Organisational rights threshold: DCJ supporting judgment

Labour Relations Act 66 of 1995 — interpretation of sections 18 and 20 — collective agreements — thresholds of representativeness

collective bargaining by minority unions — sections 12, 13, and 15 rights — mootness — interests of justice — interpretation of Bader Bop

Media

The following explanatory notes are provided to assist the media in reporting this case and are not binding on the Constitutional Court or any member of the Court.

Media  summary – 23 August 2018

On 23 August 2018 at 10h00 the Constitutional Court handed down judgment in an application instituted by Police and Prisons Civil Rights Union (POPCRU), a majority wherein it trade union of employees in the Department of Correctional Services (DCS), sought leave to appeal against the whole of a judgment of the Labour Appeal Court.

The Labour Appeal Court found that the DCS was entitled to enter into an agreement granting organisational rights in terms of sections 12, 13 and 15 of the Labour Relations Act (LRA) to South African Correctional Services Workers’ Union (SACOSWU), a minority trade union (the first respondent). These rights were the subject of a section 18(1) collective bargaining agreement that set a membership threshold for the acquisition of these rights; SACOSWU’s membership fell short of this threshold.

On 8 November 2001, POPCRU entered into a collective bargaining agreement with DCS in terms of which the threshold for admission to the DCS’s Bargaining Council for a single registered union, or for two or more registered unions acting jointly, was agreed to be 9 000 members, which amounts to approximately 22,5% of employees (threshold agreement). The threshold agreement also regulates the representation of employees at disciplinary and grievance proceedings. A second collective bargaining agreement regulates relations between all employees and DCS, and provides that only unions admitted to the Bargaining Council or any sector of the Bargaining Council will have the following rights:

• (1) union access to the workplace;
• (2) access to stop-order facilities for union subscriptions;
• (3) leave for union activities;
• (4) use of facilities; and
• (5) the right to elect shop stewards.

SACOSWU, a minority trade union with about 1 500 members entered into the collective bargaining agreement in question with DCS as per section 20 of the LRA around 5 November 2010. This collective agreement gave SACOSWU rights to organise union activities outside working hours; represent its members at disciplinary hearings and to assist members in grievance procedures; and to deduct subscriptions from its members.

POPCRU took issue with the collective bargaining agreement entered into between DCS and SACOSWU, arguing that it was unlawful since DCS was bound by the threshold agreement not to grant organisational rights to minority trade unions. On this basis, POPCRU referred the matter to the General Public Service Sector Bargaining Council (GPSSBC) for conciliation, but the dispute was not resolved. The dispute was then referred for arbitration.

The arbitrator found that the collective bargaining agreement entered into by SACOSWU and DCS was valid.

POPCRU appealed to the Labour Court which found in its favour, holding that a collective bargaining agreement regulating the issue of organisational rights would have preference over any other provision in statute relating to organisational rights.

SACOSWU then successfully appealed to the Labour Appeal Court (LAC). The LAC held that a section 18 threshold agreement sets a minimum threshold for automatic acquisition of rights and is not a barrier to minority trade unions obtaining the same through their own collective bargaining.

In the Constitutional Court, the central dispute between the parties concerned the proper interpretation of sections 18 and 20 of the LRA. POPCRU argued that a section 18 collective bargaining agreement is binding, in terms of section 23 of the LRA, on all parties and other employees and trade unions not party to the threshold agreement.

Consequently, an employer cannot enter into another collective bargaining agreement with a minority trade union granting that trade union rights regulated in a section 18 collective bargaining agreement. SACOSWU, on the other hand, contends that a section 20 collective bargaining agreement trumps a section 18 collective bargaining agreement as section 20 states that “nothing” in that Part of the LRA prevents a minority trade union from entering into a collective bargaining agreement with the employer.

Section 23, which POPCRU argues gives the threshold agreement its binding effect, falls into a different Part of the LRA. SACOSWU further argued that this matter is moot, because the threshold agreement on which POPCRU’s case rests has been superseded by a subsequent agreement.

In a majority judgment penned by Jafta J (Zondo DCJ, Dlodlo AJ, Goliath AJ, Khampepe J, Madlanga J, and Petse AJ concurring) this Court found that the matter between the parties is moot, since the threshold agreement in contention ceased to exist in 2015.

The merits of the matter were nevertheless decided on the basis that it was in the interests of justice to interpret the meaning of sections 18 and 20 since such interpretation may still have effect on disputes arising on the same legal question but between different parties.

