31]
Sibanye’s case is that clause 16,
read together with the peace clause contained in the wage agreement,
is now binding on AMCU
and its members and therefore the strike is
unprotected.
[32]
Sibanye explained that the second extension
happened in circumstances where the strike has been violent and the
death toll currently
stands at seven, 48 homes of non-striking
employees have been petrol bombed, five children were assaulted with
petrol bombs, of
which two are still in ICU with life threatening
burns, 95 persons required hospital treatment for injuries and 26
vehicles have
been damaged or completely burnt out. Notwithstanding
the fact that 147 persons have been arrested for public violence,
arson,
malicious damage to property and related criminal activities,
the violence continued and by far the majority of the victims have

been non-striking employees or members of their families.
[33]
The situation continues to escalate as on
13 February 2019, a bus transporting employees to work at Sibanye,
came under fire at
a stop street in Welkom and two NUM members passed
away. Also on 13 February 2019, AMCU’s Regional Secretary
(Gauteng West
Region) addressed the striking AMCU members and stated
inter alia,
that
“
So now the issue that we are
facing with Comrades, since they have seen that Driefontein is in our
hands, they are now using Kloof.
So what we need to do now Comrades,
we need to put more effort into our fight to see as to how we are
going to assist those Comrades
from Kloof.”
[34]
Sibanye stated that the very next day (14
February 2019) a vehicle transporting employees of an independent
contractor to Sibanye’s
Kloof Mine, came under fire by gunmen
and two persons have been treated for gunshot wounds. It further
contends that it suffers
daily losses and continues to do so, with
the total loss to date approaching R 2 billion.
[35]
On 14 February 2019, Sibanye issued a
section 189(3)
notice to notify employees that it is contemplating
dismissal based on operational requirements and the prolonged strike
is not
helping matters.
[36]
NUM, UASA and Solidarity concluded the
first
section 23(1)(d)
extension, in the form of an amendment to the
wage agreement by the addition of a new clause 16. Clause 16 extended
the wage agreement
to all employees employed by Sibanye ‘in the
category 4-8 miners, artisans and official recognition units in the
workplace
of each representative employer’.
[37]
Sibanye submitted that there is no end in
sight to the strike, and with it the violence and losses suffered,
and in those circumstances,
but for the second extension, the strike
is not going to end.
[38]
The gist of Sibanye’s case is that
the floor crossing (non-unionised employees joining the coalition
unions and AMCU members
joining other unions) resulted in the
attainment of majority status by the union coalition and that
afforded them the power to
effect the second extension in terms of
section 23(1)(d)
of the LRA. The power was exercised with a view to
restore orderly collective bargaining, achieving labour peace and the
effective
resolution of the labour dispute. The said extension
ensures uniformity of the terms and conditions of employment for all
employees
for the duration of the wage agreement and no conditions
are imposed on AMCU that are less favourable than those applicable to
the members of the coalition unions.
AMCU’s case
[39]
AMCU seeks an order to declare that the
second extension agreement is invalid and that it be set aside as it
amounts to a breach
of the principle of legality, alternatively that
it is
ultra vires
,
alternatively unlawful.
[40]
AMCU’s case is premised on two legs.
[41]
Firstly, that any extension of the wage
agreement to members of a non-party union must necessarily have been
incorporated into that
agreement on the date that it was concluded.
Section 23
of the LRA does not authorise the subsequent extension of
the collective agreement after it has been concluded.
[42]
Secondly, if an extension in terms of
section 23(1)(d)
can take place at a later date,
section 23(1)(d)
does not authorise the parties to extend an existing wage agreement,
which had already started to run its course, with retrospective

effect. In order words, an extended agreement cannot be applied with
retrospective effect to a date when the required majority
did not
exist. Even if the second extension is valid, AMCU members cannot
thus be prevented from striking in respect of the period
1 July 2018
- 18 February 2019, as there remains an unresolved dispute in respect
of the said period. AMCU’s members’
rights cannot be
compromised retrospectively and to a period preceding the extension.
