Popcru v Sacoswu (DCS)

Organisational rights threshold and there were different approaches to the problem.

“The second judgment, however, advances a further ground to support its conclusion that the interests of justice require that the appeal be heard: two apparent “errors” in the judgment of the Labour Appeal Court, which, it believes, would be binding, unless undone by this Court. It says that this “tips the scales in favour of reaching the merits”. The first “error”, it says, is that the Labour Appeal Court incorrectly held that the right to represent employees at disciplinary and grievance proceedings flows from section 12, whereas the right is explicitly recognised in section 14(4). The second is that the order of the Labour Appeal Court suggests, incorrectly, that section 20 permits employers and employees to enter into collective agreements whereas section 20 simply states that nothing in Part A of Chapter III precludes the conclusion of a collective agreement that regulates organisational rights.” [para 50]

Essence

Organisational rights threshold and proper interpretation of secs 18 and 20 of the LRA and the effect of collective agreements imposing minimum thresholds.

Decision

On appeal from the Labour Appeal Court, the following order is made:
1. The application for leave to appeal is granted.
2. The appeal is dismissed.
3. There is no order as to costs.

Judges

(CCT152/17) [2018] ZACC 24 (23 August 2018)

Coram: Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, and Petse AJ

Cachalia AJ (minority): [1] to [61]
Jafta J (majority): [62] to [111]
Zondo DCJ (concurring): [112] to [148]

Heard on: 15 February 2018 – Decided on: 23 August 2018

Related books

Darcy du Toit et al

Reasons

Court summary

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.

Quotations from judgment

Note: Footnotes omitted and emphasis added

CACHALIA AJ (Froneman J concurring):

Introduction

[1] This application for leave to appeal concerns a dispute between two rival unions over the right of a minority union to acquire organisational rights from an employer where the majority union has a pre-existing collective agreement with the employer setting a threshold of representativeness for admission to a departmental bargaining council, which the minority union does not meet.

[2] The majority union – the applicant – is the Police and Prisons Civil Rights Union (POPCRU). The minority union, which is a breakaway union from POPCRU, is the South African Correctional Services Workers’ Union (SACOSWU). It is the first respondent.

[3] The second respondent is the Minister of Correctional Services. The third respondent is LGP Ledwaba N.O. (arbitrator) in his official capacity as an arbitrator of the General Public Service Sectoral Bargaining Council (GPSSBC) who made the arbitration award, which POPCRU took on review. The fourth respondent is the GPSSBC. The second to fourth respondents are not participating in these proceedings.

[4] POPCRU seeks to prevent SACOSWU from obtaining a foothold in the Department of Correctional Services (DCS). It thus contends that its threshold agreement with the DCS, in terms of section 18 of the Labour Relations Act (LRA), prohibits the latter from bargaining with and entering into a collective agreement granting organisational rights to SACOSWU.

[5] SACOSWU, on the other hand, submits that section 18 merely authorises employers and majority unions, such as POPCRU, to establish a threshold for the automatic acquisition of the organisational rights referred to there. SACOSWU argues that section 18 does not – as section 20 makes clear – bar minority unions from bargaining for and obtaining the self-same organisational rights from an employer. As this matter involves the interpretation of the provisions of the LRA, this Court has jurisdiction.

Legislative framework

[6] It is apposite to set out the key provisions of the LRA that bear on the outcome of this dispute. These are sections 18 and 20 both of which are to be found in Part A of Chapter III. This Chapter deals with the acquisition of organisational rights by trade unions. Section 18 gives a majority trade union the right to conclude a collective agreement establishing a threshold of representativeness for the organisational rights referred to in sections 12, 13 and 15, which deal with trade union access to the workplace, stop-order facilities and recognition of shop-stewards, respectively.

[7] Section 18 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 threshold 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.”

[8] On the other hand, section 20 says emphatically that:

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

[9] SACOSWU contends that, on a proper interpretation of section 20, section 18 cannot be read to prevent minority unions that do not satisfy an agreed threshold from acquiring organisational rights. To do so, the argument continues, would effectively negate the use of the words “nothing in this Part” at the beginning of the section.

[10] On the other hand, POPCRU insists that section 18 must be read with section 23(1)(d) of the LRA, which provides that a collective agreement – which a threshold agreement contemplated in section 18 is – is binding on all employees in the workforce, including those who are not members of the majority union. This interpretation accords with the principle of majoritarianism, which promotes orderly collective bargaining. This means that SACOSWU is bound by the threshold agreement. Understood thus, so it is contended, minority unions such as SACOSWU are limited from acquiring rights identified in sections 12, 13 and 15 of the LRA.