The LAC judgment also made certain errors of law which needed rectification, despite the outcome of the matter remaining the same. The minority judgment found, in addition, that the matter was moot based on the fact that section 21(8C), an amendment made after the present dispute arose, allowed a minority union to go to arbitration to get organisational rights provided for in sections 12, 13 and 15. The majority held that section 21(8C) provided but one avenue for acquiring organisational rights and as such did not resolve the interpretative question, raised by sections 18 and 20, in how these
rights were acquired.

It found that POPCRU’s interpretation of section 18 was incorrect as it would effectively deny minority unions the right to engage in collective bargaining. This right is conferred on every trade union by the Constitution, regardless of whether the union is a minority or majority union. It is not surprising, the Court said, that section 18 does not prohibit collective bargaining between an employer and a minority union where there is a collective agreement between that employer and the majority trade union. Such a prohibition would be inconsistent with the Constitution and international law.

Although the outcome reached by the LAC may not be altered, the pillars on which that outcome rests cannot be left intact.

LAC error 1

One of the errors made by the LAC was that the collective agreement between the employer and a majority union may be construed as prohibiting agreements with minority unions. An agreement that seeks to limit the right to collective bargaining would be inconsistent with the Constitution and invalid where it was not a limitation that meets the requirements of section 36 of the Constitution.

LAC error 2

The other error, that a union’s right to represent employees in grievance and disciplinary proceedings is sourced from section 12 of the LRA, was resolved by pointing to section 14(4) of the LRA which expressly conferred this right on unions.

Importantly, that right does not fall within the scope of a section 18 collective agreement. Therefore, acquisition of the right to represent members at disciplinary proceedings may not depend on meeting a threshold of representativeness. Whereas all rights conferred by section 12 are subject to such thresholds.

Leave to appeal by dismissed appeal

In the result, the Court granted leave to appeal but dismissed the appeal with no order as to costs.

Minority judgment 1

In the minority judgment, Cachalia AJ (Froneman J concurring) agreed that the matter is moot but did not think that it was in the interests of justice to hear the matter. The dispute between the parties had not been live since February 2013. POPCRU must have become aware of the mootness of the matter in 2013 when this dispute was being considered by the Labour Court. SACOSWU says it became aware in 2015 and failed to inform the CCMA during a dispute with POPCRU concerning the applicability of section 21(8C) of the LRA. Both parties had a duty to inform the Labour Court and the CCMA respectively and they failed in that duty and hearing the matter would condone the parties’ conduct. The interpretation of section 18 would have no residual impact on the parties. The interpretation of section 18 will further have broader impact as should the dispute regarding the reach of threshold agreements concluded in terms of section 18 arise in the future, as it no doubt will, the new statutory regime governing threshold agreements, which now includes section 21(8), and particularly sections 21(8A) and
21(8C), will apply. Cachalia AJ would have dismissed the application for leave to appeal.

Minority judgment 2

In a separate judgment Zondo DCJ agreed with both the first and the second judgments that the matter was moot. He also agreed with the second judgment that it was in the interests of justice that this Court entertain the matter and decide it on the merits.

The Deputy Chief Justice also agreed that the appeal should be dismissed. However, his reasons differed from those given in the second judgement. Zondo DCJ took the view that in our law organisational rights can be acquired contractually or statutorily. He said that the LRA makes provision for statutory organisational rights and section 20 of the LRA constituted an acknowledgement that a trade union may acquire contractual organisational rights by concluding a collective agreement with an employer.

Zondo DCJ pointed out that to acquire statutory organisational rights a trade union does not need the consent of the employer but simply needs to meet the requirements of the LRA that it must be sufficiently representative of the employees of the employer in a particular workplace whereas, to acquire contractual organisational rights, a trade union does not need to meet the levels of representativeness prescribed by the LRA but needs to reach an agreement with the employer in terms of which the employer confers those organisational rights on the union.

The Deputy Chief Justice pointed out that an important distinction between statutory organisational rights and contractual organisational rights is that in the case of statutory organisational rights an employer has no right in law to terminate them as long as the union concerned continues to meet the statutory requirement that it must be sufficiently representative of the employer’s employees in the relevant workplace whereas, in the case of contractual organisational rights, an employer does have a right to terminate contractual rights by simply giving a lawful notice of termination of the collective agreement.