[43]
I will deal with each of the two legs in
turn
infra.
The first leg
[44]
AMCU’s case is that
section 23
of the
LRA, which enables an employer and a majority union, or unions
collectively, to extend the application of a collective agreement
to
non-members, requires that any such extension be provided for in the
collective agreement itself.
Section 23
does not authorise the
subsequent extension of a collective agreement to non-parties
pursuant to a separate and subsequent agreement.
[45]
The argument is that if Sibanye and the
other three unions were not entitled, as at the date of the
conclusion of the wage agreement
to extend it to non-parties because
the unions did not have a collective majority, they are not permitted
to extend the collective
agreement on some later date. This is so
because
section 23
does not permit the employer and some unions to
select the moment to extend an existing collective agreement to
non-parties.
[46]
It therefore follows that the extension
agreement is not authorised by the LRA and therefore it has no
binding effect on AMCU’s
members.
[47]
Section 23(1)(d)
of the LRA stipulates that
a collective agreement binds employees who are not members of the
registered trade union(s) party to
the agreement if the employees are
identified in the agreement, if it expressly binds the employees and
if the trade union(s) has
as members the majority of employees
employed in the workplace. A collective agreement is capable of being
extended in terms of
section 23(1)(d)
if these requirements are met.
[48]
The crisp question is whether a collective
agreement can be extended to non-parties subsequent to its
conclusion. Put differently:
does
section 23(1)(d)
of the LRA require
that any extension of a collective agreement has to be provided for
in the collective agreement
per se,
or
whether the subsequent extension of the collective agreement to
non-parties pursuant to a separate agreement is permitted by
the
section.
[49]
AMCU submitted, and in my view correctly
so, that
section 23(2)
of the LRA is a sensible provision with the
purpose to prevent a situation in which, once a collective agreement
has been concluded
and the majority union thereafter loses its
majority status, it would not affect the binding nature of the
collective agreement
on those to whom it was extended. This avoids
challenges to a majority union’s status throughout the term of
the collective
agreement, which would be disruptive and detrimental
to the efficacy of the collective bargaining process that gave rise
to the
agreement in the first place.
[50]
AMCU’s argument is that by parity of
reasoning, just as unions lacking a majority cannot pick their moment
to challenge the
majority status of the union which concluded the
section 23(1)(d)
collective agreement, so too is a union that attains
majority at some point after the conclusion of the collective
agreement, not
entitled to pick its moment to conclude an agreement
extending an existing collective agreement to non-parties. As a
result, the
second extension is invalid.
[51]
AMCU’s assertion is that
section
23(1)(d)
properly interpreted, means that the requirements for
extension of a collective agreement must be met at the time when the
collective
agreement is concluded. This contention is supported by
arguments advancing the Constitutional right to strike, disruptions
to
orderly collective bargaining, an abuse of the principle of
majoritarianism, the text of
section 23(1)(d)
and the doctrine of
accrued rights.
[52]
Sibanye’s case on the other hand is
that the second extension is valid and does not amount to an abuse of
power. The argument
is that the parties gained the power to effect
the extension by virtue of attaining the required majority and they
exercised it
in accordance with the objects of
section 23(1)(d)
of
the LRA, namely orderly collective bargaining, labour peace and the
effective resolution of labour disputes. AMCU’s assertion
is at
odds with the principle of majoritarianism codified in
section
23(1)(d).
[53]
Sibanye contends that on the basis of the
extension agreements, the issues in dispute are now regulated by the
wage agreement, read
with the extension agreement and therefore
AMCU’s members are prohibited, subject only to verification and
by virtue of the
said agreement, from striking over issues regulated
by the wage agreement.
Interpretation
[54]
When
faced with two competing interpretations, the Constitutional Court in
NUMSA
and Others v Bader Bop and Others
[3]
held
that:
'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 s 36 of the
Constitution.'
[55]
Section 3 of the LRA provides that the
provisions of the LRA should be interpreted to give effect to its
primary objects, in compliance
with the Constitution and in
compliance with the public international law obligations of the
Republic. The primary objects of the
LRA are
inter
alia
to promote orderly collective
bargaining and the effective resolution of labour disputes.