Preliminary arguments

[11] However, before these submissions are considered, we have to determine a preliminary point. SACOSWU contends that this dispute is moot and not in the interests of justice to adjudicate because there is no live dispute between the parties since the threshold agreement that is the subject of the present dispute no longer exists.

[12] At the hearing of this application on 15 February 2018, POPCRU objected to us entertaining this issue because, it said, that it had insufficient time to respond to the factual allegations raised by SACOSWU. It also objected to the introduction of what it referred to as “new evidence” regarding the issue of mootness. As a result, the Court directed the parties to file affidavits and make further submissions on two issues regarding mootness.

The first was whether the Departmental Bargaining Chamber Resolution 7 of 2001, which is the threshold agreement that is the subject of the present dispute (2001 threshold agreement) had been ratified, and the second, was whether the 2001 threshold agreement was still in force following Resolution 1 of 2013, which repealed and replaced all previous organisational rights agreements. POPCRU responded on 2 March 2018 and SACOSWU, a week later. In the light of POPCRU having adduced further facts on this issue, I do not understand it to persist with its objection to the “new evidence”.

[13] POPCRU contends that, even if this Court were to find that the 2001 threshold agreement no longer exists, the issue in dispute in this appeal still raises an important question of law as to whether an employer and a minority trade union that does not meet the threshold of representativeness, may enter into a collective agreement granting the union organisational rights, even where there exists a threshold agreement with a majority union. It is, says POPCRU, therefore in the interests of justice to decide the question.

Background

[14] On 8 November 2001, the 2001 threshold agreement was concluded between the DCS and the recognised trade unions in the DCS. POPCRU was among the recognised unions. The 2001 threshold agreement set the threshold for admission of a single registered union to the Department of Correctional Service Council at 9 000 members. It also permitted employees to be represented at disciplinary and grievance proceedings by a fellow employee or a representative of a recognised trade union.

[15] Subsequently, on 4 December 2003, Resolution 9 of 2003 disestablished the Departmental and Provincial Bargaining Councils and established the provincial co ordinating chambers of the Public Service Coordinating Bargaining Council (PSCBC).

[16] On 22 April 2004, Resolution 3 of 2004 came into force for purposes of establishing provincial and national departmental chambers of the GPSSBC. According to this agreement, existing bargaining structures would cease to exist either at the launch of the newly established chambers or by 30 June 2004. Furthermore, all existing collective agreements were required to be ratified within a month of the establishment of the new chambers.

[17] In POPCRU’s response to this Court’s directions referred to earlier, it attached an unsigned affidavit from the General Secretary of the GPSSBC confirming that all collective agreements concluded in the previous council structure were ratified by the GPSSBC on 22 July 2005. The evidence is not entirely satisfactory as the resolutions proving this were not provided, but instead archived letters were relied upon. However, I am prepared to accept, in favour of POPCRU, that the 2001 threshold agreement was ratified.

[18] In addition to the 2001 threshold agreement, on 23 February 2006, Resolution 3 of 2006 was adopted. This agreement regulated the relations between the DCS and trade unions admitted to the Departmental Bargaining Chamber and it allowed for trade unions admitted to the PSCBC or complying with the threshold of representativeness in the DCS to have access to stop order facilities.

[19] So, when SACOSWU was registered as a trade union on 31 August 2009, the 2001 threshold agreement and Resolution 3 of 2006 governed the relationship between trade unions and the DCS.

[20] Upon registration, SACOSWU approached the DCS seeking to be granted certain organisational rights despite not having the minimum membership dictated by the 2001 threshold agreement.

[21] On 5 November 2010, the DCS acceded to SACOSWU’s request by allowing it to represent its members during grievance and disciplinary proceedings. It also granted SACOSWU facilities to deduct membership fees for a limited period of six months. The parties therefore understood that SACOSWU was given section 12 rights (access to premises to serve members’ interests at grievance and disciplinary proceedings) and section 13 rights (stop-order facilities).

[22] I pause to mention that in this Court there was no dispute between the parties as to whether the right of a representative union to serve its members’ interests as contemplated in section 12(1) includes the right of access to an employer’s premises for the purpose of representing its members in grievance and disciplinary proceedings. The application for leave to appeal was argued on this basis. However, the second judgment considers that the Labour Appeal Court incorrectly dealt with this as a section 12 right, whereas it is in truth a section 14 right. I revert to this issue later.