The Deputy Chief Justice held that the organisational rights that the DCS granted SACOSWU were contractual organisational rights whereas the threshold fixed in the collective agreement between the DCS and POPCRU related to statutory organisational rights. Zondo DCJ, therefore, concluded that the DCS was not precluded by the LRA from concluding a collective agreement conferring contractual organisational rights on SACOSWU while its collective agreement with POPCRU was still operational even though SACOSWU did not meet the threshold fixed in that collective agreement between the Department and POPCRU.

Zondo DCJ then concluded that the appeal by POPCRU fell to be dismissed but that there should be no order as to costs.

Media  summary – 15 February 2018

On 15 February 2018 at 10h00 the Constitutional Court will hear an application instituted by Police and Prisons Civil Rights Union (POPCRU), a majority trade union of employees in the Department of Correctional Services (DCS), wherein it seeks leave to appeal against the whole of a judgment of the Labour Appeal Court.

The Labour Appeal Court found that the DCS was entitled to enter into an agreement granting organisational rights in terms of sections 12, 13 and 15 of the Labour Relations Act (LRA) to South African Correctional Services Workers’ Union (SACOSWU), a minority trade union (the first respondent). These rights were the subject of a section 18(1) collective bargaining agreement that set a membership threshold for the acquisition of these rights; SACOSWU’s membership fell short of this threshold.

The background to this matter is as follows. On 8 November 2001, POPCRU entered into a collective bargaining agreement with DCS in terms of which the threshold for admission to the DCS’s Bargaining Council for a single registered union, or for two or more registered unions acting jointly, was agreed to be 9 000 members, which amounts to approximately 22,5% of employees (“threshold agreement”). The threshold agreement also regulates the representation of employees at disciplinary and grievance proceedings. A second collective bargaining agreement regulates relations between all employees and DCS, and provides that only unions admitted to the Bargaining Council or any sector of the Bargaining Council will have the following rights: (1) union access to the workplace; (2) access to stop-order facilities for union subscriptions; (3) leave for union activities; (4) use of facilities; and (5) the right to elect shop stewards.

SACOSWU, a minority trade union with about 1 500 members entered into the collective bargaining agreement in question with DCS as per section 20 of the LRA around 10 October 2010. This collective agreement gave SACOSWU rights to organise union activities outside working hours; represent its members at disciplinary hearings and to assist members in grievance procedures; and to deduct subscriptions from its members.

POPCRU took issue with the collective bargaining agreement entered into between DCS and SACOSWU, arguing that it was unlawful since DCS was bound by the threshold agreement not to grant organisational rights to minority trade unions. On this basis, POPCRU referred the matter to the General Public Service Sector Bargaining Council (GPSSBC) for conciliation, but the dispute was not resolved The dispute was then referred for arbitration. The arbitrator found that the collective bargaining agreement entered into by SACOSWU and DCS was valid. POPCRU appealed to the Labour Court which found in its favour, holding that a collective bargaining agreement regulating the issue of organisational rights would have preference over any other provision in statute relating to organisational rights. SACOSWU then successfully appealed to the Labour Appeal Court. The Labour Appeal court relied on Numsa v Baderbop (Pty) Limited (Baderbop), a decision of the Constitutional Court in 2003, and held that a section 18 threshold agreement sets a minimum threshold for automatic acquisition of rights and is not a barrier to minority trade unions obtaining the same through their own collective bargaining.

In the Constitutional Court, the central dispute between the parties concerns the proper interpretation of sections 18 and 20 of the LRA. POPCRU argues that a section 18 collective bargaining agreement is binding, in terms of section 23 of the LRA, on all parties and other employees and trade unions not party to the threshold agreement. Consequently, an employer cannot enter into another collective bargaining agreement with a minority trade union granting that trade union rights regulated in a section 18 collective bargaining agreement. SACOSWU, on the other hand, contends that a section 20 collective bargaining agreement trumps a section 18 collective bargaining agreement as section 20 states that “nothing” in that Part of the LRA prevents a minority trade union from entering into a collective bargaining agreement with the employer. Section 23, which POPCRU argues gives the threshold agreement its binding effect, falls into a different Part of the LRA. SACOSWU relies on the Constitutional Court’s interpretation of section 20 in Baderbop. POPCRU argues that this case is distinguishable from Baderbop because there was no threshold agreement in issue in that case. It further contends that such an interpretation would be contrary to the principle of majoritarianism, which is central to the LRA.

SACOSWU has further argued that this matter is moot, because the threshold agreement on which POPCRU’s case rests has been superseded by a subsequent agreement.

