Amcu v Chamber of Mines of SA (CCT87/16) [2017] ZACC 3 (21 February 2017) per Cameron J (Nkabinde ACJ, Froneman J, Jafta J, Madlanga J, Mbha AJ, Mhlantla J and Zondo J concurring)

In a unanimous landmark judgment the Constitutional Court held that adopting Amcu’s argument would ignore entirely the colour the LRA, and the rights it implements, gives to the interpretive process.  Num argued persuasively that adopting a “broad interpretation” effectively involves jettisoning the statutory definition and adopting a new, independently created, meaning of “workplace”, one that flows from the facts of this case.  But, as already said, there is no sound reason to depart from the statutory definition.

See:

Excerpts without footnotes

[4]   “In the workplace”. There’s the rub.

That brings to the fore the second pivotal provision.  It is the LRA’s definition of “workplace”.  This, in so far as it is relevant, stipulates that “workplace” means “the place or places where the employees of an employer work”.  But it adds a proviso:

“If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation”.[1]

[5]   So was each mine where AMCU had a majority an “independent operation” by reason of its “size, function or organisation”?

. . . . .

“Workplace”

[25]   Two things are immediately notable about the way the statute defines “workplace”.

The first is its focus on employees as a collectivity.  The second is the relative immateriality of location.  Both signal that “workplace” has a special statutory meaning.

[26]   First, “workplace” is not the place where any single employee works – like that individual’s workshop or assembly line or field or desk or office. It is where “the employees of an employer”, collectively, work.  The statute approaches the concept from the point of view of those employees as a collectivity.  This accords with the role the term “workplace” plays in the LRA.  This sees workers as a collectivity, rather than as isolated individuals.  And that in turn squares with the statute’s objects.  The promotion of orderly bargaining by workers, collectively, is one of the statute’s express primary objects.[1]  That the focus of the definition of “workplace” is on workers as a collectivity rather than as separate individuals fits.

[27]   The second point follows. It is that location is not primary: functional organisation is.  The definition encompasses one or more “place or places where employees of an employer work”.  This means that “the place or places” where workers work may constitute a single workplace.  That entails the intrinsic possibility of locational multiplicity for a single “workplace”.  Right at the outset this eliminates any notion, which the ordinary meaning of “workplace” might encourage, that each single place where a worker works is a separate “workplace”.

[28]   The first part of the definition creates a default rule that, regardless of the places, one or more, where employees of an employer work, they are all part of the same workplace. The second part superimposes a proviso in the form of an exception – regardless of how many places where employees work, different “operations” may be different workplaces only if they meet the criteria the definition specifies.  The key is whether an operation is independent – not where it is located.  Yet again, no significance is attached to the “places” where employees work, since the term features in both parts of the definition.  Each independent operation, which constitutes a separate “workplace”, may itself be at one or more separate locations.

[29]   Hence the proviso determines not so much whether separate physical places of work are separate workplaces, but rather whether independent “operations”, however geographically dispersed, are separate workplaces. The pivotal concept is independence.  If there are two or more operations and they are “independent of one another by reason of their size, function or organisation” then “the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation”.  This is a test of functional organisation, and not geography or location.

[30]   Both features of the definition – its approach to workers as a collectivity, and its de-emphasis of geography – have a practical bite. They signal that for purposes of the LRA “workplace” doesn’t have its ordinary meaning: the legislature has assigned a special meaning to the term.[2]

It follows that AMCU’s contention that the ordinary meaning of “workplace” applies, namely the geographical places of work of its members, at their individual mines, faces into a conceptual windstorm.  It must battle against not only the specified statutory wording, but the entire statutory context that supports that meaning and in which it is embedded.

[31]   It is this statutory definition the Labour Court and the Labour Appeal Court applied. Was each AMCU-majority mine a separate “workplace”?  That depends not on the mines’ geographic location or where the individual workers worked, but on the functional signifiers of independence the definition lists.  It requires one to determine whether the employer companies conduct two or more operations “that are independent of one another by reason of their size, function or organisation”.