[23] POPCRU was aggrieved by the DCS having granted these organisational rights to SACOSWU because, it maintained, by so doing the DCS had contravened the 2001 threshold agreement and Resolution 3 of 2006. As a result, on 3 May 2011, it referred this dispute to the GPSSBC for conciliation maintaining that SACOSWU was not entitled to exercise any of the organisational rights contemplated under sections 12, 13, 14, 15 or 16. After conciliation, the dispute remained unresolved and was then referred to arbitration.

[24] On 16 February 2012, the arbitrator found that the 2001 threshold agreement did not preclude SACOSWU from concluding a collective agreement with the DCS. However, as at that date, SACOSWU no longer required the DCS to deduct subscriptions on its behalf as the six-month period had since lapsed. This issue had therefore become moot. The only issue still in dispute concerned SACOSWU’s section 12 right of access to the DCS’s premises for the purpose of representing its members in grievance and disciplinary proceedings, which was to be heard in the Labour Court on 18 July 2013.

[25] On 4 February 2013, by Resolution 1 of 2013, another organisational rights agreement came into force. It replaced all previous organisational rights agreements that fell within the scope of the GPSSBC. The 2001 threshold agreement and Resolution 3 of 2006 had then ceased to exist. This meant that there was no longer any section 18 agreement barring SACOSWU from acquiring organisational rights.

[26] It is not clear why the existence of Resolution 1 of 2013 and the fact that the 2001 threshold agreement had lapsed was not brought to the attention of the Labour Court when the matter was heard on 18 July 2013, five months later. It should have been.

[27] Nevertheless, the Labour Court adjudicated the dispute on review and, on 5 September 2013, delivered its judgment setting aside the arbitration award. It concluded that the 2001 threshold agreement precluded the DCS and SACOSWU from concluding a collective agreement on organisational rights. SACOSWU was granted leave to appeal to the Labour Appeal Court on 26 November 2015.

[28] In the interim, on 7 July 2014, another organisational rights agreement – Resolution 3 of 2014 – was concluded. It replaced Resolution 1 of 2013 and also repealed all earlier collective agreements.

[29] On 1 January 2015, section 21(8C) of the LRA came into operation. This section was introduced through an amendment to the LRA. It provides:

“[A] commissioner may in an arbitration conducted in terms of subsection (7) grant the rights referred to in sections 12, 13 or 15 to a registered trade union, or two or more registered trade unions acting jointly, that does not meet the thresholds of representativeness established by a collective agreement in terms of section 18, if—
(a) all parties to the collective agreement have been given an opportunity to participate in the arbitration proceedings; and
(b) the trade union, or trade unions acting jointly, represent a significant interest, or a substantial number of employees, in the workplace.” (Emphasis added.)

[30] It is apparent that this amendment substantially changed the statutory regime applicable to threshold agreements since the dispute between the parties began some four years earlier. The amendment bears directly on the mootness issue traversed later in this judgment.

[31] On 13 May 2015, soon after section 21(8C) came into force, SACOSWU referred another dispute it had with POPCRU regarding its acquisition of organisational rights to the Commission for Conciliation, Mediation and Arbitration (CCMA). SACOSWU sought to vary the agreement it had with the DCS for access to the premises after working hours to hold meetings during the lunch break. POPCRU, once again, opposed this. The Public Servants Association, PSCBC and GPSSBC were joined as respondents. SACOSWU contended that it had a “significant interest or a substantial number” of employees in the workplace as contemplated by section 21(8C) of the LRA and was therefore entitled to organisational rights in terms of sections 12 (access to premises) and 15 (trade union activities).

[32] In its response, POPCRU contended that because the 2001 threshold agreement had been revoked, section 21(8C) did not apply to the dispute. An arbitrator delivered his award on 22 March 2017. Upholding POPCRU’s contention, he found that “the section 18 agreement [that] POPCRU had relied upon in litigation before the courts had been revoked”. The arbitrator’s reference to “litigation before the courts” was to the judgment of the Labour Court and the pending appeal before the Labour Appeal Court in the current dispute.