Note: Footnotes omitted and emphasis added

ZONDO DCJ:

Introduction

[112] I have read Cachalia AJ’s judgment (first judgment) and Jafta J’s judgment (second judgment) in this matter. While I agree with the conclusion in both judgments that this matter is moot, I do not agree with the first judgment that it is not in the interests of justice that leave to appeal be granted. Instead, I agree with the conclusion in the second judgment that it is in the interests of justice to entertain this matter and to grant leave to appeal. I do so for the reasons given in the second judgment. I write separately to deal with the merits of the appeal from a somewhat different angle.

Constitutional and statutory background

[113] Section 23(2)(c) of the Constitution confers on every worker the right to strike. Section 23(5) reads:

“(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 legislation may limit a right in this Chapter, the limitation must comply with section 36(1).”

[114] Section 18(1) and (2) of the LRA provides:

“(1) An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace, or the parties to a bargaining council, may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15.
(2) A collective agreement concluded in terms of subsection (1) is not binding unless the thresholds of representativeness in the collective agreement are applied equally to any registered trade union seeking any of the organisational rights referred to in that subsection.”

Section 18(1) makes it legally possible for a majority trade union and an employer in a workplace to conclude a collective agreement that sets a threshold that any trade union would need to meet in order to enjoy the organisational rights in the workplace that are provided for in sections 12, 13 and 15 of the LRA.

[115] Section 23(1) renders a section 18(1) collective agreement binding even on employees who are not members of the registered trade union that is party to a section 18(1) collective agreement if the requirements of section 23(1)(d) are satisfied. Section 23(1) reads:

“(1) A collective agreement binds—
(a) the parties to the collective agreement;
(b) each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them;
(c) the members of a registered trade union and the employers who are members of a registered employers’ organisation that are party to the collective agreement if the collective agreement regulates—
(i) terms and conditions of employment; or
(ii) the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers;
(d) employees who are not members of the registered trade union or trade unions party to the agreement if—
(i) the employees are identified in the agreement;
(ii) the agreement expressly binds the employees; and
(iii) that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.”

[116] It is also appropriate to quote section 23(2), (3) and (4). Those provisions read:

“(2) A collective agreement binds for the whole period of the collective agreement every person bound in terms of subsection (1) (c) who was a member at the time it became binding, or who becomes a member after it became binding, whether or not that person continues to be a member of the registered trade union or registered employers’ organisation for the duration of the collective agreement.
(3) Where applicable, a collective agreement varies any contract of employment between an employee and employer who are both bound by the collective agreement.
(4) Unless the collective agreement provides otherwise, any party to a collective agreement that is concluded for an indefinite period may terminate the agreement by giving reasonable notice in writing to the other parties.”

[117] The effect of a section 18(1) collective agreement that satisfies the requirements of section 23(1)(d) is that in a workplace employees who are not members of the union that is party to the section 18(1) collective agreement are bound by the threshold fixed in the section 18(1) collective agreement. This is despite the fact that they are not members of the union that is a party to the section 18(1) collective agreement. Also, a trade union that is not a party to the section 18(1) collective agreement but seeks to acquire the organisational rights in sections 12, 13 and 15 despite not being a sufficiently representative trade union is bound by the section 18(1) collective agreement. This will be so if the employees on the basis of whose membership the union seeks the organisational rights are bound by the section 18(1) collective agreement in terms of section 18(1)(d). This would be despite the fact that such a trade union is not a party to the section 18(1) collective agreement.

Factual background

[118] The Department of Correctional Services (Department) concluded a section 18(1) collective agreement with POPCRU which was the majority union in the Departmental Bargaining Council. That collective agreement fixed 9 000 union members in the Department as the threshold that every union had to meet before it could acquire the relevant organisational rights provided for in the LRA. While the section 18(1) collective agreement with POPCRU was operational, the Department concluded a collective agreement with the South African Correctional Services Workers Union (SACOSWU) in terms of which it granted SACOSWU certain organisational rights despite the fact that that union did not meet the threshold fixed in the section 18(1) collective agreement between the Department and POPCRU.

[119] After the Department and SACOSWU had concluded the collective agreement, a dispute arose between POPCRU, on the one hand, and, the Department and SACOSWU, on the other. In effect the dispute was whether the Department was entitled to conclude a collective agreement with SACOSWU granting it the organisational rights that it granted it despite the fact that the Department was party to the section 18(1) collective agreement with POPCRU requiring any union seeking the organisational rights provided for in the LRA to meet the threshold of 9 000 union members. This dispute arose because SACOSWU did not meet that threshold.

