Popcru v Sacoswu (DCS)

Organisational rights threshold and although the ConCourt held that the appeal was moot it was decided to consider the merits in the interests of justice and provide guidance concerning thorny issues concerning trade union rivalry in workplaces.

“Lastly, the order granted by the Labour Appeal Court suggests that SACOSWU and the employer could enter into an agreement in terms of section 20, for the union to represent its members at the grievance and disciplinary proceedings. Section 20 does not regulate agreements for the right to represent employees at disciplinary hearings. The section merely confirms the absence of a prohibition. It is not a source of power to conclude collective agreements.” [para 110]

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

(CCT152/17) [2018] ZACC 24 ; [2018] 11 BLLR 1035 (23 August 2018)

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

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

JAFTA J (Zondo DCJ, Dlodlo AJ, Goliath AJ, Khampepe J, Madlanga J, and Petse AJ concurring):

[61] I have had the benefit of reading the judgment prepared by my colleague, Cachalia AJ (first judgment). While I accept that the appeal is moot, I do not agree that the application for leave to appeal must be dismissed solely on that ground. It is true that this Court does exercise its discretion in favour of determining a moot appeal if the interests of justice so require.

[62] The question that arises at the outset is whether it is in the interests of justice to adjudicate the merits of the present appeal. Here lies the divergence between us. The first judgment concludes that it is not in the interests of justice to reach the merits because the parties were aware that the relevant collective agreement between POPCRU and the employer was no longer in force at the time the dispute was presented to the Labour Court for adjudication and both parties failed to bring this to the attention of that Court.

Entertaining the appeal would, the first judgment holds, amount to condoning the parties’ failure to inform the Labour Court of the true state of affairs. If a similar dispute arises in the future, it will be determined having regard to section 21 (8A) and (8C) of the LRA.

[63] I disagree. As is evident from the first judgment, the real dispute between the parties centred around the interpretation each party gave to sections 18 and 20. POPCRU contended that section 18 of the LRA precluded the employer from concluding a collective agreement that was contrary to an existing agreement between the employer and a majority union, in relation to organisational rights. For its part, SACOSWU argued that, properly construed, section 18 read with section 20 of the LRA does not prohibit an employer from engaging in collective bargaining and concluding an agreement with a minority union which does not meet the threshold qualification for organisational rights set in a collective agreement between an employer and a majority union.

[64] Therefore, at the heart of the dispute lies the correct meaning of sections 18 and 20. That meaning may be determined only through the interpretation of those provisions. Section 21 plays a very limited role in that exercise. Sections 18 and 20 must be construed with reference to their own language and should be given the meaning they had from the date the LRA came into operation on 11 November 1996. That meaning could not and was not changed by the addition of section 21(8A) to (8C) to the LRA, which was introduced in 2014. Instead, section 21 regulates the exercise of all rights conferred by Part A of Chapter III. Subsections (8A) to (8C) constitute a new regulatory framework governing how the rights in Part A may be exercised.

[65] In particular, section 21(8C) mandates an arbitrator to grant organisational rights provided for in sections 12, 13 and 15 to a registered trade union “that does not meet thresholds of representativeness established by a collective agreement in terms of section 18” if certain conditions are met. These include the fact that the union concerned must represent a significant interest or a substantial number of employees.

[66] The arbitrator’s power to grant rights has nothing to do with the interpretation exercise. Moreover, the meaning to be assigned to sections 18 and 20 is not restricted to the present dispute which has become moot. It will extend to all cases where these provisions find application. Therefore, I disagree with the conclusion implicitly reached in the first judgment that the determination of the merits here will have no practical effect on future disputes between other parties.