[33] The Labour Appeal Court heard the appeal on 15 November 2016. It noted that section 12 rights (access to premises) remained the only live issue in dispute as the agreement between the DCS and SACOSWU regarding section 13 rights (access to stop-order facilities) had lapsed. However, it acceded to SACOSWU’s request to determine this issue as well. It is, however, troubling that neither party appears to have drawn the Court’s attention to the fact that the 2001 threshold agreement, which was at the centre of their dispute, had ceased to exist. Had they done so, which they were under a duty to, the Court would have had to consider whether the appeal was moot. It therefore adjudicated the dispute apparently unaware of this fact.

[34] On 31 May 2017, the Labour Appeal Court reversed the Labour Court’s decision. It held that the 2001 threshold agreement did not bar SACOSWU from obtaining organisational rights from the DCS. Its order read as follows:

“The collective agreement entered into with POPCRU in terms of section 18(1) of the LRA establishing representation thresholds for the exercise of organisational rights under section 12, section 13 and section 15 in the workplace of the Department of Correctional Services, does not prevent the Department from entering into a valid and enforceable collective agreement with SACOSWU in terms of section 20 to permit the union to represent its members at internal disciplinary and grievance proceedings in the workplace.”

[35] It appears, however, that the Labour Appeal Court inadvertently omitted a reference to the section 13 (access to stop-order facilities) dispute in its order, but nothing turns on this. However, the second judgment considers that the order erroneously suggests that collective agreements may be concluded “in terms of section 20”, which, in its view, requires correction. I disagree with this view and shall deal with this issue shortly.

[36] POPCRU now applies for leave to appeal the Labour Appeal Court’s order to this Court.

Mootness

[37] It is indisputable that the 2001 threshold agreement no longer exists. However, Resolution 3 of 2014, referred to earlier, does not bar the conclusion of future threshold agreements. Indeed, Resolution 2 of 2017, which came into operation on 27 June 2017, now establishes a new threshold of representativeness that registered trade unions must meet in order to exercise organisational rights in the public service. This means that if the new threshold agreement applies, SACOSWU will have to satisfy the requirements of section 21(8C) in order to secure organisational rights from the DCS, as it had attempted to do unsuccessfully before this Resolution was passed.

[38] Against this background, the issue as to whether the dispute is moot and should be entertained at all must be considered. The issue in this application, as I mentioned at the outset, is whether the 2001 threshold agreement prevented the DCS from concluding an organisational rights agreement with SACOSWU. The question of whether minority trade unions may acquire organisational rights was dealt with by this Court in Bader Bop and both the Labour Court and the Labour Appeal Court therefore had to consider the effect of Bader Bop in determining the dispute between POPCRU and SACOSWU.

[39] The Labour Court distinguished Bader Bop. The Labour Appeal Court, on the other hand, considered itself bound by it. POPCRU contended in this Court that the case was indeed distinguishable because the issue in Bader Bop did not involve a threshold agreement.

[40] Bader Bop concerned an attempt by a trade union, the National Union of Metalworkers of South Africa (NUMSA) – which represented only 26% of the workforce – to acquire organisational rights conferred by sections 12 to 15 of the LRA. The rights identified by sections 12, 13 and 15 may be conferred upon “sufficiently representative” trade unions, whereas those under sections 14 and 16, only upon majority unions. The employer was willing to afford NUMSA access to its premises and to stop-order facilities in terms of sections 12 and 13, respectively, but was not prepared to recognise its shop-stewards in terms of section 14, or to bargain collectively because it was not a majority union. NUMSA contested the employer’s view.

[41] The Court held that the fact that a trade union did not meet the requisite threshold membership levels did not bar it from using the ordinary processes of collective bargaining and industrial action to persuade an employer to grant it organisational facilities such as access to the workplace, stop-order facilities and recognition of their shop stewards. It bears mentioning that in the course of its reasoning in Bader Bop, this Court considered a suggestion by Du Plessis AJA, writing for the majority in the Labour Appeal Court, to the effect that an interpretation permitting a non representative trade union to acquire organisational rights in the face of a threshold agreement would render section 18 nugatory. But, the Court concluded, the more plausible interpretation was one that avoided limiting the constitutional right to bargain collectively and to embark on industrial action to secure it. It accordingly upheld NUMSA’s appeal.

[42] It is unnecessary to decide whether the fact that no threshold agreement was in issue in Bader Bop means this Court’s ratio decidendi (rationale for a decision) does not apply to the facts of this case. What is clear, however, is that in the absence of a threshold agreement, SACOSWU’s entitlement to acquire organisational rights through a collective agreement with the DCS is governed by Bader Bop. This means that the fact that SACOSWU is a minority union does not preclude it from acquiring organisational rights from DCS. I now turn to decide the issue of mootness.