Issue in the arbitration

[120] The dispute was referred to arbitration in terms of the LRA. The parties to the arbitration were POPCRU, on the one hand, and, the Department and SACOSWU, on the other. In his arbitration award the arbitrator recorded the following as part of the Department’s contentions:

“12.3 There is, therefore, nothing to preclude an agreement with an unrepresentative union [that] confers organisational rights on it, provided such an agreement does not prevent the exercise of statutory organisational rights by the representative union.”

In recording SACOSWU’s allegations or contentions, the arbitrator included the following:

“SACOSWU alleges the following:
13.1 That an agreement was concluded between the Department and itself, as a minority trade union, in terms of section 20 of the LRA and, in terms of which the Department granted to it organisational rights outside chapter III of the LRA, namely, that:
…
13.4 SACOSWU contends further that POPCRU has, in the circumstances, suffered no prejudice in the rights granted by the Department to SACOSWU in that POPCRU is in no way being prevented from exercising any of its statutory organisational rights.”

Again, we see a reference to the concept of statutory organisational rights.

[121] The arbitrator defined the issue that he was required to decide in the following terms:

“The issue to be decided is:
14.1 whether SACOSWU is entitled to exercise any of the organisational rights provided for in section 12, 13, 14, 15 or 16 of the LRA in the workplace of the Department; and
14.2 whether SACOSWU, as a minority and ‘unrepresented’ trade union, is entitled to conclude an agreement with the Department in terms of which the Department grants SACOSWU organisational rights outside chapter III Part A of the LRA and if so, whether such an agreement is valid and enforceable.”

[122] From the manner in which the arbitrator defined the issue that he was called upon to decide, it is clear that the dispute was based on whether in our law it can be said that we have statutory organisational rights and contractual organisational rights. As explained elsewhere in this judgment, the statutory organisational rights are those conferred by or “provided for in” the LRA as reflected in paragraph 14.1 of the arbitration award quoted above. The contractual organisational rights are those that paragraph 14.2 of the arbitration award quoted above describes as the “organisational rights outside Chapter III Part A of the LRA…”

[123] Even in its submissions before the arbitrator, as recorded in paragraph 17.10 of the arbitration award, SACOSWU made the following submission:

“17.10 A narrow reading of section 20 is inappropriate. A better reading is to see it as an express confirmation of internationally recognised rights of minority unions to gain access to organisational facilities through the techniques of collective bargaining. Section 20 of the LRA permits [un]representative trade unions to regulate organisational rights outside the ambit of Part A of Chapter III of the LRA. The fact that it is silent on collective agreements with unrepresentative trade union[s] does not preclude such agreements, provided that such agreements do not prevent the exercise of statutory organisational rights by a representative union.
17.11 Chapter III Part A automatically gives the representative unions organisational rights without them having to bargain for them. This provision ought not to be read as to deny these rights to unrepresentative unions.
…..
17.14 POPCRU is entitled as of right to the statutory organisational rights. SACOSWU is seeking basic organisational rights outside Chapter III of Part A of the LRA.”

[124] In his arbitration award the arbitrator concluded that:

“(s)ection 20 of the LRA permits representative unions to regulate organisational rights outside of the ambit of Part A and permits the modification of those rights by way of an agreement. The section is silent on collective agreement(s) with unrepresentative unions. The LRA does not prohibit these agreements either. There is therefore nothing to preclude an agreement with an unrepresentative union which confers organisational rights on it, provided such agreement does not prevent the exercise of statutory rights by a representative union. Thus, properly construed, section 20 refers to agreement outside the ambit of Part A.”

Later on, the arbitrator articulated his conclusion in these terms:

“I find that SACOSWU is entitled and did enter into a valid collective agreement with the Department to exercise the organizational rights referred to in section 12, 13, 14, 15 and 16 of the LRA outside Chapter III Part A of the LRA.”

The arbitrator concluded that the Department and SACOSWU were entitled to conclude the collective agreement that they concluded as the organisational rights which were the subject of that collective agreement fell outside Part A, of Chapter III of the LRA.

Labour Court and Labour Appeal Court

[125] POPCRU subsequently instituted a review application in the Labour Court to have the award reviewed and set aside. That application succeeded. However, on appeal, the Labour Appeal Court concluded that the Department and SACOSWU were entitled to conclude the collective agreement. Accordingly, the Labour Appeal Court overturned the decision of the Labour Court.

