Labour Court judge André Van Niekerk, in a lengthy and erudite judgment delivered yesterday, decided that the principle of legality is not violated by s 23(1)(d) of the Labour Relations Act 66 of 1995 (LRA).   It does not unreasonably or unjustifiably limit the right to strike.   In his opinion the inability of employers and unions to extend a collective agreement to other employees in the workplace, as defined in the LRA, would mean that ‘collective bargaining would be characterised by opportunism and the attendant threat to the formation of stable relationships’.   Dealing with Amcu’s interpretation of a workplace in the LRA to mean a mine rather than an entire company as a single workplace, justice Van Niekerk believed that Amcu did not like the legal consequences created by the application of an unambiguous definition to the undisputed facts.

Labour Court grants final order on 23 June 2014

In Chamber of Mines of SA v AMCU [2014] 3 BLLR 258 (LC) an interim order was granted by justice Cele in the Labour Court.   On the return day the interim order was made final by justice Van Niekerk.   The judgment of justice Van Niekerk in Chamber of  Mines v Amcu is now available thanks again to Saflii.   In the Amcu judgment of justice Van Niekerk, delivered yesterday, it was pointed out that there is no conflict between the concept of a bargaining unit and a workplace.   He stated in para [57] that ‘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’.

Majoritarianism

It is asserted  that a majority categorised by an identifying factor, such as trade union membership, is entitled to a certain degree of primacy in an enterprise and has the right to make decisions that affect employees other than its own union members.   Opponents refer to majoritarianism as “mob rule” or the “tyranny of the majority” whereas adherents of majoritarianism assert that majority decision-making is intrinsically democratic.

Interim order granted by Labour Court

When the matter was heard by justice Cele earlier this year the Chamber, acting on behalf of three gold mining companies, applied under s 158(1)(a) of the LRA for an interim order to

  • declare Amcu’s proposed strike action unprotected; and
  • interdict Amcu from inciting or otherwise encouraging its members and or any other employees from embarking on the unprotected strike.

The Chamber argued that Amcu and its members were bound by a collective agreement regulating wages and other terms and conditions of employment entered into between the Chamber on behalf of its members and other trade unions. Clause 17 expressly prohibited a strike by those bound by the agreement.

Background

For the past 30 years collective bargaining in the gold mining sector has been conducted centrally at industry-level, with the mines being represented by the Chamber (an employers’ organisation). Centralised agreements are concluded between the Chamber (representing its members) and various unions, which have generally provided for uniform conditions of service across the industry. Since at least 2001, collective agreements have been applied by the mines to employees who are not members of the party unions to ensure the standardisation of conditions of service within the ‘workplace’.

The issue

The wage agreement was purportedly extended to employees who were not members of the party unions and done in circumstances where it was believed NUM, Solidarity and UASA represented the majority of employees at each employer’s workplace which in turn formed on consolidated workplace.   Amcu argued that the collective agreement constituted a fundamental intrusion into and breach of the right of their members to strike over interest disputes as guaranteed in the Constitution and the LRA.

Workplace

The Chamber argued that each of its members is tightly controlled from a head office or corporate office. The structure of the management portfolios reflects how the member is managed centrally with the financial and production planning, including the setting of production targets and staff levels, occurring at head office-level.    The members of the trade unions who signed the collective wage agreement were in the majority.   All three gold miners insisted their mining operated as single integrated units and were not independent of one another by reasons of their size, function or organisation. This structure enabled the Chamber’s members to remain competitive, efficient, cost effective and it enhanced quick decision-making.

Constitutional challenge

The Chamber relied on s 23(1)(d) of the LRA and the meaning of ‘workplace’.   Justice Cele  assumed that s 23(1)(d) of the LRA was constitutional and that the meaning of ‘workplace’ was the key issue. The general rule is stated in the primary part of the definition, all the place or places where employees of an employer work constitute a single workplace. The second part of the definition is in the nature of a proviso, it is not an independent clause, but rather provides an exception to the primary part of the definition.