[67] It is apparent from paragraph 49, that the first judgment holds that since the promulgation of section 21(8C), a minority trade union which fails to meet the thresholds of representativeness established by a collective agreement between the employer and a majority union, may have to apply for permission from an arbitrator, in order to exercise organisational rights. This is advanced as a reason that makes it unnecessary to interpret sections 18 and 20. The conclusion that if the present dispute had arisen after section 21(8C) came into operation, SACOSWU would have applied for organisational rights from an arbitrator, is based on an assumption that it was obliged to do so. This is not correct. As mentioned, section 21(8C) introduced a further option in terms of which trade unions may acquire organisational rights contained in sections 12, 13 and 15.

[68] But the section 21(8C) option is available only to trade unions which meet the “significant interest or substantial number of employees in the workplace” requirements. A minority union that has no significant interest or substantial number of employees may not be granted organisational rights by an arbitrator. The interpretation of sections 18 and 20 would particularly be of importance to minority trade unions which do not meet the requirements of section 21(8C). Such unions would like to know if they could exercise their constitutional right to collective bargaining with a view to concluding an agreement that entitles them to organisational rights, if the employer is a party to a section 18 collective agreement with a majority union.

[69] The interpretation of sections 18 and 20 would also benefit minority unions which prefer to negotiate with the employer rather than acquiring organisational rights from an arbitrator. There is nothing in the LRA which obliges minority unions to follow the section 21(8C) route to acquisition of organisational rights. Therefore, it is necessary for this Court to determine whether section 18 has the effect of prohibiting a minority union from engaging in collective bargaining with an employer where a collective agreement that determines a threshold of representativeness exists between such employer and a majority union.

[70] Section 23 of the Constitution guarantees a number of rights, including the right to form or join a trade union of one’s choice and the right of every trade union to engage in collective bargaining. These rights cannot be limited by a private agreement between an employer and a majority union. But they may be limited by a law of general application provided it meets the requirements of section 36 of the Constitution. This provision emphatically declares that rights in the Bill of Rights may be limited only in terms of a law of general application.

[71] To conclude that the 2001 collective agreement precluded SACOSWU from bargaining with the employer here would constitute an impermissible limitation of SACOSWU’s right to engage in collective bargaining unless the prohibition is authorised by section 18. The meaning given to this section will have a practical effect on all future disputes involving agreements that declare thresholds of representativeness. This illustrates that a decision of this Court on the merits will be of great benefit to workers, trade unions and employers in the future. This is because section 18 of the LRA continues to apply to their relationships and the Act was enacted to give effect to rights in section 23 of the Constitution.

[72] In Langeberg Municipality this Court formulated the test for adjudicating a moot appeal in these terms:

“This Court has a discretion to decide issues on appeal even if they no longer present existing or live controversies. That discretion must be exercised according to what the interests of justice require. A prerequisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.”

[73] As mentioned, the interpretation to be given to sections 18 and 20 would clarify how these provisions should be implemented in the future. I do not agree that the coming into operation of section 21(8C) in particular has altered how sections 18 and 20 must be read and understood. In addition, factors like the importance of the issue involved in the merits of the case; its complexity and the fullness of the argument advanced on the interpretation of the relevant provisions, weigh heavily in favour of adjudicating the merits despite the mootness.

[74] Another factor that tips the scale in favour of reaching the merits is the apparent errors in the judgment of the Labour Appeal Court. For example, the order issued by that Court declares that the collective agreement between POPCRU and the employer did not prevent SACOSWU and the employer from concluding a similar agreement “in terms of section 20 to permit SACOSWU to represent its members at internal disciplinary and grievance proceedings”.

[75] Justification for the order issued by the Labour Appeal Court is found in paragraphs 39 to 44 of its judgment.

A number of statements are made in those paragraphs which appear to reflect an incorrect position in law. For instance, in paragraph 40 the Labour Appeal Court held:

“It follows that the section 18(1) agreement was correctly interpreted by the arbitrator to permit the conclusion of the agreement with SACOSWU allowing the union section 12 rights, in order to serve members’ interests by representing employees in disciplinary and grievance proceedings. Having found this to be so, it is not necessary to deal with SACOSWU’s contention that section 14 provided a right to such representation, save to state that the union’s reliance on that provision was misplaced in the circumstances of this matter.”