In this Court

[126] The question before us is whether the Department was entitled to enter into a collective agreement with SACOSWU granting that union the organisational rights that it did despite the fact that its section 18(1) collective agreement with POPCRU was still binding upon it and SACOSWU did not meet the threshold fixed in the section 18(1) collective agreement. Although the Labour Court may not have necessarily formulated the question in these terms, its conclusion was that the Department was not entitled to do so. The Labour Appeal Court also did not formulate the question in these terms but the effect of its conclusion is that the Department was entitled to do so.

[127] The question is one that requires a construction of certain provisions of the LRA. Purposive interpretation must be invoked to interpret provisions of the LRA. This is consistent with section 3 of the LRA which tells us how the interpretation of provisions of the LRA should be approached. Section 3 provides that:

“Any person applying this Act must interpret its provisions—
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.”

[128] The primary objects of the LRA are listed in section 1 thereof. In part section 1 reads:

“The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are—
(a) to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution of the Republic of South Africa, 1996;
(b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation;
(c) to provide a framework within which employees and their trade unions, employers and employers’ organisations can—
(i) collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and
(ii) formulate industrial policy; and
(d) to promote—
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision-making in the workplace; and
(iv) the effective resolution of labour disputes.”

[129] The LRA did not occur in a vacuum. There was a labour law dispensation before the LRA. Indeed, much of the experience and knowledge that South Africa acquired before the current LRA was incorporated into it. A good example of this is that the provisions of the LRA relating to unfair dismissals are based on much that comes from our experience of labour law on unfair dismissal in the 1980’s and early 1990’s. One of the labour law experiences of the period prior to 1994 is that there was no statute that expressly conferred organisational rights on trade unions. Unions acquired organisational rights contractually, usually after some industrial action. That means by concluding agreements with an employer.

To achieve that, a trade union would start by recruiting employees in a workplace as its members. Once it had reached a certain level of representativeness in the workplace, it would demand that the employer grants it certain organisational rights such as access to the workplace to serve the interests of its members, representing them in disciplinary and grievance proceedings and the deduction of monthly union dues from its members’ wages and transmission thereof to the union. Usually, a recognition agreement that would be entered into would cover most, if not all, the organisational rights that we find in the LRA.

[130] Prior to the LRA, if a trade union did not acquire organisational rights contractually, it could acquire them judicially on the basis of the wide concept of an unfair labour practice which was provided for in the labour legislation of the time. To acquire organisational rights judicially, a trade union would initially refer an unfair labour practice dispute to the conciliation process in terms of section 35 of the Labour Relation Act, 1958, as amended. If that process failed, the trade union could then refer an unfair labour practice dispute to the Industrial Court for determination in terms of section 46(9)(c) of that Act.

[131] When the LRA was passed, it made provision for organisational rights. In fact it confers various organisational rights on any registered trade union in a workplace that is sufficiently representative of the employees of the employer in that workplace. To acquire most of the organisational rights for which the LRA make provision, a registered trade union does not need to have the status of a majority trade union in the workplace. It is enough if a union is sufficiently representative of the employer’s employees in the workplace. However, there are one or two organisational rights that a trade union acquires only if it enjoys the status of a majority trade union.

[132] The question that arises is whether the fact that the LRA now makes provision for organisational rights means that an employer and a trade union that is not sufficiently representative of the employees of the employer in a workplace as envisaged in the LRA in regard to specific organisational rights may still conclude a collective agreement which confers upon the union organisational rights as was the position prior to the LRA or is the position that the only organisational rights that exist in our law now are the statutory organisational rights provided for in the LRA. In my view, there are no provisions in the LRA on the basis of which one can justify a conclusion that the contractual acquisition of organisational rights which was available to trade unions before the LRA is no longer available now or was abolished by the LRA. On the contrary, section 20 reveals that the opposite is true. Section 20 reads:

“20. Certain organisational rights in collective agreements
Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights.”

[133] I draw attention to two features of section 20. The first is that the heading or bold part thereof refers to “organisational rights in collective agreements” and that in referring to organisational rights, it does so without saying “conferred by this Part” or “referred to in this Part.” It simply refers to “organisational rights”.

The significance of this is that the LRA recognises that there is a distinction between the organisational rights conferred by the LRA or the organisational rights referred to in Part A of Chapter III of the LRA. So, section 20 contemplates organisational rights in collective agreements whereas the organisational rights dealt with in Part A of Chapter III of the LRA are not rights in a collective agreement but in a statute or conferred by statute.