[56]
In casu
AMCU’s
interpretation of section 23(1)(d) is that
the
extension in terms of the said section has to take place at the same
time the wage agreement was concluded and has to be provided
for in
the collective agreement itself and cannot take place at a later date
and pursuant to a separate and subsequent agreement.
This
interpretation is supported by the Constitutional right to strike, as
it advances an interpretation that does not limit fundamental
rights,
which is the preferred interpretation. Care must be taken against
unduly limiting a conferred fundamental right.
[57]
Mr Boda for AMCU submitted that as section
23(1)(c) refers to the binding effect of ‘
the
collective agreement’
and section
23(1)(d) refers to ‘
the agreement
’
it follows that section 23(1)(d) authorizes and employer and majority
union to conclude
a collective agreement
that binds employees who are not party to the agreement. The wording
of section 23 of the LRA contemplates a single agreement and
supports
AMCU’s contention that an extension cannot take place at a
later date.
[58]
Mr Boda further submitted that section
23(1)(d) cannot and should not be used and interpreted to deprive
AMCU members of the right
to continue with a protected strike which
has already commenced, when their demands have still not been met.
AMCU members have
sacrificed their wages from 21 November 2018 to
date and they cannot be deprived of the fruits of their sacrifice
without their
consent and they are entitled to persist with their
strike action where the right to strike has accrued.
[59]
Sibanye’s interpretation of section
23(1)(d) contemplates the possibility of two separate agreements –
a wage agreement
and an extension agreement. Mr Myburgh for Sibanye
submitted that a section 23(1)(d) extension does not have to be
included in
the original wage agreement as it is a self-standing and
separate agreement which can be concluded at any time, and not only
at
the time of the conclusion of the wage agreement.
[60]
AMCU’s interpretation is
unsustainable for a number of reasons.
[61]
Firstly, the wording of section 23(1)(d)
indeed refers to ‘a collective agreement’ and ‘the
agreement’ and
in my view it refers to any collective
agreement, as a self-standing agreement, whether it be a collective
agreement in relation
to wages or an agreement to extend an already
concluded wage agreement. Section 23(1)(d) says nothing about the
timing of a collective
agreement or an extension agreement and does
not exclude it from being introduced through an amendment to the
original collective
agreement. AMCU’s interpretation requires
the reading in of a qualification into section 23(1)(d) which does
not exist.
[62]
In casu,
that
second extension came about further to a process of collective
bargaining and the extension itself is contained in a collective

agreement.
[63]
Secondly, the LRA has to be interpreted to
give effect to its primary objects, which include orderly collective
bargaining and the
effective resolution of labour disputes. To
interpret section 23(1)(d) to mean that the extension of an existing
collective agreement
can happen subsequent to the conclusion of the
collective agreement, is tailored to the specific goal of orderly
collective bargaining
and gives effect to the primary objects of the
LRA.
[64]
Thirdly, there is no authority to support
AMCU’s interpretation, whilst on the other hand, there is
authority for the contention
that an extension of a collective
agreement follows after a wage agreement has been concluded and by
implication that it is a separate
agreement, which may be concluded
later. It goes without saying that there is nothing preventing it
from being included in the
wage agreement itself.
[65]
I am bound to follow the authorities, which
I will deal with
infra
.
[66]
In
AMCU
and Others v Chamber of Mines of SA and Others
[4]
(
Chamber
of Mines
)
the Constitutional Court confirmed that section 23(1)(d) is a
“
codification
of majoritarianism
”
[5]
that limits the right to strike. As to its point of application, the
Constitutional Court held that section 23(1)(d) “finds

application after a collective agreement has been concluded, namely
when the agreement is extended at the behest of the majority
after
the collective agreement process has run its course.”