[76] This statement reveals a number of legal issues as seen by the Labour Appeal Court.

First, that in the Court’s opinion, the question whether SACOSWU was entitled to bargain with the employer in light of an existing collective agreement between the employer and POPCRU was correctly answered by interpreting the terms of the latter agreement. In other words, the determination of that important constitutional issue depended solely on the terms of the agreement between POPCRU and the employer. I have demonstrated already that this approach is at variance with the requirements of section 36 of the Constitution. The prohibition would be constitutionally permissible only if it was authorised by section 18 of the Act.

[77] Second, the statement suggests that the right to represent employees at disciplinary and grievance proceedings flows from section 12. This may not be accurate. This right is explicitly conferred by section 14. On the other hand, section 12(1) confers the right to enter the employer’s premises for purposes of recruiting members; communicating with existing ones and “otherwise serve members’ interests”.

[78] The order issued by the Labour Appeal Court suggests that the collective agreement that existed between POPCRU and the employer did not preclude SACOSWU and the employer from concluding “a valid and enforceable collective agreement” in terms of section 20 “to permit the union to represent its members at disciplinary and grievance proceedings in the workplace”. This order is based on the conclusion reached by the Labour Appeal Court that a collective agreement pertaining to organisational rights in sections 12, 13 and 15, may be concluded by a minority union and an employer under section 20 of the LRA. In paragraph 39 the Labour Appeal Court expressed itself in these terms:

“[S]ince the threshold agreement does not provide a bar to the conclusion of a section 20 collective agreement with the minority union regarding sections 12, 13 or 15 organisational rights, the existence of the threshold does not distinguish the matter from Bader Bop.”

[79] When this statement is read together with the order issued by the Labour Appeal Court, there can be no doubt that the Court held that collective agreements may be concluded under section 20.

This is plainly incorrect. Section 20 of the LRA does not confer rights. Rather, it makes plain that there is nothing in Part A of Chapter III which precludes the conclusion of a collective agreement that regulates organisational rights.

[80] Courts have entertained moot appeals in order to correct wrong statements of law in the judgments against which an appeal was brought. In AAA Investments this Court held:

“The issues may well be moot. Nonetheless, there are two conflicting judgments on these issues and, if we do not consider this aspect of the case, the judgment of the SCA with all its implications for future regulation would remain binding. In all the circumstances, I would hold that these issues are so crucial to important aspects of government as well as the rights contained in the Bill of Rights that it is in the interests of justice to grant leave to appeal. Neither the judgment of the Supreme Court of Appeal nor that of the High Court can be said to be unassailable.

[81] For all these reasons, I conclude that it is in the interests of justice to determine the merits of this appeal, despite mootness.

Merits

[82] Two issues arise.

  • The first is the proper interpretation of section 18 read with section 20 of the LRA.
  • The second is the correctness of certain legal conclusions reached in the judgment of the Labour Appeal Court.

But before construing the relevant provisions, it is necessary to recall the right approach to interpreting legislation that impacts on the rights guaranteed by the Bill of Rights.

Proper approach

[83] Section 3 of the LRA declares that its provisions must be construed purposively and in compliance with the Constitution and the public international law obligations of the Republic. In this context compliance with the Constitution includes the discharge of the obligation imposed by section 39(2) which obliges, in mandatory terms, every court to promote the objects of the Bill of Rights when interpreting legislation.

[84] Section 39(2) has received attention in many decisions of this Court. For present purposes a reference to one of them would suffice. In Makate we said:

“The objects of the Bill of Rights are promoted by, where the provision is capable of more than one meaning, adopting a meaning that does not limit a right in the Bill of Rights. If the provision is not only capable of a construction that avoids limiting rights in the Bill of Rights but also bears a meaning that promotes those rights, the court is obliged to prefer the latter meaning.”