[134] Support for the distinction referred to above is to be found in some of the sections in Part A of Chapter III where the phrase: “(t)he rights conferred by this section …” or similar phrases appear.

• Section 12(4) refers to “(t)he rights conferred by this section”.
• Section 18 refers to “one or more of the organisational rights referred to in sections 12, 13 and 15”. It also refers to “any of the organisational rights”.
• Section 21(1) refers to the “rights conferred by this Part in a workplace”.
• Section 21(8)(c) refers to “any of the organisational rights conferred by this Part”.
• Section 21(8A) refers to “the rights referred to in section 14”, “the rights referred to in sections 12, 13 and 15”, “the rights referred to in section 16”; “the rights referred to in sections 12, 13, 14 and 15”. Section 21(8C) refers to “the rights referred to in sections 12, 13 or 15”.
• Section 21(11) refers to the “withdrawal of any of the organisational rights conferred by this Part”.

[135] In Bader Bop this Court said about section 20:

“In my view, a better reading is to see section 20 as an express confirmation of the internationally recognised rights of minority unions to seek to gain access to the workplace, the recognition of their shop stewards as well as other organisational facilities through the techniques of collective bargaining”.

[136] This Court held in Bader Bop that the dispute procedure in section 21 of the LRA is only available to a trade union that is sufficiently representative if it wishes to determine the manner in which the rights are to be exercised or when there is a dispute as to whether the union is sufficiently representative. The Court then said:

“Section 21 on its own terms, however, is not available to a union that admits that it is not sufficiently representative as contemplated by the Act.”

The Court said that section 21

“should not be read to deny such unions the right to pursue organisational rights through the ordinary mechanisms of collective bargaining.”

[137] It seems to me that section 20 was enacted to make it clear that an employer and a trade union may still conclude a collective agreement concerning organisational rights outside of the LRA. The result is that in our law there are at least two types of organisational rights.

The one type is that of statutory organisational rights – those that are provided for in the LRA. A trade union does not need any agreement with an employer in order to become entitled to statutory organisational rights. All that is required of a trade union is to be a registered trade union and to be sufficiently representative of the employer’s employees in the workplace for purposes of those specific statutory organisational rights.

Once a trade union meets those two requirements, it becomes entitled to those statutory organisational rights. The employer has no right in law to terminate any of the statutory organisational rights in relation to a trade union as long as the trade union remains sufficiently representative of the employees in the workplace concerned for purposes of that statutory organisational right.

[138] The other type of organisational rights is that of contractual organisational rights. The statutory organisational rights differ from the contractual rights in that their source is the statute whereas the source of contractual organisational rights is a contract in the form of a collective agreement between a trade union and an employer. Another distinction between the two types is that, whereas an employer has no right in law to terminate a registered trade union’s statutory organisational rights, an employer may terminate a trade union’s contractual organisational rights by lawfully terminating the collective agreement.

In other words, an employer may terminate a contractual organisational right on the normal principles of the law of contract such as a material breach of the contract or by giving the requisite notice of termination. In fact section 23(4) of the LRA makes this clear.

It provides:

“Unless the collective agreement provides otherwise, any party to a collective agreement that is concluded for an indefinite period may terminate the agreement by giving reasonable notice in writing to the other parties”.

[139] The next question is whether what the Department granted to SACOSWU by way of the collective agreement concerning organisational rights was statutory organisational rights or contractual organisational rights. If it was statutory organisational rights, it was not entitled to do so while it was party to the section 18(1) collective agreement with POPCRU which fixed a certain threshold that SACOSWU did not meet. On general principles of contract, the Department needed to get out of the section 18(1) collective agreement with POPCRU before it could grant SACOSWU statutory organisational rights.

[140] A conclusion that says or implies that an employer may be party to both a section 18(1) collective agreement fixing a certain threshold of representativeness in the workplace that unions must meet if they want certain statutory organisational rights and at the same time also be party to a collective agreement granting those statutory organisational rights to a trade union which does not meet that threshold will spell the end of section 18(1) collective agreements. This is because such a conclusion will mean that a section 18(1) collective agreement has no efficacy and is not helpful to anybody, be it the employer or the majority union. The effect of such a conclusion will be that an employer who is party to a section 18(1) collective agreement may breach such an agreement with impunity.

[141] In my view, the organisational rights that the Department conferred on SACOSWU were not statutory organisational rights. They were contractual organisational rights. SACOSWU did not meet the conditions prescribed for the acquisition of the relevant statutory organisational rights, namely being sufficiently representative of the Department’s employees required for the relevant organisational rights. Therefore, SACOSWU did not qualify for any of the statutory organisational rights.