[32]   On this question, the facts before the Labour Court and the Labour Appeal Court were not in dispute.[3] They related to the organisational methodology and practicalities of each mining company.  The Labour Court and the Labour Appeal Court both found, in conclusory terms, that the individual AMCU-majority mines did not constitute independent operations.  They were not swayed by the fact that, at some of the individual mines, the companies had concluded separate recognition agreements with AMCU.[4]  Each mining company constituted a single industry‑wide workplace.[5]

[33]   In the face of these findings, AMCU contended that the statute’s definition of “workplace” did not apply to section 23. After all, AMCU pointed out, the definitions apply only “unless the context otherwise indicates”.  And of course AMCU is right that “context” should be construed broadly.[6]  Nevertheless, its argument requires contextual indicators that negate the application of the definition.  Counsel for AMCU was invited in oral argument to give these but didn’t.  He simply said that the statutory definition cannot apply to a particular provision if it unreasonably limits a constitutional right.  This squared with AMCU’s argument overall that constitutional principles of interpretation pointed to a different result – namely that each individual mine was a “workplace” for purposes of section 23(1)(d).

[34]   So the argument that the statutory definition does not apply did not turn on independent interpretive indications. It invoked constitutional considerations.  But constitutional principle and the statute’s objectives don’t point away from the definition’s focus on workers as a collective, wherever they may work.  They point towards it.  Differently put, AMCU cannot plausibly argue that the statutory definition shouldn’t apply to section 23 because of constitutional principle or purpose-related statutory considerations.  Those in truth negative its argument.

[35]   AMCU contended that both the Labour Court and the Labour Appeal Court erred in approaching the meaning of “workplace” as solely a question of fact, to the exclusion of any interpretive analysis in which AMCU’s constitutional rights featured. AMCU has a point.  Well, sort of.  It is this.  Applying a statutory definition to the facts is seldom purely “a question of fact”.  It is not as though a definition displays a colour and you hold a garment up against it and ask whether it matches.

Rather, applying a definition is itself a question of verbal construction, in which constitutional values and statutory objectives remain ever-present.  Interpretation and application are coequal tasks.[7]  Establishing whether each mine is a “workplace” involves elements of both fact and law.  What is more, the LRA does not define either “independent” or “operation”.[8]  Each of these words is spongy with meaning.  AMCU is right that, when we apply the facts to these terms, we must keep the statute’s objectives in mind, and the constitutional principles underpinning them.[9]  The process is both evaluative and interpretive.[10]

[36]   Why is AMCU’s point only sort of?  Because AMCU conflates the Labour Appeal Court’s application of the statutory definition with the threshold question whether that definition applies at all.  AMCU contends that the Labour Appeal Court was wrong to find that the meaning of “workplace” in the context of section 23(1)(d) was solely a question of fact.  But its argument does that Court’s approach less than justice.  The Labour Appeal Court first concluded that the statutory definition of “workplace” applied to section 23(1)(d)[11] – and indicated, correctly, that this determination was a matter of interpretation.[12]  Its factual enquiry followed after.

[37]   So while AMCU is correct that the Labour Appeal Court found that determining whether the AMCU-majority mines constituted independent operations was a question of fact, this is not the same as saying that the meaning of “workplace” in the context of section 23(1)(d) was determined solely as a question of fact.

[38]   The question is not whether a single mine can constitute a “workplace”. It obviously can.  The definition expressly provides for that.  Instead, the critical issue is whether any of the five AMCU-majority mines was an independent operation by reason of size, function or organisation.  Both the Labour Court and the Labour Appeal Court determined that each mining house operated integrally as a single workplace, and that each AMCU-majority mine was not an independent operation.[13]  Even upholding AMCU’s argument that the application of the statutory definition is not a purely factual enquiry does not lead to a different finding.  No reason in constitutional principle, legal analysis or factual assessment provides a reason for this Court to overturn those findings.[14]  To this one should add that the findings of the Labour Court and the Labour Appeal Court are owed special consideration since they operate as specialist tribunals.

[39]   Nor is there any reason why this Court should intervene, against the grain of the statutory language, to impose what AMCU calls “the broad interpretation” of workplace. This would hold that each AMCU-majority mine is a workplace.  AMCU advances this “broad interpretation” on the basis that it is reasonably consistent with the wording of the statute and does not result in a limitation of constitutional rights.

[40]   That’s not right.  First, to adopt AMCU’s argument, the Court would have to ignore entirely the colour the statute and the rights it implements give to the interpretive process.  As NUM persuasively counters, adopting this “broad interpretation” effectively involves jettisoning the statutory definition and adopting a new, independently created, meaning of “workplace”, one that flows from the facts of this case.  But, as already said, there is no sound reason to depart from the statutory definition.

[41]   It follows that the agreement was validly extended to AMCU members at the five AMCU-majority mines. The question now is whether the statutory provision that allowed this withstands constitutional scrutiny.