[85] Implicit in this statement is the fact that at the outset of interpreting a legislative provision, a court must determine whether that provision implicates rights in the Bill of Rights. For if it does, then the approach stipulated in section 39(2) must be followed. As mentioned, here the provisions to be interpreted affect guaranteed rights like every worker’s right to form or join a trade union and the right to participate in the activities and programmes of the trade union. Section 18 also implicates the right of a trade union to engage in collective bargaining.

[86] The right to engage in collective bargaining lies at the heart of industrial relations. This right is conferred on trade unions and employers. This is the only right which may be exercised simultaneously by protagonists in a labour dispute. This is so because the bargaining takes place between the trade union and the employer. Participation of each side in the collective bargaining constitutes the exercise of the right. Absent the right, the objects of the LRA such as labour peace, social justice and the advancement of economic development may not be achieved.

[87] Notably, on the workers’ side, the right is conferred on a trade union. This makes membership of a trade union the gateway to collective bargaining for workers. Therefore, the right of every worker to form and join a trade union is critically linked to the right to engage in collective bargaining.

[88] The right to form and join a trade union guarantees freedom of association for workers. Its importance is acknowledged not only in the Constitution but also in international law. With regard to international law on freedom of association at the workplace, this Court observed in Bader Bop:

“An important principle of freedom of association is enshrined in Article 2 of the Convention on Freedom of Association and Protection of the Right to Organise which states: ‘[w]orkers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.’ Both committees have considered this provision to capture an important aspect of freedom of association in that it affords workers and employers an option to choose the particular organisation they wish to join. Although both committees have accepted that this does not mean that trade union pluralism is mandatory, they have held that a majoritarian system will not be incompatible with freedom of association, as long as minority unions are allowed to exist, to organise members, to represent members in relation to individual grievances and to seek to challenge majority unions from time to time.”

[89] Significantly, it emerges from this statement that the principle of majoritarianism which is embraced by our labour law is not incompatible with the principle of freedom of association which finds expression in the right to form and join a union of one’s choice. Workers form and join trade unions for protecting their rights and advancing their interests at the workplace. Any statutory provision that prevents a trade union from bargaining on behalf of its members or forbidding it from representing them in disciplinary and grievance proceedings would limit rights in the Bill of Rights. Forcing workers who belong to one trade union to be represented by a rival union at disciplinary hearings seriously undermines their right to freedom of association described earlier.

[90] In Bader Bop it was stated:

“Of importance to this case in the ILO jurisprudence described is firstly the principle that freedom of association is ordinarily interpreted to afford unions the right to recruit members and to represent those members at least in individual workplace grievances; and secondly, the principle that unions should have the right to strike to enforce collective bargaining demands. The first principle is closely related to the principle of freedom of association entrenched in section 18 of our Constitution, which is given specific content in the right to form and join a trade union entrenched in section 23(2)(a), and the right of trade unions to organise in section 23(4)(b). These rights will be impaired where workers are not permitted to have their union represent them in workplace disciplinary and grievance matters, but are required to be represented by a rival union that they have chosen not to join.”

[91] As it cannot be disputed that section 18 of the LRA implicates organisational rights of import, it goes without saying that in construing its provisions, we must avoid a meaning that limits those rights. If the section is reasonably capable of a meaning that promotes the rights concerned, it must be preferred above other meanings.

Meaning of section 18

[92] Section 18 reads:

“(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.”

[93] In unambiguous terms the section confers, on an employer and a majority union, the right to establish thresholds of representativeness. This right may be exercised by means of concluding a collective agreement in terms of which a threshold is agreed. This threshold relates to organisational rights mentioned in sections 12, 13 and 15 only. For a collective agreement so concluded to be binding, it must apply equally to all registered trade unions.