[142] In its answering affidavit in the Labour Court SACOSWU referred to the organisational rights it was seeking or it had acquired as organisational rights referred to in the LRA. However, in a number of areas in that answering affidavit the deponent also made it clear that these were organisational rights falling outside of the LRA. Contractual organisational rights fall outside of the chapter on organisational rights in the LRA. I do not think that SACOSWU’s conduct in referring to the organisational rights as organisational rights provided for in the LRA converts contractual rights into statutory organisational rights.

[143] The threshold that a section 18(1) collective agreement fixes or imposes applies to statutory organisational rights and not to contractual organisational rights. I, therefore, conclude that an employer who is party to a section 18(1) collective agreement may conclude a collective agreement granting a union that does not meet the threshold fixed in the section 18(1) collective agreement contractual organisational rights. This is so because a section 18(1) collective agreement has nothing to do with contractual organisational rights. This, therefore, means that the Department was entitled to conclude the collective agreement that it concluded with SACOSWU concerning contractual organisational rights.

[144] The interpretation I have adopted above results in a regime in which statutory rights and contractual rights on the same subject exist side by side.

That is not an unusual situation in our law. In employment law an employer may be obliged by section 37(1)(b) of the Basic Conditions of Employment Act to give an employee at least two weeks’ written notice of the termination of the contract of employment whereas a clause in that employee’s contract of employment may oblige the employer to give the employee a month’s notice of termination.

In such a case we can see that there is a right to notice of termination provided for in a statute and a right to notice of termination provided for in a contract of employment. A termination of the contract of employment in breach of either periods of notice or both periods may result in an invalid termination of the contract of employment.

Indeed, a termination of the contract of employment in breach of either period of notice may well also constitute an unfair dismissal. Compliance with the statutory requirement of notice but not with the contractual notice requirement will not help the employer.

There must be compliance with both the statute and the contract.

[145]

• Another example is that an employee whose contract of employment does not contain any clauses governing the procedural fairness for dismissal is entitled to the statutory rights of procedural fairness contained in the LRA.
• Another example is where an employee’s contract has a clause dealing with rights to procedural fairness even though the LRA also has provisions relating to procedural fairness in regard to the termination of his or her contract of employment.
• The contractual provisions relating to procedural fairness exist as long as the contract exists but they may be amended. The statutory provisions relating to procedural fairness exist as long as the statute has not been repealed.
• A breach of the contractual provisions relating to procedural fairness which may render the dismissal either unlawful or unfair but a breach of the provisions of the LRA relating to procedural fairness result in a procedurally unfair dismissal.

[146] In so far as SACOSWU relied on this Court’s decision in Bader Bop, it is important to bear in mind that the issue that this Court had to decide in that case was not the same as the issue we are called upon to decide in the present case. In Bader Bop the issue was whether or not a trade union that is not sufficiently representative in a workplace may call upon workers to withhold their labour in support of a demand for organisational rights. There was no section 18(1) collective agreement in the picture in that case. In the present case the issue that was before the arbitrator was whether an employer who is party to a section 18(1) collective agreement with a majority trade union fixing a certain threshold to be met by any registered trade union seeking organisational rights provided for in the LRA may conclude a collective agreement with a trade union that does not meet the threshold fixed in the section 18(1) collective agreement granting the union organisational rights. The question is whether the decision of the arbitration is unreasonable and falls to be reviewed and set aside.

[147] Although the issue that this Court had to decide in Bader Bop was different from the issue that we are required to decide in the present case, there are, nevertheless a number of statement (dicta) made in Bader Bop which support the conclusion that the Department and SACOSWU were within their rights to conclude their collective agreement. In Bader Bop this Court inter alia said:

“[25] So far, the scheme of the Act is clear. Sufficiently representative trade unions, and those unions that claim to be sufficiently representative, may seek to enforce those organisational rights which they claim the Act confers upon them by adjudication (mediation and arbitration) or by industrial action. It is not clear what options (if any) those unions that are not sufficiently representative to be the beneficiaries of the rights conferred by Chapter III, Part A of the Act have to obtain organisational rights. There is no express provision of the Act regulating their position. The question that arises is whether the Act must necessarily be interpreted to preclude non-representative unions from obtaining organisational rights, either through agreement with the employer, or through industrial action.”

[148] For the above reasons I agree that the appeal should be dismissed. It is just and equitable that no order as to costs be made.