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[2019] ZALCJHB 158
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UASA and Others v Western Platinum Limited and Others (J1338/19) [2019] ZALCJHB 158; (2019) 40 ILJ 2405 (LC); [2019] 11 BLLR 1283 (LC) (24 June 2019)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Case no: J 1338-19
Reportable
In
the matter between:
UASA
on behalf of its members
FIRST APPLICANT
SOLIDARITY
on behalf of its members
SECOND APPLICANT
NATIONAL
UNION OF MINEWORKERS (NUM)
on
behalf of its
members
THIRD APPLICANT
and
WESTERN
PLATINUM LIMITED
FIRST
RESPONDENT
EASTERN
PLATINUM LIMITED
SECOND
RESPONDENT
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION
UNION (AMCU)
THIRD
RESPONDENT
Heard:
20 June 2019
Judgment:
delivered: 24 June 2019
Summary:
agency shop agreement invalid and unenforceable – not compliant
with statutory formality
– agency shop agreement must expressly
provide for matters prescribed by s 25(3) of the LRA
JUDGMENT
WHITCHER J
[1]
UASA, Solidarity and NUM, in summary, seek on an urgent basis that
the agency shop
agreement concluded between AMCU and Lonmin (the
First to Third Respondents) on 24 April 2019 be declared to be
invalid and unenforceable.
[2]
AMCU, as
majority union in the workplace of Lonmin, concluded an agency shop
agreement with Lonmin on 24 April 2019. In terms of
the agreement,
Lonmin shall deduct an agency fee from wages of all employees within
the bargaining unit at Marikana Operations
as defined in the
recognition agreement between Lonmin and AMCU, but from wages of only
employees who are not members of AMCU.
The Applicants have members
who are employees within the bargaining unit at Lonmin's Marikana
Operations, as defined in the recognition
agreement between Lonmin
and AMCU. On the same day, the Registrar of Labour Relations in terms
of section 106(2B) of the LRA gave
notice of his intention to cancel
AMCU's registration as a trade union on the basis that AMCU has
ceased to function in terms of
its constitution and AMCU is not a
genuine trade union as envisaged in the LRA.
The
Applicants and their members only received a copy of the agency shop
agreement on 22 May 2019 and within days sought certain
undertaking
from Lonmin and AMCU. When this failed, they launched this
application on 29 May 2019.
[3]
The Applicants have two main grounds for the application: invalidity
of the agency
shop agreement and the intended cancellation of AMCU’s
registration. The application is opposed by AMCU only. AMCU contends
the matter is not urgent, the dispute concerns the interpretation of
a collective agreement, thus the Labour Court lacks jurisdiction,
the
agency shop agreement is valid and AMCU is a registered trade union.
Urgency
[4] I accepted
that the matter is urgent in light of the Department of Labour’s
intention to deregister AMCU and the difficulty this would place the
Applicants’ members as creditors to recoup payments through
an
uncertain process. In the absence of AMCU addressing the merits of
the department’s allegation that they are indeed not
functioning as a
bona fide
union, the prospect of an injury to
the Applicants’ members compelled by the agency shop agreement
to contribute to AMCU
is a possibility the court cannot overlook as
merely speculative. Moreover, AMCU was not prejudiced in the
preparation of its response
as it took 12 court days to deliver its
answering affidavit.
Validity of agreement
[5]
Section 25(3) of the LRA reads as follows:
An agency shop agreement is binding
only if it provides that-
(a)
employees who are not members of
the representative trade union are not compelled to become members of
that trade union;
(b)
the agreed agency fee must be equivalent to, or less than-
…
(c)
the amount deducted must be paid into a separate account
administered by the representative trade union; and
(d)
…
[6]
The Applicants submit that the agency shop agreement does not comply
with the provisions
of section 25(3)(a) of the LRA in that it does
not
provide
that
"employees who are not members of
[AMCU] are not compelled to become members of [AMCU]”.
[7]
Clause 7.1 of the agency shop agreement provides that
"…employees
who
are not members of any trade union
shall not be compelled to become members of AMCU".
[1]
[8]
In
Greathead
v SACCAWU
[2]
an agency shop agreement did not
expressly
provide for the matters referred to in sections 25(3)(a) and (c) of
the LRA. The union argued that there was substantial compliance
in
that the requisite provisions of s 25(3) need not be expressly
recorded in the agreement, but may also be incorporated by
implication.
The Supreme Court of Appeal disagreed and held that:
The Act requires
the agreement to be in writing and to 'provide' specifically for
those matters prescribed by s 25(3). In my judgment
the agreement in
the respects referred to failed to comply with the requirements of s
25(3). In the result it never became a binding
agreement
.
[3]
[9]
Counsel for the Applicants correctly argued that under the authority
of
Greathead
an agency shop agreement is valid only if it expressly and
specifically replicates all the provisions of s 25(3) of the LRA.
[4]
This is so because agency shop agreements entail a limitation of
employees’ constitutional and statutory rights.