[94] The text of the section limits its content and scope to the right to determine a threshold in terms of a collective agreement. Section 18 does not authorise the employer and a majority union to determine which constitutional rights other unions that are not parties to the collective agreement, may exercise. The section does not refer at all to the right to engage in collective bargaining. Nor does it mention freedom of association, which enables every worker to form or join a trade union of their own choice.

[95] It is not surprising 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. Over and above that, the prohibition if it were to exist, would be meaningless. This is because section 20 declares that nothing in Part A of Chapter III, where section 18 is located, precludes the conclusion of a collective agreement that regulates organisational rights.

[96] In Bader Bop this Court rejected a narrow reading of section 20. O’Regan J said:

“Section 20 of the Act which forms part of Chapter III, Part A confirms this as follows: ‘Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights.’ Both Zondo JP and Du Plessis AJA were of the view that this provision did not mean that minority unions could conclude collective agreements affording organisational rights but is a ‘clarificatory provision’ which provides that agreements between representative unions (within the definition of the section) and employers may ‘regulate’ rights. Such a reading of section 20 is a narrow one and not one suggested by the ordinary language of the text which states that nothing in Part A of Chapter III prevents collective agreements being concluded. Any other provision of the chapter which suggests the contrary is to be read subject to this provision. In an Act committed to freedom of association and the promotion of orderly collective bargaining, which requires that employers and unions should have freedom to conclude agreements on all matters of mutual interest, a narrow reading of section 20 is an inappropriate one. Moreover, the rights conferred by Part A of Chapter III may in any event be regulated by the collective agreements expressly contemplated by section 21. 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.”

[97] It is important to note that this Court rejected the proposition that minority unions were precluded from concluding collective agreements on organisational rights where there was an existing agreement between the employer and a majority union. The Court preferred a wider reading of section 20, which was supported by the text and was also consonant with the LRA’s commitment to freedom of association and the promotion of orderly collective bargaining. It was held, in addition, that the wider reading was in line with “the internationally recognised rights of minority unions to seek to gain access to the workplace . . . through the techniques of collective bargaining”.

[98] In an attempt to avoid the conclusion that section 20 precludes an interpretation that says a minority union is prohibited from concluding a collective agreement with an employer who is a party to a section 18 agreement with a majority union, POPCRU contended that section 20 does not apply because the latter agreement becomes binding in terms of section 23. Section 23, the argument continued, is not located in the part referred to in section 20.

[99] There is no merit in this submission. The collective agreement that determines a threshold of representativeness is not authorised by section 23. It is section 18 that confers upon the employer and the majority union the right to conclude such an agreement. If section 20, which is dominant, allows the conclusion of a collective agreement between an employer and a minority union where a section 18 agreement exists, it cannot be said that section 23 precludes the conclusion of that agreement. Section 23 does not define the scope and content of section 18 or a collective agreement concluded in terms of the latter. Moreover, section 23 does not create a prohibition of any kind. All that it does is to identify parties bound by a collective agreement.

[100] Therefore, neither section 18 nor section 23 precludes the conclusion of a collective agreement between an employer and a minority union where a section 18 agreement between the same employer and a majority union exists.

[101] When properly construed Chapter III of the LRA reveals that a minority union may access organisational rights in sections 12, 13 and 15 in a number of ways.

  • First, it may acquire those rights if it meets the threshold set in the collective agreement between the majority union and the employer. In that event, a minority union does not have to bargain before exercising the rights in question.
  • Second, such union may bargain and conclude a collective agreement with an employer, in terms of which it would be permitted to exercise the relevant rights.
  • Third, a minority union may refer the question whether it should exercise those rights to arbitration in terms of section 21(8C) of the LRA.

If the union meets the conditions stipulated in that section, the arbitrator may grant it organisational rights in the relevant provisions.

[102] The interpretation of section 18 advanced by POPCRU here is not supported by the text of the provision. But not only that. POPCRU’s construction 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 has a majority or minority status.