[6]
[67]
In
Chamber
of Mines of SA acting in its own name and obo Harmony Gold Mining Co
Ltd and others v AMCU and
Others
[7]
this
Court (per Van Niekerk J) held that
[8]
:
‘
The
majoritarian principle that underlies 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 democratization
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 extend their agreement
to non-party employees, collective bargaining
would be characterized
by opportunism and the attendant threat to the formation of stable
relationships.’
[68]
In
Glencore
Operations SA (Pty) Ltd and Others v NUMSA (Glencore)
[9]
this Court was faced with a scenario where
the
employer and a union coalition concluded a wage agreement and a
section 23(1)(d) extension, which applied to NUMSA members.
The wage
agreement however did not contain a peace clause and NUMSA
subsequently referred a dispute of mutual interest to the CCMA.
Faced
with the threat of a looming strike, the parties amended the wage
agreement through the inclusion of a peace clause. When
NUMSA issued
a strike notice, the employer sought an interdict, with NUMSA’s
opposition being that the company could not
deprive its members of
their vested right to strike by amending the wage agreement
ex
post facto
.
[69]
This
Court (per Moshoana J) found as follows:
[10]
‘
Even
in instances where a strike had commenced and it becomes apparent
that the strike contravenes a peace obligation, this court
is
empowered to place an [injunction]. Therefore, what renders this
strike unprotected is not the procedural requirements but the

substantive requirements. To my mind, nothing turns on the fact that
the collective agreement was entered into when the procedural

requirements were being complied with. It may well be so that the
intention of the applicants was to thwart the possible strike
by the
respondent and its members. To my mind, doing so is not unlawful and
is actually part of the power play. It must be remembered
that in the
peace obligation clause, the applicants equally limit their power to
flex their muscles, as in locking out. Similarly,
the majority unions
equally clipped their wings to call their members for a strike. As
Van Niekerk J aptly puts it, the
majoritarian principles
underlies s 23(1)(d) and it promotes orderly collective
bargaining with a legitimate purpose of advancing
labour peace’.
[70]
It is evident from the aforesaid
authorities that at the level of principle there is nothing wrong or
unlawful in parties agreeing
on an extension or amendment to a
collective agreement
ex post facto
the
wage agreement.
[71]
The fact that the prompt for an extension
agreement is the achievement of majority representation at a point in
time after conclusion
of the wage agreement, is of no consequence.
If the majority threshold is achieved and the other formal
requirements of section
23(1)(d) are met, the extension takes effect
by operation of law. The effect thereof may be to deprive minority
union members of
their right to strike, but that is a consequence of
the application of the majoritarian principle.
[72]
Inherent in section 23(1)(d) is the fact
that it deprives minority union members of certain rights, including
the right to strike.
The Constitutional Court has confirmed in
Chamber of Mines
that
section 23(1)(d) passes constitutional muster:
‘
AMCU
is right that the codification of majoritarianism in s 23(1)(d)
limits the right to strike. The key question is whether the
principle
provides sufficient justification for that limitation. Both the
Labour Court and the Labour Appeal Court gave detailed
and extensive
consideration to this. I do not seek to improve their reasoning. In
short, the best justification for the limitation
the principle
imposes is that majoritarianism, in this context, benefits orderly
collective bargaining.’
[73]
AMCU’s argument that members have
sacrificed their wages from 21 November 2018 to date and they cannot
be deprived of the
fruits of their sacrifice without their consent,
is not sustainable in law. AMCU members benefit to the extent that
they become
entitled to the improved conditions of employment
embodied in the wage agreement, with retrospective effect to the
normal implementation
date.
[74]
To sum up: the
ex
post facto
extension of a collective
agreement is not unlawful or
ultra vires
and it takes effect by the operation of
law if the formal requirements of section 23(1)(d) have been met.
The second leg
[75]
The second leg of AMCU’s case is that
if an extension in terms of section 23(1)(d) can take place at a
later date, the parties
cannot extend an existing wage agreement
retrospectively and they cannot apply the agreement to a date when
the required majority
did not exist.
[76]
In other words, even if the second
extension is valid, AMCU members cannot be prevented from striking in
respect of the period 1
July 2018 until 18 February 2019, as there
remains an unresolved dispute and their rights cannot be compromised
retrospectively
and for any period preceding the extension.