[10]
The argument that the basis on which
Greathead
was
decided is distinguishable from the facts of this matter because more
was wrong with the agency shop agreement in
Greathead
than
in casu
, is misconceived. Even if one provision of s 25
(3) is not replicated in the agency shop agreement, the
ratio
in
Greathead
applies.
[11]
Counsel for AMCU makes a good point that, in the labour arena, a
practical approach to interpreting
collective agreements is generally
the norm such as evinced in
North
East Cape Forests v SAAPAWU
[5]
.
Labour
courts do more readily recognise implied or tacit terms in collective
agreements especially if these give effect to the purpose
of the
document. I may have been inclined to do so too if the essence of
this matter rested on interpreting the terms and conditions
of the
agreement. Likewise, if the issue in dispute primarily concerned
interpreting the terms of the agreement to rule on the
enforceability
of these terms, I would have declined to hear the matter for want of
jurisdiction. However, determining the present
matter rests not on
interpreting terms and conditions. Rather, following the
interpretation of s 25 (3) of the LRA set out in
Greathead
,
this court is called upon in the first place, to examine whether an
agency shop agreement complies with certain formalities in
order to
be
valid
.
An enquiry into the validity of a collective agreement may, of needs
be, perform some interpretive work but what gives the court
jurisdiction is the essential nature of the claim made by the
Applicants. This is that the collective agreement is invalid and
that
its application to their members would thus be unlawful. These
matters are properly the provenance of the Labour Court.
[12]
In this matter, we must examine clause 7.1 of the agency shop
agreement simply to understand
whether it was compliant with the
formality stated in
Greathead
.
The interpretive
work is thus confined to testing the
form
of the clause and
not so much its content. As set out in
Greathead
, form
is constitutionally important in agency shop agreements.
[13]
It is apparent that clause 7.1 does not expressly provide that
employees who are not members
of the representative union obtaining
the agency shop agreement are not compelled to become members of that
union. Instead, it
states
that
"(t)he parties agree that employees
who
are not members of any trade union
shall not be compelled to become members of AMCU".
[6]
This
is really the end of the matter. The agency shop agreement is not
compliant with the
statutory
formality
and the agreement is thus invalid. It follows that it would be
unlawful to make any deductions from non-AMCU members in terms of
an
invalid agreement and the Applicants are thus entitled to the relief
they seek to interdict an imminently unlawful act occurring.
[14]
For completeness sake, I should briefly deal with the construction
AMCU places on
Solidarity
and Others v Minister of Public Service and Administration
[7]
where
the Labour Court held as follows in para [25]:
In my view the
agreement substantially complied with statutory requirements…However
this does not make the agreement valid
for reasons that the agency
agreement interferes with a person’s constitutional right of
freedom of association as contained
in section 18 of Chapter 2 of the
Bill of Rights. It therefore becomes an unfair labour practice
to force the employee to
join a trade union by making deductions on
his salary to make him join the union. The legislature was
aware of this and therefore
sought to provide that the agreement
should
make provision for the fact that non-union members are not compelled
to become members. This is a fundamental requirement
necessary to
make the agreement valid.
[8]
[15]
Taking his lead from the
Solidarity
matter, counsel for
AMCU submits that clause 7.1 makes provision that non-union members
are not compelled to become members. But
herein he reproduces the
original error of the drafters of the collective agreement. What the
legislature provided for –
and what the learned judge in
Solidarity
was saying – is that employees who
were not members of the union obtaining an agency shop should not be
compelled to become
members of this union. ‘Non-union’ in
this sense means employees who are not members of the majority union;
a class
that may include employees who are not members of any union
and those who are members of minority unions. The agency shop
agreement
between Lonmin and AMCU only expressly
provided for
the exemption of the former from compulsion to join AMCU when it is a
statutory formality that the latter are also expressly excluded.
[16]
On the issue of costs, considering the relationship between opposing
parties, it is not appropriate
to grant an adverse cost order.
Order
1.
The
Agency Shop Agreement concluded between the First to Third
Respondents on 24 April 2019 is invalid and unenforceable.
2.
The
First and Second Respondents are interdicted from deducting any
agency fee in favour of the Third Respondent from the wages
of the
Applicants’ members in terms of the said Agency Shop Agreement.
3.
The
First and Second Respondents are ordered to immediately refund all
agency fee deductions made or to be made from the wages of
the
Applicants’ members in terms of the Agency Shop Agreement.
4.
There
is no order as to costs.
Benita Whitcher
Judge
REPRESENTATION:
For
the Applicants:
R Grundlingh, instructed by Bester
& Rhoodie Attorneys and
Serfontein Viljoen &
Swart Attorneys
For
the Third Respondent: A L Cook, instructed by Larry Dove Attorneys
[1]
Applicants’
emphasis.
[2]
(2001) 22 ILJ 595 (SCA)
[3]
At para [12]
.
[4]
John Grogan,
Collective
Labour Law
, 2
nd
ed, p 34.
[5]
[1997] 6 BLLR 711
(LAC)
.
[6]
Own emphasis.
[7]
(J648/03)
[2003]
ZALC 122
(21 April 2004).
[8]
Their emphasis.