In SATAWU this Court pronounced:

“Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations into them, and when legislative provisions limit or intrude upon those rights they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of bearing that meaning.”

[103] Furthermore, POPCRU’s interpretation of the relevant provisions is at variance with the constitutional canon of construction mentioned earlier. That interpretation is also dissonant with international law and in conflict with section 3 of the LRA which expressly demands that the provisions of the Act be construed in compliance with the Constitution and public international law. It follows that POPCRU’s interpretation must be rejected. Properly construed the relevant provisions do not prohibit the conclusion of a collective agreement with a minority union where the employer has signed an agreement that sets a threshold of representativeness with a majority union.

Labour Appeal Court Judgment

[104] Although the outcome reached by the Labour Appeal Court may not be altered, the pillars on which that outcome rests cannot be left intact. This is because that judgment constitutes a binding judicial precedent. The inaccuracies in the judgment of the Labour Appeal Court must be corrected.

The first error relates to whether it is the collective agreement between the employer and a majority union which may be construed as prohibiting agreements with minority unions. In a number of paragraphs, the Labour Appeal Court suggests that this is the position.

[105] As mentioned earlier, the rights guaranteed by the Bill of Rights may be limited by a law of general application only. Section 23(5) of the Constitution expressly states that the right to engage in collective bargaining may be limited by legislation only if such legislation meets the requirements of section 36. Therefore, an agreement that seeks to limit the right to collective bargaining would be inconsistent with the Constitution and invalid. Such agreement would have no force and effect in law. The focus of the Labour Appeal Court should have been on the interpretation of sections 18 and 20 of the LRA.

[106] The other error in the judgment of that Court is the suggestion that a union’s right to represent employees in grievance and disciplinary proceedings is sourced from section 12 of the LRA.

Section 12 gives unions the right of access to the workplace to exercise rights specified in that section. These include the right to recruit members, hold meetings and communicate with members.

[107] The right to represent employees at grievance and disciplinary proceedings is explicitly conferred on a majority union by section 14(4) of the LRA. 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.

[108] In Bader Bop this Court observed that the rights in sections 12, 13 and 15 are conferred on sufficiently representative unions and the rights in sections 14 and 16 are bestowed on majority unions. It was stated:

“Part A of Chapter III of the Act expressly confers enforceable organisational rights on certain unions – unions that are either sufficiently representative (sections 12, 13 and 15) or majority unions (section[s] 14 and 16). These are enforceable rights and the mechanism for their enforcement is also provided for in Part A. That mechanism is conciliation followed by arbitration. Unusually, in the overall scheme of the Act, unions and employers are given a choice between arbitration and industrial action should conciliation fail. There is nothing in Part A of Chapter III, however, which expressly states that unions which admit that they do not meet the requisite threshold membership levels are prevented from using the ordinary processes of collective bargaining and industrial action to persuade employers to grant them organisational facilities such as access to the workplace, stop-order facilities and recognition of shop stewards. These are matters which are clearly of ‘mutual interest’ to employers and unions and as such matters capable of forming the subject matter of collective agreements and capable of being referred to the CCMA for conciliation, the condition precedent to protected strike action.”

[109] However, I must hasten to mention that the conferment of rights on specified unions does not mean that other unions may not bargain with employers for entitlement to exercise any of the organisational rights in Part A of Chapter III. This is apparent from the decision of this Court in Bader Bop.

[110] Lastly, the order granted by the Labour Appeal Court suggests that SACOSWU and the employer could enter into an agreement in terms of section 20, for the union to represent its members at the grievance and disciplinary proceedings. Section 20 does not regulate agreements for the right to represent employees at disciplinary hearings. The section merely confirms the absence of a prohibition. It is not a source of power to conclude collective agreements.

Order

[111]  The following order is made:

  1.   Leave to appeal is granted.
  2.   The appeal is dismissed.
  3.   There is no order as to costs.