[77]
The essence of the attack on the second leg
is the retrospective reach of the extension. AMCU’s case is
that section 23(1)(d)
does not permit the retrospective extension of
a wage agreement so as to compromise AMCU’s demands and its
vested right to
strike in relation to them, which pre-date both the
date of the extension and the union coalition’s alleged
obtaining of
majority status.
[78]
Mr Boda submitted that legislative
provisions do not apply retrospectively unless retrospective
application is expressly or by necessary
implication provided for in
the statute itself and legislative provisions are presumed not to
affect vested rights, such as the
right to strike.
[79]
The gist of AMCU’s case is that its
constitutionally entrenched right to strike over wages and terms and
conditions of employment
in respect of the period 1 July 2018 until
18 February 2019, cannot retrospectively be revoked by the extension
agreement and that
the right to engage in protected strike action in
respect of the said period, remains intact.
[80]
Mr
Boda referred to authorities
[11]
where the principle that legislation is not to be interpreted to
extinguish existing rights and obligations, unless the statute

provides otherwise or its language clearly shows such a meaning, was
confirmed. There is a presumption against the retrospective

application of legislation, premised upon the unwillingness of the
court to inhibit vested rights and statutes should if possible,
be
interpreted so as not to take away rights vested at the time of their
promulgation
[12]
.
[81]
Mr Boda submitted that the right to strike
is a fundamental right in terms of section 23(2)(c) of the
Constitution and any law that
curtails that right, must be construed
in a manner which is consistent with that right, save to the extent
that its curtailment
is justified in terms of section 36, the
limitations clause.
[82]
Mr Boda further submitted that section
23(1)(d) of the LRA prohibits an extension where the parties are not
the majority and as
the union coalition was not the majority on 1
July 2018, they cannot extend an agreement when they did not have
majority status.
The parties cannot by subsequent agreement confer
the authority that the legislature did not confer upon them at the
time the concluded
the wage agreement. This will not only apply the
principle of majoritarianism retrospectively, but also to a period
which the parties
did not have the power to bind non-parties in terms
of the law.
[83]
In my view there are obvious difficulties
with AMCU’s contention.
[84]
First, AMCU’s reliance on the
presumption against the retrospectivity of legislation is misplaced.
That presumption pertains
to new legislation and operates so as to
exclude new legislation from affecting matters that arose prior to
that new legislation
commencing. The authorities referred to by Mr
Boda all pertain to new statutory enactments and the question whether
those enactments
applied retrospectively.
[85]
Section 23(1)(d) of the LRA was on the
statute books long before the AMCU strike commenced and is thus
entirely unaffected by the
presumption AMCU seeks to rely on. To the
extent that AMCU seeks to draw on the presumption against
retrospectivity of new legislation
and to fashion a principle that
there is a presumption against parties contracting retrospectively in
the context of section 23(1)(d),
it is without merit and not
sustainable in the context of collective bargaining and the principle
of majoritarianism.
[86]
Secondly,
in
AUSA
and others v SAA SOC Ltd and others
[13]
the
Court held that
while
it may appear objectionable that section 23(1)(d) can be used in this
way (i.e  so as to deprive individuals (and thus
their unions)
of the right to challenge the fairness of a retrenchment process) the
section permits all collective agreements to
be extended in terms
thereof and is not limited in its scope to only agreements that do
not involve a deprivation of rights. Indeed,
most collective
agreements extended in terms of s 23(1)(d) involve depriving
non-party employees of some or other right as an element
of the
compromise that the agreement inevitably represents.
[87]
The same principle applies
in
casu.
Once a collective agreement is
extended in terms of s 23(1)(d), its effect is to deprive non-party
employees of some right and in
this instance, it deprives AMCU and
its members of the right to strike.
[88]
Thirdly, section 23(1)(d) does not contain
any qualification or limitation as to the extension of a collective
agreement or the
application of an extended collective agreement.