[43] This Court’s jurisprudence regarding mootness is well settled. As a starting point, this Court will not adjudicate an appeal if it no longer presents an existing or live controversy. This is because this Court will generally refrain from giving advisory opinions on legal questions, no matter how interesting, which are academic and have no immediate practical effect or result. Courts exist to determine concrete legal disputes and their scarce resources should not be frittered away entertaining abstract propositions of law.

[44] But mootness is not an absolute bar to the justiciability of an issue. The Court may entertain an appeal, even if moot, where the interests of justice so require. In making this determination the Court exercises a judicial discretion based upon a number of factors. These include, but are not limited to, considering whether any order may have some practical effect, and if so its nature or importance to the parties or to others.

[45] In my view, the appeal is moot and the interests of justice do not require that it be entertained for the reasons that follow.

[46] This dispute became moot as soon as the 2001 threshold agreement was revoked more than five years ago, in February 2013. Since then, other than the dispute with POPCRU that was referred to the CCMA regarding SACOSWU’s attempt to vary its agreement with the DCS to allow it lunch time access to the premises, there has been no live dispute between the parties.

[47] The parties have been aware for a considerable period of time before this appeal that the 2001 threshold agreement was no longer in force. POPCRU must have been aware of this at least since February 2013, but failed to inform the Labour Court, contrary to its duty. SACOSWU says it only became aware that the 2001 threshold agreement had been revoked when POPCRU raised the issue before the CCMA in the dispute concerning the applicability of section 21(8C) of the LRA in 2015. It is, however, beyond cavilling that both parties failed in their duty to inform the Labour Appeal Court of the true state of affairs, as I mentioned earlier. It ill-behoves POPCRU to now accuse SACOSWU of opportunism in raising the mootness issue. So, even if the interpretation of section 18 has some residual relevance to the parties in this dispute – which I do not believe there is – it is not in the interests of justice to entertain it because this would merely condone their conduct.

[48] 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. In fact, there is currently precisely such a dispute regarding the application of section 21(8C) pending before the Labour Court. The regime that existed at the time the 2001 threshold agreement came into force, when Bader Bop was decided in 2003, is now completely different.

So, any future dispute regarding the binding effect of section 18 threshold agreements in the face of attempts by minority unions to acquire organisational rights will have to be determined having regard to the new statutory regime. In this regard, it must be noted that section 21(8D) provides that section 21(8C) applies to any dispute that is referred to the CCMA after the commencement of the Labour Relations Amendment Act 2014, irrespective of whether the collective agreement contemplated in subsection (8C) was concluded prior to such commencement date. This means that the new regime applies even if the collective agreement was concluded before section 21(8C) came into operation.

[49] Regarding the second judgment’s conclusion that section 21(8C) has no bearing on the meaning of sections 18 and 20 in the future and their possible effect on disputes concerning threshold agreements, one must pose the question: what would have happened if a similar dispute to the present had arisen after section 21(8C) was enacted?

The answer is self-evident. The resolution of the dispute would have taken an entirely different course. The issue before the arbitrator would have been whether SACOSWU, which does not meet the threshold of representativeness established by the threshold agreement, represented a “significant interest or substantial number of employees in the workplace” as contemplated in section 21(8C), and not whether the threshold agreement contemplated in section 18 precluded it from obtaining organisational rights. As I have pointed out earlier, this is exactly what happened earlier when SACOSWU referred a dispute regarding organisational rights to the CCMA in May 2015. It is therefore clear, with respect, that it is not only inappropriate to interpret sections 18 and 20 (without regard to section 21(8C)) but also not in the interests of justice to do so because this will have no practical effect on a future dispute of this nature.

[50] The second judgment, however, advances a further ground to support its conclusion that the interests of justice require that the appeal be heard: two apparent “errors” in the judgment of the Labour Appeal Court, which, it believes, would be binding, unless undone by this Court. It says that this “tips the scales in favour of reaching the merits”. The first “error”, it says, is that the Labour Appeal Court incorrectly held that the right to represent employees at disciplinary and grievance proceedings flows from section 12, whereas the right is explicitly recognised in section 14(4). The second is that the order of the Labour Appeal Court suggests, incorrectly, that section 20 permits employers and employees to enter into collective agreements whereas section 20 simply states that nothing in Part A of Chapter III precludes the conclusion of a collective agreement that regulates organisational rights.