Justice Cele referred to articles written by two leading academics, Clive Thompson and Martin Brassey, in which it is clear that in the private sector the nature of a ‘workplace’ is a question of fact.   Quoting from Martin Brassey:

‘If the employees all work in one place, it is the workplace: if they are divided into separate branches or depots, the separate locations can each be a workplace.   Deciding whether two locations are separate workplaces entails an examination of the extent to which they operate independently of each other, which in turn entails a consideration of the size, function and organisation of each.   Geographical separation will be important, but will not always be decisive.’

Amcu argued that the workplace is simply the area where the organisational rights are to be exercised but conceded that great difficulty arises in defining a workplace where an enterprise operates at different sites or has different divisions.

A single workplace

After assessing various factors justice Cele found that the Chamber had proved that the various operations or mines making up Harmony, AGA and Sibanye did constitute a single workplace.   ‘The majoritarian principle should accordingly carry the day in a democratic collective bargaining exercise’.   The democratic process of the majoritarian representation prevails by accepting that Num, Solidarity and Uasa represent the majority of the employees in the workplace. ‘If the minority employees represented at the workplace by Amcu were to succeed and have a new wage agreement to come about and to supplant the existing collective agreement, the minorities would be governing for the majority in the workplace’.

Not one worker one bargaining unit

An article by Professor Halton Cheadle “One man, one bargaining unit” was published in (1990) Employment Law 7:2 p 36 in which he criticised a decision of the industrial court.   The industrial court determined that employers were obliged to bargain with minority trade unions.   Tedelex had recognised Numsa as the collective bargaining representative within an agreed bargaining unit. A minority trade union with 15% support in the same bargaining unit demanded the right to bargain. Tedelex refused to accept its presence at the bargaining table but the industrial court compelled Tedelex to bargain with the minority union.

Halton Cheadle concluded his article by stating ‘Mr de Kock ends his judgement by saying that he knows it will have a ‘profound effect’ on collective bargaining.   But he is resigned to this; for he must, as he says, “apply the law as it is”.   He seems to see the law as set in concrete; if his interpretation of the law is correct, he’s right – it is set in the sort of concrete used for drowning things, sound industrial relations in particular’.

Bargaining units

The system of majoritarianism applies in the USA and the legislation refers to ‘bargaining units’ and not ‘workplaces’.   One of the tactics adopted by employers in the USA is to create ‘bargaining units’ in different parts of the USA to frustrate attempts by trade unions to be recognised as a bargaining agent in any of those units.   Once a trade union proves that it represents the majority of employees in a bargaining unit it has to be recognised in respect of that bargaining unit. It then becomes the sole representative of all the employees in that unit. The National Labour Relations Board determines suitable bargaining units and relies on factors such as:

  • similarity of the terms and conditions of employment and the method of their computation;
  • correspondence of qualifications, skills and training;
  • physical proximity and frequency of contact;
  • functional integration of the firm;
  • the firm’s supervisory and organisational structure;
  • the extent of union organisation and the bargaining history; and
  • the workers’ desires.

Workplaces

In South Africa a trade union’s entitlement to organisational rights under the LRA is determined with reference to its representivity in the ‘workplace’.   The only exception is s 64(2)(d) of the LRA which includes a dispute about appropriate bargaining units in the definition of a ‘refusal to bargain’. It seems that Cosatu was anxious to ensure that employers did not create ‘bargaining units’ and in the process recognise trade unions with minority support in an enterprise. This could lead to trade union rivalry which was not in the best interests of Cosatu.

With regard to the private sector s 213 of the LRA provides that, unless the context indicates otherwise, the term ‘workplace’ means

‘the place or places where the employees of an employer work.   If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation’.

In defining a ‘workplace’ great difficulty arises when enterprises operate at different sites or have different divisions.   But justice Van Niekerk dealt with all the arguments and found that there was only one ‘workplace’.