There is nothing in section 23(1)(d) that provides that a collective
agreement
that has been extended, is extended only prospectively. In
other words, there is nothing in the provisions of the LRA as to the

extension of a collective agreement that limits it to prospective
application or that prohibits retrospective application.
[89]
Fourthly, the fact that the union coalition
did not have the majority representivity during the period 1 July
2018 until the date
of the second extension is neither here nor
there. A majority union has the power to contract in relation to
issues that pre-date
its majority status and the determinative issue
is that the union had majority status at the time of the extension.
[90]
Fifthly, the operation of the collective
agreement is a central consideration.
In
casu
the duration of the wage agreement
is 1 July 2018 until 30 June 2021. The contractual effect of the
second extension agreement is
that both the said extension agreement
as well as the wage agreement operate retrospectively to 1 July 2018.
[91]
As I have already indicated, when the wage
agreement was concluded on 14 November 2018, the members of the
coalition unions became
entitled to the benefits of the wage
agreement, which was backdated to 1 July 2018. When the wage
agreement was extended in February
2019, the AMCU members also became
entitled to the benefits of the wage agreement, backdated to 1 July
2018.
[92]
In
Kem-Lin
Fashions CC v Brunton and Another
[14]
the
Labour Appeal Court has held that :
‘…
.it
seems to me that the effect in law of an extension of a collective
agreement in terms of section 32(2) is that, for all intents
and
purposes, a non-party is turned into a party, and is placed in
relation to the collective agreement on the same level as a
signatory
to the collective agreement’
[15]
.
[93]
In other words, the collective agreement is
binding to the non-parties as if it is their agreement, struck for
them by the majority
union. The terms of the agreement become
applicable once the agreement is extended and
in
casu,
it means that the agreement,
operational from 1 July 2018 until 30 June 2021, is effective from 1
July 2018 and that it settles
the issues set out in the agreement.
[94]
In
Chamber of
Mines
the Constitutional Court
confirmed that:
‘
And
the limitation a section 23(1)(d) agreement imposes on the right to
strike is strictly circumscribed – in both ambit and
time.
A
collective agreement extended to non-parties does not apply to them
indefinitely. It applies only for the duration of the agreement
and
regarding the specific issues it covers.
Section 23(1) does not countenance indefinite or far-reaching
extension. It directly ties the limitation of the right to strike
to
the outcome of the collective bargaining. It is narrowly tailored to
the specific goal – orderly collective bargaining.
Given the
carefully circumscribed ambit of the limitation and the importance of
its purpose, it is reasonable and justifiable’.
(own emphasis)
[95]
AMCU seems to have accepted that the vested
right to strike is compromised by an extension and if the second
extension is valid,
they can no longer strike to secure better wages
as from 18 February 2019, for the duration of the wage agreement.
[96]
AMCU however complains of the limitation or
deprivation of a vested right to strike in respect of the period 1
July 2018 –
18 February 2019. This complaint is without merit.
Section 23(1)(d) provides for the extension of a collective agreement
to minorities
and in the context of collective bargaining, such
extension limits the right of minority unions to strike if there is a
peace clause
in the collective agreement.
In
casu
and by extending the wage
agreement to AMCU, the peace clause was also extended to AMCU and
this clause expressly deprives AMCU,
or any of the other parties to
the agreement, of the right to strike for the duration of the
agreement.
[97]
The
LAC in
Association
of Mineworkers and Construction Union and others v Chamber of Mines
of SA acting in its own name and on behalf of Harmony
Gold Mining Co
(Pty) Ltd and others
(
AMCU
v COM)
[16]
held that section 23(1)(d) is a manifestation of the principle of
majoritarianism and that:
‘
S
ection
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’.