[51] As regards the first “error”, that section 14(4) and not section 12 confers a right of an employee to be represented at grievance and disciplinary proceedings by a union, it must be pointed out, as already mentioned, that the application for leave in this Court was argued on the basis that the right to be represented at grievance and disciplinary proceedings was a section 12 right. In other words this was not an issue between the parties and no argument was advanced to the contrary.

[52] Furthermore, the true issue in this case was whether a threshold agreement concluded in terms of section 18 precluded the acquisition of organisational rights by a minority union. The ratio of the judgment deals with this issue. What was said about whether section 12(1) includes within its ambit the right to represent members at disciplinary and grievance proceedings is arguably obiter, and not binding on any other court.

[53] The Labour Appeal Court’s judgment approaches the issue on the basis that SACOSWU’s contention that the right in issue was a section 14 right and not a section 12 right was misplaced. Section 14 deals with the rights of majority unions – not minority unions – and section 14(4)(a), explicitly with the right of shop stewards of majority trade unions to represent employees in grievance and disciplinary proceedings. Section 12, on the other hand, deals with trade union access to the work place by “sufficiently representative” unions.

[54] The issue here is whether section 12(1), which permits access by shop stewards of sufficiently representative unions to enter the employers’ premises “in order to recruit members or communicate with members or otherwise serve their interests” includes within its ambit the right to represent members in disciplinary and grievance proceedings, and if so whether this right also extends to minority unions, such as SACOSWU, that have secured this right through collective bargaining.

[55] Given the wide import of the language employed in section 12(1) it may well be that there is no reason not to include the right of shop stewards of sufficiently representative unions to gain access to the workplace in order to represent their members in grievance and disciplinary proceedings. If this is so, then SACOSWU’s right is also a section 12 right, as the Labour Appeal Court held. However, the second judgment’s view that because this right is explicitly identified as a section 14 right and therefore cannot be a section 12 right, is also plausible.

[56] However, the issue was not argued in this Court, which places it at a disadvantage in trying to decide it. In Langeberg Municipality, this Court said that one of the factors to be taken into account in determining whether it is in the interests of justice to decide an issue is the “fullness or otherwise of the argument advanced”. It cannot be in the interests of justice to decide this issue where the answer is far from evident.

[57] But, if the second judgment is correct that section 12(1) cannot be interpreted to include the right to represent members in disciplinary and grievance proceedings, this would be a further ground on which not to entertain the appeal. This is because the only persistent ground that gave rise to the dispute between the parties was the right of access under section 12. If section 12 does not apply to the dispute, then section 18, which concerns threshold for representativeness in respect of only sections 12, 13 and 15 rights (not section 14 rights) is not applicable to this dispute at all; all the more reason not to entertain the appeal.

[58] Regarding the second “error” of the Labour Appeal Court alluded to in the second judgment, this, I think, misconstrues the meaning of the order. The order is set out at paragraph 34 above. Properly understood, and read in the context of the judgment, it does not mean that collective agreements may be concluded in terms of section 20, as the second judgment says it does. It simply means that nothing in section 20 prevents SACOSWU from entering into a collective agreement to represent its members in grievance and disciplinary proceedings despite POPCRU’s threshold agreement with the DCS having been concluded in terms of section 18(1). This is also clear from the judgment of the Labour Appeal Court. There was therefore no error in the order of the Labour Appeal Court that requires correction. In any event, I cannot see how a mistake in an order of a court can give rise to a binding incorrect interpretation of section 20 when there is no suggestion in the body of the judgment that the section was incorrectly interpreted.

[59] It follows that, far from tipping the scales in favour of reaching the merits, the first “error” in the judgment of the Labour Appeal Court – if it is one – is an argument against entertaining the merits of the appeal. And the second “error” turns out not to be one.

Conclusion

In view of the conclusion to which I have come on the mootness question, this Court should not decide the merits of the dispute. I would therefore dismiss the application for leave to appeal. Ordinarily this Court makes no costs order regarding disputes over interpretations of provision of the LRA. In this case, I may have considered departing from the ordinary rule in light of the failure by the parties to inform the Court a quo that the appeal had become moot once the 2001 threshold agreement was revoked. However, as both parties failed in their duty to draw the attention of the Court a quo to this fact, I think each should bear its own costs.

[60] In the result I would not grant leave to appeal.