[98]
To accept AMCU’s contention that its
members retain the right to strike over the issues settled by the
collective agreement
for the period 1 July 2018 until 18 February
2019 will have absurd results and will not give effect to the object
of orderly collective
bargaining. To illustrate this point: the wage
negotiations commenced in July 2018, after the previous wage
agreement expired on
30 June 2018. The parties were engaged in wage
negotiations since July 2018 and the wage agreement between Sibanye
and the union
coalition was concluded in November 2018. If, at the
time of the conclusion of the wage agreement, the union coalition had
the
majority and extended the agreement in terms of section 23(1)(d),
there could be no question of AMCU being able to continue with
the
strike, demanding a greater increase for the period 1 July – 14
November 2018. There is no reason in law or otherwise
why the
position should be different only because the wage agreement was
extended in February 2019 and not in November 2018.
[99]
Furthermore, it would effectively mean that
in all instances where parties enter into a wage agreement that
applies retrospectively
and such agreement is extended to minority
union members, there would be no way of stopping the minority union
from striking for
a wage increase or better benefits in respect of
the period that preceded the date of the wage agreement. Not only
will this be
absurd, it will also undermine the fibre of orderly
collective bargaining and the accepted principle of majoritarianism.
[100]
To allow minority unions, bound by an
extended collective agreement, to strike over demands relating to a
specific period either
prior to the signing of the collective
agreement or the extension thereof, will result in chaos and
uncertainty, the direct antithesis
of labour peace.
[101]
Lastly, AMCU’s argument that it
retains the right to strike in respect of their demands for the
period 1 July 2018 until 18
February 2019, is entirely artificial as
the AMCU members are in fact striking about their demands concerning
terms and conditions
of employment for the period 1 July 2018 to 30
June 2021, and not from 1 July 2018 to the date of the extension.
Costs
[102]
This Court has a wide discretion in respect
of costs, considering the requirements of law and fairness.
[103]
I have considered the fact that the parties
before me are in a continuous collective bargaining relationship and
that the issues
before me were not clear cut.
In
my view this is a case where the interests of justice and fairness
will be best served by making no order as to costs.
[104]
In the premises, I make the following
order:
Order:
1.
The application is dismissed;
2.
There is no order as to costs.
__________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:                          Advocate

F A Boda SC
Instructed
by:                                 Larry

Dave Attorneys
For the First Respondent:
Advocate
A Myburgh SC with Advocate
M van As and Advocate R Itzkin
Instructed
by:                                Cliffe

Dekker Hofmeyr Inc Attorneys
[1]
Act
66 of 1995 as amended.
[2]
The
history of the dispute was aptly summarized in case number J
4552/18, wherein judgment was handed down on 21 December 2018,
as
well as case number J 69/19 wherein judgment was handed down on 8
February 2019.
[3]
2003
(3) SA 513 (CC)
;
(2003)
24
ILJ
305 (CC)
[2002] ZACC 30
; ;
[2003] 2 BLLR 103
(CC) at para 13.
[4]
(2017)
38
ILJ
831 (CC).
[5]
Chamber
of Mines
at
para 50.
[6]
Chambers
of Mines
at
para 57.
[7]
(2014)
35
ILJ
3111 (LC) at para 69.
[9]
(2018) 39
ILJ
2305 (LC).
[10]
Glencore
at para 19.
[11]
National
Director of Public Prosecutions c Carolus and Others
2000
(1) SA 1127
at 1138 – 1139
,
Veldman v Director of Public Prosecutions
2007 (3) SA 210
(CC),
Yew
Bon Tew v Kenderaan Bas Mara
[1982]
3 All ER 833
at 836.
[12]
Curtis
v Johannesburg Municipality
1906
TS 308
,
Kaknis
v Absa Bank Limited and Another
[2016]
ZASCA (15 December 2016).
[13]
(2015)
36 ILJ 3030 (LC).
[14]
(2001)
22
ILJ
109 (LAC) at para 25.
[15]
In
Chamber
of Mines
(at
para 57) the Constitutional Court referred to a principle in the
context of section 32 of the LRA and found that the implication
was
analogous to section 23 and that the same principle applies to
section 23 extensions. The same applies
in
casu
and
the same principle applies to section 23(1)(d) extensions.
[16]
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of SA acting in its own name and on behalf of
Harmony Gold Mining Co
(Pty) Ltd and Others
(2016)
37 ILJ 1333 (LAC).